Towards Reconstructing the Meaning of Inhuman Treatment or Punishment: a Human Capability Approach

Abstract

The prohibition on “inhuman treatment” constitutes one of the central tenets of modern international human rights law. However, in the absence of any legislative definition of the term "inhuman", its interpretation becomes challenging.  The aim of this article is to critically analyze the interpretation of the term “inhuman” in international human rights law and to suggest a new approach to defining it. The first part of the article highlights the failure of supra-national institutions to provide an independent definition for the term “inhuman”, while mistakenly equating it to other forms of ill-treatment. The second part of the article introduces philosophical concepts necessary for reconstructing the conceptual independence of the term inhuman. It primarily focuses on “the capability approach” and the notion of “human functioning”, as developed by Martha Nussbaum.