The question of death and the deceased is at the core of the definition of human rights. Dead persons do not perceive harm: they are not in contact with the world and are unaware of reality considering they do not exist. They cannot claim their rights neither can they file a lawsuit. It could be argued that they are not human anymore, and that a dead body is like a piece of furniture. Unlike living people, dead people do not have experiences or aims. Thus the main question of the debate is: does no harm perceived mean no rights? And what are the necessary characteristics of a legal rights-holder?
So why does the law give the dead certain legal rights? The idea of interests surviving the death of its possessor could be treated as mere whim or even unnecessary.
The question of the human rights of the dead is closely linked to philosophical and policy discussions regarding moral rights over the bodies of mentally ill persons. Indeed, considering that dementia produces a complete discontinuity in personal identity, is there authority and therefore rights, without identity? The issue is similar with dead people who do not exist anymore: death involves the loss of legal personality, with the disappearance of consciousness and self-identity.
[...] The living have therefore an interest in respecting the wills of the dead because they personally have "expectations and concern for having their own wills respected" (Partridge) and want to maintain the "Social contract" and the moral community that secure the wishes of the deceased, and thus their future posthumous interests. But are the living only motivated to act solely with the intention of protecting social and moral order on behalf of their own eventual posthumous projects? No, because people also have a “conscience”, and also feel affection and loyalty to abstract moral principles and institutions. [...]
[...] This is because a decedent's interests decrease over time, while the interests of a living person can increase or decrease over time.” (Fabre Cécile, “Posthumous Rights”) - Conflicts of interest between the living and the dead It is up to the Court to decide when the decedent can be granted posthumous rights and when the ‘society's interests' become strong enough to overstep the former's autonomy (even if they would not be strong enough to go beyond a living person's rights). [...]
[...] The question of human rights of the dead is closely linked to philosophical and policy discussions regarding moral rights over the bodies of mentally ill persons. Indeed, considering that dementia produces a complete discontinuity in personal identity, is there authority and therefore rights, without identity? The issue is similar with dead people who do not exist anymore: death involves the loss of legal personality, with the disappearance of consciousness and self-identity. Finally, there is a conflict concerning rights and a fortiori rights for the dead, between the so-called and “interest” theories (none of these attempts of categorization and definition had produced a widely accepted legal definition). [...]
[...] It is the question of the memory, of the symbolic issue, that is at stake here, and that is why posthumous interests decline with time and why only the ‘newly-dead' as opposed to the ‘long-dead' hold rights. As a matter of fact, the newly-dead is a sort of interim between two categories, persons and things: is difficult to regard the newly-dead only as a mere corpse, a decaying organic matter, a mere ‘thing'” (Partridge Ernest, Posthumous Interest and Posthumous Respect). [...]
[...] A case in point revolves around the dead bodies on the U.S.-Mexico border : 2002, the Inter-American Court of Human Rights explored at some length the importance of a family's right to identify remains of relatives, to be notified of the location of their bodies, and to bury their deceased family members. It reviewed nations' obligations under international humanitarian and human rights law to set protocols and enact a framework of domestic laws to recover, identify and dispose of human remains in situations of armed conflict or natural disasters.” (Jimenez Maria, Humanitarian Crisis: Migrant Deaths at the U.S. [...]
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