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.
[...] This respect has of course limits. A review of several legal cases draws us four limitations which guide lawmakers and international law judges in determining which posthumous rights the human rights law should recognize: - impossibility “Even if a court wishes to recognize the autonomy of a decedent, the decedent's inability to perform some actions after death may prevent recognition of certain posthumous rights” (Smolensky) Impossibility, a term often used in contracts, refers to the inability to perform a contract: the law excuses the promisor because the thing promised simply cannot be done, it is impossible. [...]
[...] Finally, it is sometimes forgotten that rights of the dead and rights of the families should not be mixed up. A case in point is the dead 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. [...]
[...] In most instances, the rights of the dead are time-limited. The longer a decedent has been dead, the less likely a court is to extend a certain right to him or her. 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). [...]
[...] These are a man's body, his reputation and his estate.” Posthumous interests would be then a law created for the living, in the forecast of their own death. In the same line of thinking, some have put forward the argument of the “Social contract”. Although there are rights for the deceased, after all, "why person's wishes in the past should be heeded after his death, when, apparently, such a violation of his intentions will make no difference whatever to his totality of life, then complete?". [...]
[...] It is the question of the remembrance, 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 facts, 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). [...]
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