The Expiration Date of Human Rights: Rights of the Living and the Dead
Introduction
Mexico has been dealing with a forensic crisis for years. The crisis, which allegedly began in 2006 at the beginning of the war against drug trafficking, continues to worsen every year. More than 111,000 persons were registered missing in October 2023 in the interior ministry’s database, not including the many persons who went missing and were later found dead. (Eschenbacher 2023) These numbers continue to rise daily. The United Nations has expressed its concerns about the lack of effort put into the investigation of the disappearances and the identification of deceased persons. Despite the efforts of both the United Nations and the Red Cross to organise programs, thousands of decedents remain unidentified, continuing the heartbreak of many loved ones.
This crisis raises profound questions about the right to identity and personhood for the deceased. Did these missing persons and unidentified decedents lose their right to be identified the moment they were no longer presumed to be alive? Do human rights have an expiration date?
This paper seeks to address these questions by first elucidating what human rights entail and why the concept of human dignity is fundamental to these rights. It then explores the notion of legal death, especially the Presumption of Death, and the definition of posthumous rights. Finally, it examines whether human rights expire, arguing that while human rights do indeed have an expiration date, it is not necessarily set at the time of death. This discussion will incorporate the three factors – impossibility, value, and time – related to posthumous rights to provide a comprehensive answer.
To illustrate these points, the paper delves into the forensic crisis in Mexico as a case study. The disappearance of over 111,000 individuals has left countless families in a state of uncertainty. While volunteer groups and loved ones try their best to fight for the rights of these missing and/or presumed deceased persons, they are unable to fully combat the harm caused by the violence that persists in their country, nor by their government, which has stayed passive in easing it.
Through this case study, this paper argues that the lack of government action and the persistence of violence significantly shortens the period during which the posthumous rights of the missing and deceased are respected. The systematic silencing and threats faced by those searching for their loved ones further exacerbate the deterioration of these rights, demonstrating an urgent need for more robust legal frameworks and governmental action.
Human Rights and Dignity
In order to be able to argue whether human rights only apply to the living or also to the dead, the notion of human rights needs to be clear. The framework of rights is substantial and complex. Wesley Hohfeld famously managed to show that this framework can be organised, and he distinguished rights into four different types and incidents (Hohfeld and Cook 1923, 37). These are: the rights to claim, liberty, power, and immunity. From his framework, we can draw the following definition of human rights: ‘‘First, rights are moral constraints on the actions of agents; they constrain the behaviour of individuals who can understand and act for moral reasons. Second, rights are grounded in the fact that individual right-holders […] have their own aims and interests that are distinct from the aims and interests of others, and distinct from what would be best from some collective point of view’’ (Quong 2012, 623-624).
The foundation for these human rights is human dignity (Kleinig and Evans 2013, 559). The definition of dignity has been a debate within philosophy for a long time. However, the most used definition of dignity is ‘‘the essential and inviolable core of our humanity’’ (Lanigan 2008, 12), in other words, dignity as the quality of humanity. To better understand the idea of human dignity, it can be distinguished into four ‘‘strands’’ (Beitz 2013, 271). The first refers to dignity as a rank or status (2013, 271). The second refers to dignity as a value or a kind of value (2013, 272). According to Kant, the only thing that possesses this value is the moral law. Therefore, from the second strand follows that human beings have dignity through their capability to follow the moral law (Kant 2012). The third strand is the role of dignity in characterising and commending conduct (Beitz 2013, 272). From which follows that dignity can be understood as a generic human virtue and from which the fourth, and last, strand is suggested. This strand refers to dignity as the worthiness of respectful treatment that fits one’s dignified character (2013, 273).
From this definition follows that human dignity is not a mere value. The articulation of dignity in numerous international documents shows that dignity possesses a certain foundational significance (Kleinig and Evans 2013, 599). It can be said that the fourth strand, the deservingness of respect, is the most fundamental part of dignity in relation to human rights. The deservingness of respectful treatment is a foundation for both Human Rights as a concept as well as the idea of the right to human rights. The notion of respect as the foundation for human rights refers to the idea that every individual has a deservingness of respect, which grounds human rights. In other words, the idea that every individual is deserving of respect justifies as well as protects someone’s right to human rights. Thus, we can conclude that, as beings with dignity, we possess and should be granted basic human rights (Kleinig and Evans 2013, 559-560).
Death in Legal Terms
In the debate about the rights of decedents, the idea that dead bodies still carry some sort of (sentimental) value is of utmost importance. If human bodies are believed to carry some sort of significance, some sort of value, it might be expected and arguably logical for them to have rights.
Legally speaking, one cannot be believed to be dead without the presence of a dead body to confirm this. (Wicks 2017) The only exception to this is a Presumption of Death. According to the Presumption of Death Act set in 2013 by the English government, one can be presumed dead if they have not been known to be alive for a period of at least seven years (‘Presumption of Death Act 2013’, n.d.). The period of time before one can be declared dead differs per country, in Europe most countries hold that in cases of general disappearances – disappearances unrelated to any life-threatening situation – one, too, must be missing for at least seven years before they can be presumed deceased (Council of Europe 2009). In China, however, this period is four years (China National People’s Congress 2017), and Russia holds that one must be missing for five years before one can be declared dead (Consultant Plus, 2024). In light of the current crisis, Mexico reduced their former legislation and allows the issuance of a Presumption of Death after a mere year (Marquez 2012). Where formerly loved ones had to wait a minimum of two years to request a Declaration of Absence and an additional five years to apply for a Presumption of Death, as of 2012 they only need to wait a year. As a consequence, the number of missing persons in the Mexican Republic has seen rapid growth. Based on the juridical systems surrounding death, one can conclude that whether it is the lack or presence of it, a corpse is of significant value when it comes to determining someone as officially and legally deceased.
Posthumous Rights
Important to the discussion of the rights of the dead is that a decedent can either have posthumous rights or can be nothing more than a mere beneficiary. Being a beneficiary of rights entails that the decedent profits from the rights of a living person and is, therefore, merely a third-party beneficiary. A good illustration is that of wrongful deaths for which loved ones claim a certain institution or company to be – one way or another – responsible. These companies are often sued in the interest of the decedent; however, should this lawsuit result in the company having to pay a fine or large sum of money as a form of reparation, the next of kin of the decedent are the recipients. Posthumous rights, on the contrary, imply that the decedent is a rights holder. Posthumous rights are the rights of the dead, or more specifically, the rights that come into being after a person has passed away.
According to Kirsten Smolensky (2008), there are three factors when it comes to deciding whether posthumous rights are granted. The first factor refers to the inability of the decedent to perform their contract and is known as ‘impossibility’. The impossibility factor can give the decedent the right to, for example, not fulfil a contract as they cannot perform it. However, the impossibility factor does not only give decedents rights, it also takes constitutional rights from them. These rights include the right to vote, marry, or run for office. As it is impossible for a decedent to exercise these rights, they are taken away from them (Smolensky 2008, 775).
The second factor is the importance of the right itself. The court decides which rights are valued as important, and therefore more closely guarded, and which rights are seen as less important. The second factor holds that this principle is true whether one is living or dead. (Smolensky 2008, 782) Consequently, the law protects some fundamental rights after death as it would if the person were alive. However, the protection of such rights, for example, free speech or reproductive autonomy, seems illogical. Starting with free speech, one could argue that the factor of impossibility would dismiss this right as the decedent does not have the possibility to actively perform it. Some courts, however, have suggested that depending on the importance of the case, the right to free speech should be pursued even after the death of the plaintiff. In her article, Smolensky refers to the McIntyre case in which the court pursued Mrs. McIntyre’s claim – which stated that the (American) First Amendment should have protected her right to free speech – after her death. This case, according to Smolensky shows that Mrs. McIntyre’s right to free speech survived her death in order to protect her right to sue. The idea that the right to free speech goes beyond the death of a person follows from a view called Interest Theory, which holds that the dead have interests that survive death (2008, 766). Therefore, the right to free speech of the dead would entail that these ideas and interests have the right to be pursued after the decedent’s death.
As for the right to reproductive autonomy in posthumous cases, it becomes clear that one does not lose their autonomy when one dies. Reproductive autonomy, most of the time, is related to cases in which decedents’ sperm or egg cells are desired to be used for posthumous conception. In these cases, the court assumes that the decedent, before their death, had the autonomy to make pre-mortem decisions about what happens to their bodies after death (786). The court then continues this assumption of autonomy and follows the intent of the decedent when making a decision during these cases.
The third and last factor concerns time. This factor holds that the rights of the death are time-limited: the longer someone has been dead the less likely a court is to extend a certain right to them (Smolensky 2008, 789). The decedent’s interest cannot increase in time, as they are no longer consciously aware of their preferences. In addition, decedents need ties to other living people so that their preferences can be recorded. However, over the years these ties fade and so does the decedent’s influence. In other words, as the decedent’s influence fades, so do their legal rights. Following this, it can be argued that human rights have an expiration date. However, this date is not set at the time of death, but rather years after.
From these factors, it can be concluded that both autonomy, as well as dignity, are the driving force behind the creation of human rights, including posthumous rights. This is evidenced by the fact that the court and the law go to great lengths to support the wishes of the dead and ensure these wishes are respected. In doing so, they protect the dignity of the deceased.
Raising and Answering New Questions
Two questions arise from the given definition of posthumous rights and the factors relating to them. First: Were the factor of time taken to be true for both the dead as well as the living, would living people with little to no influence not also have little to no human rights? And secondly: If the expiration date of human rights is not at the time of death, then when is it set?
To answer the first question, it needs to be clarified that ‘influence’, as used in the factor of time, does not mean the power or ability to affect something or someone. Rather, influence relates to someone’s consciousness and ability to express their preferences, opinions, and ideas to those with whom they are in contact. Furthermore, these factors were meant to decide whether posthumous rights can be granted, and thus were not intended to be applied to human rights for the living. However, an additional rule could be introduced to prevent any confusion when it comes to enforcing these factors. This rule would state that for posthumous rights to be granted, all three factors must be true. Consequently, we can say that one has lost their rights over time if and only if they were already incapable of performing other rights and if the court has decided that the rights in question were not of much importance (anymore). This rule makes it, at the very least, very difficult to apply the third factor to rights concerning living persons.
Answering the second question is a bit more difficult. Smolensky’s three factors make clear that while the dead do have rights, these rights do not last forever. So, when do they expire? A possible answer we can take from the third factor is that rights fade as the decedent’s connection to life fades. This would mean that decedents lose their rights when they no longer have ties with living persons, for example, after those with ties to the decedent have also died. This possibility would, however, mean that some decedents have posthumous rights for a longer time than other decedents.
Case Study
This latter question can be tied back to the crisis in Mexico. Whether missing persons and those presumed dead inherit the rights of the dead and lose the rights of the living is, reasonably, a debatable question. There is no guarantee of them being deceased, but neither is there any evidence proving the opposite. They exist only in a grey area, an undetermined place. This paper argues that those presumed dead and missing persons, like those in the case of Mexico, should be granted the rights of decedents, based on the fact that even if they are alive, they have no way to express their wishes and preferences other than through the voice of others. Their disappearance has muted them.
Following the theories discussed previously, multiple points can be made concerning the crisis revolving around the enforced disappearances in the Mexican Republic. First, as this paper has shown, for a decedent to remain in their position as a rights holder, they must have someone voicing their preferences. Simply put, decedents must be remembered. The crisis in Mexico has revealed that these people who continue the voice of the dead are not merely family members, but also strangers. There are over 180 search groups spread all over Mexico that voluntarily look for missing persons, identify the human remains they find all over the country, and, most of all, shed light on the violence Mexicans suffer from and the ability authorities lack to combat it (Eschenbacher and Elipe 2022). One of these groups is Las Rasteadoras del Fuerte, a group of women who have managed to find 423 bodies of which 218 were identified and returned to their families (Eschenbacher and Elipe 2022). These women, who were strangers to over four hundred of the bodies that they found, ensured that these decedents remained their right to be identified and fulfilled the right to a respectful burial of 218 people. With no ties connecting them, these women and their families increased the factor of time that Smolensky describes in her theory.
However, this deed is not done without its dangers. Volunteers and family members who continue to actively search for missing persons, whether it is remains or a sign of life, not only face the same violence the person they are looking for suffered they also face systematic silencing from their government. Amnesty International reveals that relatives searching for disappeared persons face serious risks, including facing the same fate as their loved ones and going missing themselves (Amnesty International 2023). Enforced disappearances, especially of those looking for others, have become a synonym for death. As Amnesty International reports, these people include Teresa Magueyal, who was murdered while looking for her missing son Griselda Armas, and her husband who was also killed looking for their disappeared son, and many others whose names deserve to be known. This threat is not limited to volunteers and relatives it seems, as the Interdisciplinary Groups of Independent Experts who reported a case of 43 missing students all forcibly disappeared (Amnesty International 2023). The Mexican government continues its efforts to silence the cries of loved ones who stopped asking for help due to a lack of faith, and has worsened their heartbreak by claiming that the number of enforced disappearances published by the United Nations is exaggerated (Eschenbacher and Eschenbacher 2023). Families are denied access to forensic reports and are threatened and attacked by staff of Attorney Offices (Amnesty International 2023). Seemingly, the government and authorities put more effort into shoving this crisis under the rug than resolving the issue at hand.
All of this leads us to conclude that there are two things posing a threat to the rights of the presumed decedents who have suffered under the Mexican crisis. First, is the violence many (young) Mexicans experience and face in the drug industry and within the republic itself. Second, are the government and law enforcement’s incentives and efforts to conceal rather than resolve the problem of enforced disappearances, thereby refusing loved ones and volunteers the resources and actions needed to find the missing persons. Ultimately, the factor of time is systematically and rapidly decreased as a consequence of the government’s attitude.
When tying the notion of the rights of decedents to the forensic crisis currently haunting many Mexicans, we can conclude that despite the best efforts of families, friends, and even strangers, missing persons and those presumed dead are often deprived of their rights much sooner than is rightful. Due to the government’s passive attitude towards finding missing persons and the remains of those already believed to be dead, these people are ripped from the rights that, as proven by Smolensky, they had even in death. These people are stripped of their right to an identity and a burial, if not many more, by the same government that allowed this violence to come upon them in the first place.
Conclusion
To conclude, the forensic crisis in Mexico, exacerbated by the ongoing war against drug trafficking, has raised profound questions about the human rights of missing persons and unidentified decedents. This paper has explored the theoretical framework surrounding human rights and dignity, the legal implications of death, and the concept of posthumous rights to address whether human rights expire upon death.
Human rights, grounded in the concept of human dignity, are moral constraints on the actions of agents and are essential to the respect and protection of individual autonomy and worth. Even in death, individuals possess posthumous rights that stem from their inherent dignity. Kirsten Smolensky’s three-factor analysis – impossibility, value, and time – provides a comprehensive framework for understanding these rights. While the impossibility factor removes certain rights due to the decedent’s inability to exercise them, the value and time factors ensure that important rights, such as free speech and reproductive autonomy, may extend beyond death, though they diminish over time.
The crisis in Mexico starkly illustrates the practical challenges in upholding these posthumous rights. The rapid issuance of Presumption of Death declarations, coupled with systemic violence and government inaction, has led to a significant number of missing persons being prematurely stripped of their rights. Volunteers and families continue to voice the preferences and dignities of these decedents, often at great personal risk, highlighting the critical role of societal memory in sustaining posthumous rights.
The discussion of posthumous rights in this paper emphasises the need for a broader societal and legal discourse on the rights of decedents. It is essential to recognise that human rights do not expire at death but fade over time as ties to the living weaken. This understanding necessitates a reassessment of governmental and societal responsibilities in addressing the rights of missing persons and unidentified decedents.
To emphasise, the plight of Mexico’s missing persons underscores the urgent need for robust legal frameworks and active governmental efforts to uphold the rights of the dead. This paper advocates for a continued and expanded dialogue of the rights of decedents, recognising their inherent dignity and the importance of ensuring their rights are respected, even in death. Only through such discussions and action can we hope to address the limitations of current theories and practices, ensuring that human rights are preserved for all individuals, living or dead.
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