Posted by ccld201
29 October 2024On 1 October 2024, eighty-eight members of the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2569 based on a report on ‘Missing migrants, refugees and asylum seekers – A call to clarify their fate’ (Document 16037) prepared by Mr Julian Pahlke. Twenty-nine voted against and four abstained. In its plenary formation, PACE encompasses 306 members appointed by national parliaments from among their members across the 46 member states of the Council of Europe. Eighty-eight votes in favour of ‘consider[ing] that human dignity should be ensured to all persons in life and in death, and that the obligation in law to treat the deceased with dignity should extend to situations where international humanitarian law is not applicable’ (point 4) is a sobering figure.
Dignity, humanity, democracy
Yet, at the end of a summer marked by elections that saw the systematic rise of anti-immigration, racist and xenophobic agenda across Europe, including in the European Union (EU), France, Germany and recently Austria, this small figure encapsulates the hope that Europe’s democracy might not be reduced to its electoral dimension alone. Democracy is not just about free and fair elections. Human rights law developed by the EU, by the Council of Europe and by their common member states is very clear that in European democracy everyone matters, and that everyone matters equally. Some people living in a democracy have the right to vote and to stand in elections (mostly nationals of these states), and others do not. All people, however, enjoy the same civil and political rights under the European Convention on Human Rights (ECHR) that are so crucial for democracy, such as the right to freedom of expression (Article 10), freedom of assembly (Article 11) and fair trial (Article 6). Moreover, the rights that protect people against being dehumanised are absolute both under the ECHR and EU Charter of Fundamental Rights. In the Council of Europe, it is prohibited to subject people to inhuman and degrading treatment or punishment, to torture, to servitude, to slavery, and to human trafficking. In addition in the EU, the death penalty is abolished; eugenic practices and reproductive human cloning are also prohibited. Those eighty-eight votes reminding us that ‘human dignity should be ensured to all persons in life and in death’, also remind us that – regardless of the lawfulness of their status, entry or stay in the territories of the Council of Europe and of the EU – migrants, refugees, and asylum seekers share the same humanity as everyone else living in the Council of Europe.
Dead and missing migrants matter
Crucial in life, this shared humanity is perhaps even more important in death and when migrants go missing. In my contribution to the preparation of the report last spring, I elaborated on the significance of human dignity in the following terms: ‘The concept of human dignity primarily stems from Art.1 UDHR (1948), which states: ‘all human beings are born free and equal in dignity and in rights’. It is part of customary international law (ius cogens) as embedded in the prohibition of torture and of inhuman and degrading treatment[1]. In European law, human dignity has become the foundation of human rights and democracy[2]. It is the EU’s first foundational value (Article 2 TEU), and the core dignity rights are enshrined in the EU Charter (Art. 1-5). While the ECHR did not codify human dignity, the ECtHR has made explicit that its commitment to protecting ‘human dignity and human freedom’ is a question of ‘civilisation’ and ‘the very essence of the Convention’[3]. Human dignity is firmly embedded in its caselaw under Art.3 (prohibition of torture, inhuman and degrading treatment and punishment) and Art. 4 (prohibition of forced and compulsory labour and of servitude and slavery).
[115.] Human dignity has become law’s tool to capture and protect what it means to be a human being in a democracy. It has three important features: it is inherent (it is enough to be born); it is universal and equally shared by all human beings; and it enjoys the strongest protection (‘inviolable’ under Art.1 EU Charter, and absolute and non-derogable in ECHR caselaw). Consequently, human dignity arguments are especially effective for protecting people at the margins of society and law; people who are often not popular in the current political context and who tend to be invisible and voiceless[4]. It is particularly suited to promoting the rights of migrants, refugees and asylum seekers[5].
[116]. While human rights law has been developed for the living, treaty law does not restrict dignity to them[6]. How and why people die goes to the heart of humanity[7]. As a result of systemic failures in relation to, or breaches of, absolute prohibitions, (missing) migrants, refugees and asylum-seekers often die inhuman deaths. Human rights law cannot give them their lives back. It can however seek to give them their humanity back postmortem. For instance, and pending further elaboration, when anchored in human dignity the duty (e.g.) to locate their remains and identify them becomes universal in principle. Further, this duty might be formulated in strong terms reflecting human dignity’s outstanding status in human rights law. Finally, relying on human dignity means that actioning the rights of the dead might no longer be restricted to ‘their relatives’. This might become an objective right on the wider ground of humanity, as what is at stake is the right of all human beings to belong to the ‘human family’ (UDHR) and, when dead, to have their existence formally acknowledged and remembered.
[117]. Ultimately, the argument of human dignity is a powerful reminder that, regardless of borders, we all share the same humanity. Beyond promoting accountability, exploring the actual and potential routes offered by human dignity also encourages timely reflection on the quality of the ‘human family’, ‘civilisation’ and democracy[8] that we live in.’
On the basis of the above Resolution 2569, the Parliamentary Assembly adopted Recommendation 2284 (2024). It is addressed it to the Committee of Ministers, which is expected to respond to the Parliamentary Assembly within a year. In the meantime in the EU, following the electoral success of far-right parties over the summer, creating offshore detention centres for migrants and ‘outsourcing’ checks is rapidly gaining traction amongst Member States. Italy’s recent decision to ignore both the 18th October 2024 decree of the Tribunale Ordinario in Rome and the recent Court of Justice Preliminary Ruling (case C-406/22 of 4th October 2024 only available in Czech and French) seems to confirm increasing contempt for the rule of law in general, and for the rights of migrants in particular. It is important to bear in mind that human dignity does not depend on where people die, it comes with simply being born, no matter where in the world.
Catherine Dupre is a professor of comparative constitutional law and the founding editor of the Dignity&democracy Blog.
[1] M Nowak (2021) ‘Torture, prohibition of’ in Edward Elgar Encyclopedia of Human Rights, Edward Elgar, 388.
[2] C Dupré (2016) The Age of Dignity: Human Rights and Constitutionalism in Europe, Bloomsbury
[3] SW v UK, ECtHR, no20166/92, 22 November 1995, para 44.
[4] C Dupré (2016) The Age of Dignity: Human Rights and Constitutionalism in Europe, Bloomsbury
[5] C Dupré (2021) ‘Article 1’ in S Peers et al eds., The EU Charter of Fundamental Rights: A Commentary. Beck-Hart- Nomos, 3-23
[6] Akpinar and Altun v Turkey, ECtHR, no 56760/00, 27 May 2007: partly dissenting opinion of judge Fura-Sandström, para 2-5.
[7] G Agamben (1998) Homo Sacer, Sovereign Power and Bare Life, Stanford U P
[8] C Dupré Dignity, Democracy, Civilisation. Liverpool Law Review 33, 263–280 (2012).