21
VIII.
The Duties towards
Development of Law.
the
Dead
in
the
Origins
and
1. International Law.
60.
It cannot pass unnoticed that an acknowledgement of the duties of the living towards
their dead was, in fact, present in the very origins, and along the development, of the law of
nations. Thus, to refer but to an example, in his treatise De Jure Belli ac Pacis (of 1625), H.
Grotius dedicated chapter XIX of book II to the right of burial ("derecho de sepultura"). Therein
H. Grotius sustained that the right of burying the dead has its origin in the voluntary law of
nations, and all human beings are reduced to an equality by precisely returning to the common
dust of the earth80.
61.
H. Grotius further recalled that there was no uniformity in the original funeral rites (for
example, the ancient Egyptians embalmed, while most of the Greeks burned, the bodies of the
dead before committing them to the grave; irrespective of the types of funeral rites, however,
the right of burial was ultimately explained by the dignity of the human person81. H. Grotius
further sustained that all human beings, including "public enemies" ("enemigos públicos") were
entitled to burial, this being a precept of "virtue and humanity"82.
62.
In historical perspective, the influence of religion on the development of international
law should not pass unnoticed. The contribution of the Spanish theologians Francisco de Vitoria
(Relecciones Teológicas (1538-1539) and Francisco Suárez (De Legibus ac Deo Legislatore,
1612)83, and their influence on the work of H. Grotius himself84, soon became widely
acknowledged. And the work of these founding fathers of the discipline propounded an
essentially universalist outlook, as I had occasion to stress in my Concurring Opinion in the
Inter-American Court's Advisory Opinion n. 18 on the Juridical Condition and Rights of
Undocumented Migrants (2003, pars. 4-12).
63.
Nowadays, International Humanitarian Law provides for respect for the remains of the
deceased, whether they are buried or burned. Article 130 of the 1949 IV Geneva Convention
(on the Protection of Civilian Population) requires all due care and respect with mortal remains.
Article 34 of Protocol I of 1977 to the four Geneva Conventions of 1949 elaborates on the
matter in greater detail; the commentary of the International Committee of the Red Cross on
. H. Grocio, Del Derecho de la Guerra y de la Paz [1625], tomo III (libros II y III), Madrid,
Edit. Reus, 1925, p. 39, and cf. p. 55.
80
. Ibid., pp. 43 and 45.
81
. Ibid., pp. 47 and 49; and cf. Hugonis Grotii, De Jure Belli ac Pacis [1625] (ed. B.M.
Telders), The Hague, Nijhoff, 1948, p. 88 (abridged version).
82
. Association Internationale Vitoria-Suarez, Vitoria et Suarez - Contribution des Théologiens
au Droit International Moderne, Paris, Pédone, 1939, pp. 169-170.
83
. M.W. Janis (ed.), The Influence of Religion on the Development of International Law,
Dordrecht, Nijhoff, 1991, p. 61, and cf. pp. 62-81.
84
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