22
that Article points out that the respect due to the remains of the deceased "implies that they
are disposed of as far as possible in accordance with the wishes of the religious beliefs of the
deceased, insofar as these are known", and warns that
"even reasons of overriding public necessity cannot in any case justify a
lack of respect for the remains of the deceased"85.
2. Domestic Law.
64.
The duties of the living towards the dead found expression not only in international law
but also in domestic law. However insufficient the treatment of the matter might appear to be,
already the ancient Roman law, e.g., safeguarded penally the respect due to the dead. In the
comparative law of our days, it can be found that the penal codes of numerous countries tipify
and sanction the crimes against the respect for the dead (such as, e.g., the subtraction and
the hiding of the mortal remains of a human being). And at least one trend of the legal
doctrine on the matter visualizes as passive subject of the right to respect for the dead the
community itself (starting with the relatives) which the dead belonged to. As I allowed myself
to indicate in my Separate Opinion in the Bámaca Velásquez versus Guatemala case (Merits,
2000),
"Even though the juridical subjectivity of an individual ceases with his
death (thus no longer being, when having died, a subject of Law or titulaire of
rights and duties), his mortal remains - containing a corporeal parcel of
humanity, - continue to be juridically protected. The respect to the mortal
remains preserves the memory of the dead as well as the sentiments of the
living (in particular his relatives or persons close to him) tied to him by links of
of affection, - this being the value juridically protected86. In safeguarding the
respect for the dead, also penal law gives concrete expression to a universal
feeling of the human conscience. The respect for the dead is thus due - at the
levels of both internal and international legal orders, in the persons of the
living" (par. 12).
65.
The end of legal subjectivity with one's death does not mean that law is indifferent to
the relationships between the living and their dead. Beyond existence one no longer needs
rights, but duties nevertheless persist towards the deceased. Niceto Alcalá-Zamora, - to whom
the "moral patrimony" of a people was formed by its accumulation of traditions, ideals, beliefs
and culture, - once remarked, in an inspiring monograph, that
"la conciencia justa (...) irá comprendiendo y realizando una relación de
derecho a través del tiempo, entre los
que se suceden sin convivir; que
. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional
Protocols of 08 June 1977 to the Geneva Conventions of 12 August 1949, Geneva,
ICRC/Nijhoff, 1987, pp. 369 and 379.
85
. Bruno Py, La mort et le droit, Paris, PUF, 1997, pp. 31, 70-71, 79-80 and 123.
86
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