Posted by ccld201
29 October 2024
________________________________
On 1 October 2024, eighty-eight membershttps://pace.coe.int/en/votes/39966
of the Parliamentary Assembly of the Council of Europe (PACE) adopted
Resolution 2569https://pace.coe.int/en/files/33815/html based on a report
on ?Missing migrants, refugees and asylum seekers ? A call to clarify their
fate?https://pace.coe.int/en/files/33711/html (Document 16037) prepared
by Mr Julian Pahlkehttps://julianpahlke.de/. Twenty-nine voted against
and four abstainedhttps://pace.coe.int/en/votes/39966. In its plenary
formation, PACEhttps://pace.coe.int/en/ 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),<
https://results.elections.europa.eu/en/> 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<
https://www.echr.coe.int/documents/d/echr/convention_eng> (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<
https://www.europarl.europa.eu/charter/pdf/text_en.pdf>. 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<
https://dtm.iom.int/europe/dead-and-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)https://pace.coe.int/en/files/33816/html.
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<
https://effimera.org/wp-content/uploads/2024/10/DECRETO-Tribunale-di-Roma_18-ottobre-2024.pdf>
and the recent Court of Justice Preliminary Ruling (case C-406⁄22 of 4th
October 2024 only available in Czech and French<
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62022CN0406>)
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.
Migrants? death, dignity and European democracy, by Catherine Dupré >
Dignity & Democracy<
Marie Martin [she/elle]
Committee on Migration, Refugees and Displaced Persons
Commission des migrations, des réfugiés & des personnes déplacées
Office : +33 3 90 21 59 66 | Mobile: +33 749 794 763 (Signal/WhatsApp)
Council of Europe / Conseil de l’Europe
https://www.coe.inthttps://www.coe.int/
https://twitter.com/PACE_Migrationhttps://twitter.com/PACE_Migration/
email : marie.martin@coe.intmarie.martin@coe.int
[cid:image001.png@01DB29FF.2994AB90]
[75th anniversary website]https://www.coe.int/