Do the Dead Have Rights?

It is generally uncontroversial to say that the dead and the places they are laid to rest — cemeteries, tombs, mausolea, etc — are deserving of our respect, even when those dead are separated from us by thousands of years of history. This is almost universally recognised across cultures, even in our secular age; the idea of paving over a churchyard would make even the most stonehearted materialist wince. As European museums reckon with the repatriations of foreign bones, and AI insensitively resurrects celebrities like Tupac, might we say that the dead have rights?

Certainly, International Humanitarian Law recognises some obligations governments owe to deceased persons. According to Article 17 of the Geneva Convention, the dead should be “honourably interred, if possible according to the rites of the religion to which they belonged.” Their peace is to be disturbed only for reasons of medical investigation or to establish identity. Furthermore, gravesites must be marked and listed on a government database in order to avoid accidental exhumation in the future. 

International law makes these provisions largely for war dead, however, and for gravesites of which we already have a written record. What about archaeological remains? Paradoxically, the only way of finding the religious beliefs of ancient people is often through opening tombs and disturbing the peace of mummies and skeletons. Upon exhumation, simply replacing remains is impossible in most cases, for reasons of research or grave robbery. 

One way we might respect the archaeological dead is by returning them to their places of origin, provided there are museums able to hold them. There are perhaps diplomatic roadblocks with the repatriation of ancient human remains: see for example, the passport issued by the Egyptian government to the pharaoh Ramses II, almost 3,000 years after his death, in order to go on exhibit in France. Ancient human remains, however, might have a stronger claim to be returned to their native countries than other museum pieces. People, after all, have stronger feelings about where they are buried than inanimate artefacts. I have no doubt old Ramses would prefer the Nile to the Seine.

We might reasonably agree with humanitarian law that the dead have some right to an undisturbed afterlife, in the general location of their burial, and according to their wishes (as far as we understand them). 

More recent cases demonstrate the need to accord the dead some right to their image as well. The use of holograms and AI voice models to ‘resurrect’ deceased musicians like Elvis and Tupac, even when sanctioned by their descendants, has brought condemnation by ethicists and even lawsuits in the United States. Unlike their art, which can be bought and sold separately to their person, an artist’s image is unalienable, central to their person in life and their memory in death. Some commentators have referred to this AI resurrection as a kind of slavery: a third party profiting from the person themselves (or some fundamental part of them, their image) without their consent. With the possible exception of Jeremy Bentham, who wanted his taxidermied body to be permanently displayed at UCL, one’s posthumous image is not something to be used for entertainment. 

Another moral philosopher, Immanuel Kant (who is safely buried in Königsberg) claimed that the use of persons as means to an end, rather than ends themselves, was always wrong. In cases like these, the person in question is deceased, yet something so fundamental to their life is used as a means to make money. The use of persons as means, in violation of Kant’s law, may continue even when a person has died.

As rising sea levels encroach on coastal cemeteries, and AI brainrot threatens damnatio memoriae, let’s look an eye toward how our ancestors are faring. After all, we’ll join them at some point.

Illustration by Holly Ward