Human Rights Law and Personal Identity

Electronic copy available at: http://ssrn.com/abstract=2521117

University of Leicester School of Law Research Paper No. 14-30

Human Rights Law and Personal Identity: An Introduction Jill Marshall Professor, University of Leicester Abstract: Jill Marshalls Human Rights Law and Personal Identity, published by Routledge in June 2014, explores the role human rights law plays in the formation, and protection, of our personal identities. Drawing from a range of disciplines, Marshall critically examines how, in a so called age of liberation and individuality, human rights law includes and excludes specific types of identity in ways that can potentially restrict our freedom rather than empower it. This piece is a version of the Introduction to that book adapted by Jill Marshall for this publication. Keywords: human rights, personal identity, liberation, individuality, empowerment This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s). If cited or quoted, reference should be made to the following: J. Marshall, Human Rights Law and Personal Identity: An Introduction, University of Leicester School of Law Research Paper No. 14-30. 2014 Jill Marshall University of Leicester School of Law Legal Studies Research Paper Series


Copyright Jill Marshall 2014 see J Marshall Human Rights Law and Personal Identity (Routledge 2014) Introduction

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Human Rights Law and Personal Identity: An Introduction A Certain Type of Person in the Twentieth and Twenty First Century Personal identity has become the subject of human rights discourse in the 20th and 21st century. But what is this personal identity supposed to mean? In 2009, The Wellcome Trust launched a nine month project called The Identity Project. This prestigious organisations website explained the projects purpose:

In June 2000, the first draft of the Human Genome Project was published: the 'book of life', it promised greater scientific insight into our identity than ever before. The next month, riding a wave of TV programmes proclaiming to show us our real selves and a rising trend for people to make their private identities public through the media or the internet, the first UK series of Big Brother aired - attracting millions of viewers.

As we approach the tenth anniversaries of these two very different symbols of the past decade of grappling with questions about our identity, which has taught us more about who we are?1

Most of the contestants and millions of viewers seem to love the TV show Big Brother. Yet George Orwells original depicts a dystopian possible future version of our identities, the danger of taking away something that is human within us is captured.2 This element of our humanity is taken away through attempted exposure, aiming for eradication, of our private, inner self, our thoughts, our consciousness, our first person experience. Messing with the minds of the citizens of Oceania, the slogans on Orwells fictional Ministry of Truth proclaim:

WAR IS PEACE FREEDOM IS SLAVERY IGNORANCE IS STRENGTH .

Most of us like to think that the crippling oppression of this totalitarian vision has been avoided in democratic states today. The existence of human rights law is one reason why. Yet some say we live in an age that has produced a particular kind of self. Adopting Michel Foucault,3 Nikolas Rose observes that the self is increasingly becoming a project to be worked on in the search for the real self.4 This self is normally presented as the truth about human nature. This self should, ideally, be autonomous, self-actualising, exercising choice. 5 Rose explains that, from the mid-nineteenth century, what he calls psy expertise developed and acquired a particular significance within contemporary western forms of life. 6 But, instead of freeing us, these notions of autonomy and self realisation establish and delimit our sense of what it is to be a human being, and what it is to live a life of liberty7 Freedom may, on this depiction, be slavery. This leads to the consequence that: 1 http://www.wellcome.ac.uk/News/Media-office/Press-releases/2009/WTX057617.htm 2 G Orwell 1984 (London Penguin 2003, 1949) 3 M Foucault, The History of Sexuality Vol. 1: The Will to Knowledge, trans R Hurley (London: Penguin 1998) and Technologies of the Self in L Martin et al (eds) Technologies of the Self (London: Tavistock 1988). 4 See analysis by S Lawler, Identity: Sociological Perspectives (Cambridge: Polity 2008) at p 69-70 and N Rose Governing the Soul: Shaping of the Private Self, 2nd edition, (London: Free Association Books: 1999) 5 See analysis by S Lawler, Identity: Sociological Perspectives (Cambridge: Polity 2008) at p 69-70. 6 In producing positive knowledges, plausible truth claims and apparently dispassionate expertise, psy makes it possible to govern individual subjects within practices like court rooms, the family, prisons and schools etc, in ways that appear to be based, not upon arbitrary authority, but on the real nature of humans as psychological subjects. N Rose, Governing the Soul: Shaping of the Private Self, 2nd edition, (London: Free Association Books: 1999) at viii. 7 N Rose, Governing the Soul: Shaping of the Private Self, 2nd edition, (London: Free Association Books: 1999) at viii.



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whatever the constraints, obstacles and limitations that are encountered, each individual must render his or her life meaningful as if it were the outcome of individual choices made in furtherance of a biographical project of self-realization.8

As Steph Lawler notes, Rose alerts us to the irony that we are now obliged to live in a project of our own identity. At the same time, we believe by making our subjectivity the guiding principle of our ethical systems and personal lives, we are free or freely choosing our freedom. All the while we are deepening our embeddedness in power.9 Roses criticisms alert us to an important feature of our age concerning the functioning of power and our need for self-awareness. Yet, as Lois McNay argues, criticism of the present should always be intertwined with a notion of what ought to be. We can try to be non-prescriptive but this ought rests on some kind of normative assumptions: for example, what constitutes the legitimate and illegitimate uses of power.10 When it comes to issues of personal identity, it is important for those of us interested in social transformation and justice to retain the theoretical tools to enable us to analyse the structural tendencies. This should help us to understand how difference becomes inequality.11 Jennifer Rosner states that:

there is nothing simple about being a self [o]ur feelings clash, our wills waver, our desires are incompatibleWe are only partly rational. Our growth is rarely linear. Even as we doubt and deceive ourselves, we are creative, evaluative, and self-interpreting. And, always, we live with the possibility of falling apart.12

The ancients recognised interior conflict, but it was the moderns who squarely acknowledged the disorder, the irrationality, and the disharmony at humanitys heart.13

In certain aspects of interpretations of what it means to have a human right to personal identity, this messiness is too rarely captured. In law, including in human rights law, we need some sort of unity of the self or a tidy self. However, we may have to acknowledge that, although this may be reassuring, it may also be false and encourage reductionism. This leads to an impoverished life of narrowing aspirations, stunting creativity.14 Looking to the human genome and genetics version of identity, mentioned in the Wellcome Trusts project, may lead us down this path. The tensions in formulating some idea of personal identity for legal purposes can also be seen in the way Identity Politics has developed. There are claims for equality, but these are then made on the basis of differences among groups of people with defining characteristics. Those people are grouped together for the purposes of political action yet fractures soon become visible. This double bind can re-enforce stereotypes and encourage essentialism. We can seek new ideals and conceptions of the self that can accommodate the ambivalence, incoherence, and irrationality that mark our human experience in our messy lives. In our complex technological and global world, the twenty first century person is said to: 8 N Rose, Governing the Soul: the shaping of the Private Self, 2nd edition, (London: Free Association Books: 1999) at ix. 9 S Lawler Identity at p 70 10 L McNay Feminism and Foucault (Oxford: Polity Press 1992) at p 141 11 L McNay Feminism and Foucault 1992 at p 154-5 12 J Rosner (ed) The Messy Self (Boulder: Paradigm 2006) at p xv. 13 J Rosner (ed) The Messy Self (Boulder: Paradigm 2006) at p xv. 14 J Rosner (ed) The Messy Self (Boulder: Paradigm 2006) at xv.


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draw upon psychic frames of memory and desire, as well as wider cultural and social resources, in fashioning the self. Such self-constitution is not only something that happens through our own actions. It is also something that happens to us, through the design of other people16

We do not live alone. Who and what we are involves identification with, in the sense of finding something in common with, or being similar to, other human beings. It also almost invariably entails un-identification from others, in the sense of being different and distinct from, those others. This universal belonging, yet difference from, forms a crucial tension in our consideration of who we are: of our personal identity. The juxtaposition of belonging through similarity and difference is evident in human rights law seeking to enshrine ideas of the human being both as an individual, including as a member of certain groups or cultures, and as a member of the human species to be accorded dignity, freedom and equality.17 As Amartya Sen observes identity can be a complicated matterWhen we shift our attention from the notion of being identical to oneself to that of sharing an identity with others of a particular group the complexity increases further. 18 Life and Death In 2005 the United Nations reported that, at a conservative estimate, the worlds 500 richest people earn more than the poorest 416 million.19 In 2010, it reported that a person born in Niger can expect to live 26 fewer years, to have 9 fewer years of education and to consume 53 times fewer goods than a person born in Denmark.20 In one of the richest cities in the world, London, there is a gap of 15 years in healthy life expectancy between women who live in Richmond Upon Thames, compared to women who live in Tower Hamlets.21 The gap between the richest and poorest countries in the world has widened over the last 20 years.22 We are born into this world. We have no control over whether it will be in Niger, Denmark, Richmond or Tower Hamlets or anywhere else. We have no control over where in any of those societies we find ourselves being born. We have no control over whether we will be born with any disabilities, of which sex, of which race, and sometimes religion. We are perceived by others as having identifying features according to the cultural understandings of our societies, whether we like it or not. What identities we have are indelibly marked by these facts. As an individual tiny human being drawing our first breath, we need the help and support of other human beings to bring us into this world, to sustain our existence until we, as human animals, are even capable of fending for ourselves. Despite most of us being able to become independent in the sense of capable of looking after ourselves, we remain continually interdependent on each other throughout each of our lives. Who we are and who we become is created in this specific environment. Our identities are created by a rich variety of sources, including genes; our bodies and how they are configured by society; by our families and caring, loving, indifferent or abusive, relationships. Each of us is born and grows up within a particular racial, national, ethnic, religious and/or other belief system, with or without opportunities, education and other life chances. We, as persons, interpret and perceive these factors from the inside. And many of us want to display or reflect our identities in clothing, symbols or general appearance. As Stanley Benn observes about identity: 16 A Elliot 2001 at p 5 17 See, for example, the preamble to the Convention on Human Rights and Biomedicine, opened for signature on 4 April 1997 in Oviedo 4.IV.1997. 18 A Sen, Identity and Violence: The Illusion of Identity (London: Penguin 2006) at xi-xii.. 19 UN Development Programme Human Development Report 2005 International co-operation at a crossroads: aid, trade and security in an unequal world. At p 37 20 UN Development Programme Human Development Report 2010 at p 43 21 Office of National Statistics figures 2013, reported in The Guardian 18 September 2013. Average of 72.1 years healthy life expectancy for women in Richmond Upon Thames, and 54.1 years in Tower Hamlets. 22 UN Development Programme Human Development Report 2010 at p 42


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Surely everyone is governed by the basic presuppositions of the culture which has furnished the very conceptual structure of his world, the traditions into which he has been inducted, the demands of roles he has internalised? The very canons of rationality that he employs when he thinks of himself most independent in his judgment have been learned as part of his cultural heritage. Ones range of options, both in belief and action, is as much circumscribed by such mental furniture as the highest speed at which one can travel is governed by the prevailing technology. 23 Within this conception of a socialized individual, however, there is still room to distinguish as autonomous a person who is committed to a critical, creative, and conscious search for coherence within his system of beliefs. The resources on which he will rely for this critical exploration must lie, necessarily, within the culture itself, supplemented, perhaps, by those elements of alien cultures with which he has become acquainted. But such elements, too, have to be assimilated into the network of his own cultural beliefs.24

Only you can live and experience your life and your death. The UK Department of Health Code of Practice defines death as:

the irreversible loss of those essential characteristics which are necessary to the existence of a living human person. Thus, it is recommended that the definition of death should be regarded as irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. The irreversible cessation of brain stem function (brain stem death) will produce this clinical state and therefore brain stem death equates with the death of the individual.25

As Heidegger reminds us, the most important fact about death is that, for each of us, it is my own death. 26 Yet it is an inevitable fact of life for all of us. The fact of death bestows meaning on life because it offers it the possibility of having a shape that immortality would deny [and]gives lifes moments a preciousness and urgency that would go lacking if living went on without end. 27 Knowing of our mortality, we sort out the significant issues from those that do not matter to us.28 To find meaning in life, built into our sense of who we are, it has been suggested that we consider the sorts of questions people ask about their lives on contemplation of death,29 as often happens when people find out they have a terminal illness, even though we are all going to, and are aware that we will, die. Such a perspective changes priorities, often away from money and consumerism to truth, love, belonging: matters that we should concern ourselves with.30 This meaning of life is found in living in the world, which necessarily involves being born into a world that is already in existence, at this period in history; into relationships family, community, and nations over which we have no say on our arrival. Our identities are created, developed and exist in this world.

23 S Benn A Theory of Freedom 1986 at 179 24 Benn 1986 at 179 25 Department of Health Code of Practice for the diagnosis of brain stem death 27 March 1998 26T May, Death (Art of Living) (Durham: Acumen 2009) at p 9, emphasis in original. See M Heidegger Being and Time, trans J Macquarrie and E Robinson (Bloomington, Ind: Wiley-Blackwell 1978). 27T May, Death (Art of Living) (Durham: Acumen 2009) at p 95. 28 T May, Death (Art of Living) (Durham: Acumen 2009) at p 112. 29 S Wolf, Happiness and Meaning: Two Aspects of the Good Life (1997) 14 Social Philosophy and Policy 207-225 at p 209; see also J Herring Caring and The Law (Oxford: Hart Publishing 2013) at p 165. 30 See Alain de Botton Status Anxiety (London: Penguin 2004) on The Death of Ivan Ilyich by Leo Tolstoy at 227ff.


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Faced with his own death in the film portrayal of Aron Ralstons real life experience of being trapped in a cave, 127 Hours,31 Ralston realises he has only five days the 127 hours of the film title - before he will die as he is trapped during a hiking expedition with his arm wedged between two sides of a canyon. Seeing no chance of rescue, his only option to stay alive is to cut off his own arm. Ralston does this and survives. He is reported to have said to reporters later:

We have these very fundamental desires for freedom, for love and for connection. And thats what got me out.32

Scenes of Ralston in the cave in the film are interspersed with flashbacks from the immediate past back into his childhood. We are shown how he became the person he is that makes him capable of such endurance in the face of what seemed like an inevitable death. We have a finite amount of time in which to live our own life, at least on this earth in the material form we now experience and are conscious of. In living this life, we seek to live in ways that make sense to us, that give our lives value and meaning, and a sense of our own personal identity. Legal Personal Identity Who or what a person is has legal implications.33 Most think that what makes persons who they are involves a mixture of elements they have in common with all persons, with certain others, and those unique to that person. Firstly, elements that are in common with all humans, are often described as in some sense pre-social or forming the essence of all persons. These include being a member of the human species, having the potential for rational thought, having a soul or spirit. Yet such views have been criticised for causing problems if a person does not seem to fit into these categories easily. These have historically been used to exclude certain members of the human species from acquiring full legal rights: for example, black people and women. Secondly, certain characteristics, such as sex, race, nationality or religion, are shared in common with others often grouped together socially or politically. Thirdly, what makes a particular person unique includes ideas of continuity in his or her life, projects and choices, knowledge and understanding of their parentage, origins and past experiences, commitments to their family, intellectual capacity and talents. This description illustrates a network of values and convictions that structure and give meaning to a persons life, making them who they are. In most countries around the world, a persons identity is recorded on birth. The fact of personal existence has to be legally registered and some form of birth record produced. This consists of certain components of that persons identity, often including their place of birth, sex,34 names and certain details of parentage.35 Many think that such a record is needed to comply with a persons human rights to know who they are. This implies that who they are exists at birth. Certain aspects of this fixing of identity can be changed in some 31 127 Hours (Danny Boyle, 2010). 32 As reported by Alex Hannaford, 127 Hours: Aron Ralstons story of survival in The Telegraph online 6 January 2011. http://www.telegraph.co.uk/culture/film/8223925/127-Hours-Aron-Ralstons-story-of-survival.html (last accessed 15.10.2013). 33 Certain parts of this section paraphrase my entry in D Greenberg (ed) Jowitts Dictionary of English Law (London: Sweet and Maxwell 2010). 34 In some countries it is now possible to register not only male and female: there is a third option. On 1 November 2013, Germany became the first country in Europe and one of the first countries in the world to allow the parents of babies without clear gender-determining physical characteristics to register them not as male or female, but to choose a third blank box instead and mark an X. Other countries with similar legislation include Nepal, Australia and New Zealand. 35 On 22 March 2012, the United Nations Human Rights Councils 19th session adopted a resolution dedicated to birth registration and the right of everyone to recognition everywhere as a person before the law. The resolution was adopted unanimously without requiring a vote indicating a wider acceptance of the need for birth registration among member States. Non-governmental Organisation Plan International reports that each year about 51 million children go unregistered, mostly in developing countries. See www.plan-international.org


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circumstances. For example, a transsexual person who has been granted a full gender recognition certificate in the United Kingdom, and similar legal provisions in many other countries, can obtain a new birth certificate detailing their new name and gender, Although the original birth certificate remains in existence, it is not available to the public. Children who are adopted will have an adoption certificate and can apply for a copy of their original birth certificate when they are 18 years old or over.36 Elements of a persons identity must also be recorded on marriage and death, and in a passport or identity document, depending on the legal arrangements in the national state in question. Increasing reproductive technological advances impact on personal identity issues: for example, there are legal consequences if a person is born of a surrogate or through gamete donation. In terms of the human right to personal identity, it is argued that it is not at all clear what this right actually means. In recent years, such a right has been interpreted from the short but explicit provision of a right to respect for ones private life set out in the text of Article 8 of the ECHR.37 Certain European national laws, most clearly in the German laws provisions on a right to personality also present a right to human personhood, personal identity and personality. Beyond Europe, the Universal Declaration of Human Rights (UDHR) provision for the right to personality development, the African Charters provisions, the Childrens Rights Convention, and a variety of international documents pertaining to ethnic minorities, issues of race, religion, disabilities and womens rights, all contain provisions relating to identity and its formation and protection. I argue that a more sophisticated version of this right is found in an interpretation of identity as self-determining in the sense of our making of ourselves who we want to be. This, it will be explained, does not need to entail a solipsistic, individualistic, atomistic view of the person. As presented here, it is one that is intersubjectively created in a world in which we live with others in relationships, and, through our nurture and care by and for others on a reciprocal basis. Yet, it is us, from the inside, who can interpret what happens in and through us in the world with self-responsibility, and understanding and awareness. The version of seeking the authentic, self-discovered - because always there - identity that some court cases seem to imply, is less appealing because it can be used to constrain our freedom. Human rights to a personal identity begin with the right to life. It is often said that without this, no other rights can or will exist. Most human rights law can be related to personal identity, concerned, as all such rights purportedly aim to be, with the protection of humans. Indeed, one could argue that all ultimately derive from the importance of a persons identity in some sense. Personal identity relates to existence, to living a life, to living a life of dignity and worth, to living without fear, with shelter, in a safe and healthy environment. When born, you and I have no control over such things. We, you and I, and him and her, are dependent on others to enable all of our each individual personalities, which only each of us can have, to flourish. When dying, we normally have little or no control over how our own life will end. Indeed, you may have more legal control over what happens to your body and possessions after your death than in the process of death itself. The UDHR states that we are all born free and equal by virtue of being human.39 This freedom and equality of the individual human being is the foundation of modernity and its social contract theories from Hobbes to Locke to Rousseau and beyond.40 The objective of international human rights law is set out in many international and regional treaties, signed by 36 Legal provisions vary in different countries. 37 See J Marshall, Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff 2009) and J Marshall, A Right to Personal Autonomy at the European Court of Human Rights, 3 EHRLR 2008, 336-355. 39 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). Article 1. 40 T Hobbes, Leviathan (Oxford: Oxford Paperbacks 2008), J Locke, Two Treatises on Government (Cambridge: Cambridge University Press 1988), JJ Rousseau, The Social Contract (M Cranston trans., Harmondsworth Penguin 1968), J Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press 1971).


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states on behalf of the citizens they are supposed to represent. This objective is respect for the human dignity and human freedom of everyone indicating that such legal rights rest on the moral, normative project of individual human beings living a good life. Human rights are described by the UN Human Development Report of 2000 as:

the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behavior of individuals and on the design of social arrangements and are universal, inalienable and indivisible.41

Costas Douzinas observes that contemporary human rights law can be seen as the ongoing and always failing struggle to close the gap between the abstract man and the concrete citizen. Closing this gap involves adding flesh, blood and sex to the pale outline of the human and extend the dignities and privileges of the powerful (the characteristics of normative humanity) to empirical humanity.42 As he accurately notes, this has not happened. He adds this is unlikely to happen through rights. The ideal highlighted by Nikolas Rose of seeking our life projects through authentically actualizing our autonomy can lead to state coercion. It can also cause disappointment from within ourselves at our constant failure to live up to such ideals, and lead to disdain, pity, or disrespect from others because of such failure. Yet there is more to the ideals of human freedom and of human rights law. This yearning for more means that, despite the danger of the psychotherapeutic society, these ideals can play positive roles in the creation and sustenance of our identities if interpreted in particular ways. The empowering function of rights discourse provides a focus that translates into action. Those who are powerless, or have less power, can be encouraged to make rights talk their own because rights are defined by who talks about them and the language that is used. Particularly when people are socially powerless, their freedom, starting with the imagination in their own heads, can lead to empowerment. However, human rights law can play a role in how those heads develop and become our own, through human rights to education, the regulation of home life and to the care we need when growing up. Being and Belonging There are different theoretical interpretations as to what personal identity means. In previous publications, I analyse how courts have interpreted a right to personal identity as including a version that constrains human dignity and freedom.43 This interpretation sees the core of who we are and our dignity as a process of self-discovery and fitting with a version of personal freedom that encourages us to find out who we already are: what is our essence; authentically uncovering it to be truly free and to uncover our real identity, by recovering this essence.44 This could be seen as the real core of our identity.45 This type of essentialism has a long history from Aristotle through to Marx, and to modern communitarianism, some versions of 41 UNDP Human Development Report 2000 at p 16 42 C Douzinas Seven Theses on Human Rights: (2) Power, Morality and Structural Exclusion available at www.criticalthinking.com ; see also Costas Douzinas, Critique and Comment: The End(s) Of Human Rights (2002) 26 Melbourne University Law Review 445 and C Douzinas The End of Human Rights (Oxford: Hart 2000) 43 See in particular J Marshall, Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Leiden: Brill 2009). 44 See Charles Taylors analysis of the development as modern freedom being won by people breaking loose from older moral horizons such as seeing ourselves as part of a larger cosmic order, a great chain of Being, in which humans figured in their proper place along with the angels, heavenly bodies, and our fellow earthly creatures. This hierarchical order in the universe was reflected in the hierarchies of human society. People were often locked into a given place, a role and station that was properly theirs and from which it was almost unthinkable to deviate. Modern freedom came about through the discrediting of such orders: C Taylor Sources of the Self: The Making of Modern Identity (Cambridge: Cambridge University Press1989); The Ethics of Authenticity (London: Harvard University Press 1991) and see also C Guignon On Being Authentic (London: Routledge 2004) at 3. 45 See analysis by C Guignon, On Being Authentic (London: Routledge 2004) at p 3.


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radical and cultural feminism, the post-liberal self. It can also be evidenced in much of the popular personal development industry and the therapeutic state highlighted in diverse works.46 This categorisation is contrasted with an empowering view of identity, human dignity and freedom.47 This version is evidenced in interpretations by a long tradition of scholars of human freedom as self-created or self-determined, what one of the judges of the European Court of Human Rights described as the ability of a man (sic) to be free to shape himself and his fate in the way that he deems best fits his personality.48 In my analysis, these different versions point to varying explanations as to what personal identity means; in its formation, continuation, and end. Further, it concerns how personal identity is perceived by the individual person whose identity is the subject of discussion, and in the way it is perceived by others, including personally known others in their relationships, by society, and by the legal system. It can be frustrating and produce a sense of failure or non-achievement if it is only by expressing your true self that you can achieve self-realisation, self-fulfilment and authenticity as a human being. Or if it is only what is seen to be the core of who we are that is to be accommodated or protected by human rights law. If this is an account of movement towards always making the right decision, this may mask coercion, including by the state, and cause injustices. In this book, my arguments concerning self-realising and self-determining personal freedom are developed with the aim of showing the interconnection between human rights law and personal identity. Both are often accused of being based on an individualistic, atomistic and self-possessed version of the human being.49 Many such critiques have much validity. However, it is argued that human rights laws purpose - respecting human freedom and human dignity - entails more than the protection of somehow already pre-existent self-sufficient, fully grown, rational, fully able-bodied and mentally competent, adults. For human rights law to fulfill its purpose, there is the need for an environment to exist and to be sustained where personal identity is created, developed, and nurtured. This needs us to acknowledge the inter-subjective quality of all of our personalities. This is not a book describing what human rights laws say. It is about love, care, connection, dependence and independence, belonging, existing in the world and becoming who we want to be, and how human rights law relates to these. The book is written from a theoretical stance based on a variety of sources, but with particular use of certain feminist insights50 and 46 Aristotle The Nichomachean Ethics (Oxford: Oxford University Press 1986); for modern communitarians see M Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press 1982, 2nd Ed 1998), S Avineri and A De-Shalit (eds), Communitarianism and Individualism (Oxford: Oxford University Press 1992). Some elements of this are in evidence in radical feminism, see CA MacKinnon, Toward a Feminist Theory of the State (Cambridge, Massachusetts: Harvard University Press 1991). For the post-liberal self see, for example, M Griffiths, Feminisms and the Self: the Web of Identity (London: Routledge 1995) and analysis by H Reece in the context of divorce in H Reece, Divorcing Responsibly (Oxford: Hart 2003). For an example of the personal development industry on this see P McGraw, Self Matters (London: Simon and Schuster UK Ltd 2001). 47 See D Beyleveld and R Brownsword, Human Dignity in Bioethics who use these expressions in the context of bioethics. 48Cossey v the UK (Application no. 10843/84) Judgment 27 September 1990 Series A No. 184, 24-25 per Judge Martens. 49 See analysis by, for example, Charles Taylor Atomism in de-Shalit and Avineri Communitarianism and Individualism 1992; C Taylor, Sources of the Self: The Making of Modern Identity (Cambridge: Cambridge University Press 1989); The Ethics of Authenticity (London: Harvard University Press 1991); C Macpherson Democratic essays in retrieval; M Sandel Liberalism and the Limits of Justice (Cambridge: Cambridge University Press 1982, 2nd Ed 1998); MA Glendon Rights Talk, R West, Caring for Justice (New York: NYU Press 1999). 50 R West Caring For Justice (New York: NYU Press 1999); S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (New York: Routledge 1992), MC Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999); D Cornell, At the Heart of Freedom: Feminism, Sex and Equality. (Princeton, New Jersey: Princeton University Press 1998); K Knop, Gender and Human Rights (Oxford: Oxford University Press 2004); S Mullally, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford: Hart 2006); L McNay Foucault and Feminism and J Sawicki Disciplining Foucault.


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recognition theorists.51 In using the framework of recognition, the inter-personal aspect of personal identity is acknowledged: who a person is, is created and developed in a social context of overlapping communities. How one is perceived by others, including the legal system: for example, in the form of lack of recognition of that persons rights, can unfavourably impact on a persons psychology and sense of his or her own identity. This can result in a vulnerability and incapacity, and shows how examining human rights law and personal identity involves ideas of justice, equality, dignity, and respect. These theoretical works are combined with particular provisions of international human rights law to show the role that human rights law plays in the creation and protection of our identities. The Development and Purpose of Human Rights Law Article 22 of the UDHR states that everyone is entitled to the realisation of the rights needed for ones dignity and the free development of their personality. 52 At Article 29, the Declaration states that everyone has duties to the community in which alone the free and full development of his personality is possible. It is therefore clear that the existence of a personality does not just happen or take place in a vacuum, without assistance, or support from, or interconnection with, other people. The realisation of ones dignity and freedom of personality formation takes place in a social setting. Although the position is taken in this book that personality, or personal identity, is created inter-subjectively, it is argued that it is still your life and no one elses. This is meant in the sense that no one else can live it, from the inside, for you: it is possible for you to interpret what happens to you and make decisions and take responsibility for them. We have plural identities but our ability to discern this and to choose what to make of the identities needs to be fostered. The social context of the capacity to choose is reflected by, and to a certain extent, can be determined by, politics, law and legal regulation. Depending on age, health, power structures, people can contribute to varying degrees to create and to change such conditions. These social conditions include legally formed policies that grant recognition through rights entitlements to human beings to develop self-confidence, self-respect and self-esteem. In taking this theoretical stance, this book examines how human rights law can assist in creating a safe and secure existence for our identities to be created, in families and in communities. Certain human rights provisions have been judicially interpreted to provide for some type of right to personal identity. Others relate to a variety of aspects of our personal identities. International and regional human rights documents continually state that the purpose of this area of law is respect for human freedom and human dignity. International and regional human rights have varying degrees of monitoring and committees to resolve disputes, including often the ability to hear individual complaints once domestic laws have been exhausted. At regional level, in Africa, in the Americas, in Europe and Asia, treaties have been signed to help people live lives of safety and meaning. These variously set out provisions pertaining to personal identity. The European Court of Human Rights makes clear that the right to respect for ones private life, which is expressly set out in the text of Article 8 (1), is a broad term and non exhaustive in its definition. It includes rights protecting the integrity, identity and autonomy of the person:

the concept of private life .. can sometimes embrace aspects of an individuals physical and social identity. Elements such as, for example, gender identification,

51 A Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge: Polity Press 1992); C Taylor, The Ethics of Authenticity (London: Harvard University Press 1991); N Fraser Redistribution or Recognition? New Left Review. 52 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).


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name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.53

In later judgments, the ECtHR continues to develop this interpretation broadly - as is more fully explored in chapter one.54 A Sign for the Gift of Selfhood55 Human rights instruments are said to establish some common idea of global standards for just and decent conduct; for moral standards by which to assess the policies of nation states. 56 While traditionally international law is concerned with states and their relationship with other states, international human rights laws special character 57 is concerned with states relationships with all people who are within the territory of a relevant state. 58 The objective of International human rights law is explicitly stated to be respect for the human dignity and human freedom of everyone. 59 This is clearly stated in the Preambles to many, if not all, human rights treaties, declarations, reports and recommendations.60 The UDHR is widely accepted as a consensus of global opinion on international human rights law.61 It was the first international document to set out rights of all people based on some idea of common humanity. As already mentioned, Article 1 states that we are all born free and equal in dignity and rights, endowed with reason and conscience and should act towards one another in a spirit of brotherhood. In spite of the exclusionary, sexist language, these are entitlements everyone is said to have, without distinction.62 This freedom and equality in dignity and rights accorded to all because of our endowment of reason and conscience as individuals, yet also as members of the human family, lies at the crux of the international human rights regime. This has led to the idea that human rights claims are invariably about what one is due as a human being. 63 This means that the human being is entitled to such human rights regardless of what a relevant states national positive law may say on the subject. In this sense, the human being is a biological entity and also a philosophically existent entity born free and equal, because of the capacity for reason and conscience. As such, this means he or she is entitled to human rights. The Oviedo Convention on Bioethics does not define everyone and human being. However, it affirms their primacy in Article 2: The interests and welfare of the human being shall prevail over the sole interests of society or science. As to the problem of defining the term everyone, the explanatory report produced by the Directorate General of Legal Affairs at the Council of Europe states, in paragraph 18:

In the absence of a unanimous agreement on the definition of these terms among

53Pretty v the UK (2002) 35 EHRR 1 at paragraph 61. 54 See also J Marshall Personal Freedom Through Human Rights Law? 2009. 55 A paraphrase of Patricia Williams, Alchemical Notes: Restructuring Ideals from the Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 431 (1987). 56 See L W Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press 1987). 57 See F Megret, Nature of Obligations in D Moeckli, S Shah and S Sivakumaran (eds) International Human Rights Law (OUP 2010) at p 127. 58 P Alston and R Goodman, International Human Rights (Oxford: Oxford University Press 2012). 59Pretty v the UK (2002) 35 EHRR 1 at paragraph 65: The very essence of the Convention is respect for human dignity and human freedom. 60 See further chapter one. 61 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). 62 Article 2 UDHR, Article 3 ICCPR and ICESCR 1966 63M Perry, The Idea of Human Rights: Four Enquiries (Oxford: Oxford University Press 1998) at p 47.


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member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention.

While who or what is a person is fundamentally a legal question,64 it is not solely legal: the complicated embeddedness of [the] issues [involved] prevents any single knowledge system from determining their resolution. 65 Roger Cotterrell describes a concept of law as being best judged by its fitness for the specific purpose for which it has been created. As such, it should be seen as organising efforts towards solving specific problems.66 For human rights law, this is developing our freedom and respecting our dignity as humans. The moral and the legal are intermingled because often the way human rights law works is by setting boundaries on how state governments can treat individuals within their territory. Robin West observes that rights bridge the moral and the legal.67 By a combination of peremptory norms of customary international law, jus cogens, and international treaties signed by governments of sovereign states, seemingly on behalf of their citizens, this Charter Order as Antonio Cassese has termed it,68 aims at focusing on individual and group rights, sustaining certain fundamental values while curtailing state power. Individual people have entitlements to rights pursuant to pronouncements, declarations, treaties, recommendations and their interpretations by judicial or quasi-judicial human rights bodies. In many instances, individuals are legally permitted under international human rights law to bring claims through many of the treaties provisions, apparently regardless, or indeed because, of the persons opposition to their own states positive laws. What is often the starting point in disputes involving international human rights law is the state interfering in someones life in an unwanted way. This has an underlying philosophical notion of a person being free, and a persons rights being preserved if left alone, not interfered with, usually by the state. It implies that human rights laws are needed to stop state action from abusing individual rights. On this view, personal identity will develop absent from state interference; this largely corresponds to an idea of negative freedom. Yet when probed, we see that human rights law goes much further than this. With the growth of positive obligations, there is an understanding that individuals rights are not protected when left alone. If this happened from birth, we would not live very long. Care and nurturance by others is necessary for human survival and flourishing, at least while one is a newborn and infant, but often throughout life depending on ones ability to look after oneself, and sometimes towards the end of life. So states are increasingly responsible for human rights violations in failing to ensure that people have the enabling conditions to live their lives in peace, in safety, with clean water, with a roof of some type over their heads. Children have rights to, among other things, welfare, to be cared for and to have an education.69 The state is increasingly responsible for failing to ensure non-state actors do not breach other peoples human rights. These rights entail a notion of positive freedom.70 This 64 S Hamilton, Impersonations: Troubling the Person in Law and Culture (Toronto: University of Toronto 2008) at p 9. 65 S Hamilton, Impersonations: Troubling the Person in Law and Culture (Toronto: University of Toronto 2008) at p 9. 66 R Cotterrell A Concept of Law for Global Legal Pluralism? in S Donlan and L Heckendorn (eds) Concepts of Law: Comparative, Jurisprudential and Social Science Perspectives (Farnham: Ashgate 2013). 67 R West Desperately Seeking a Moralist (2006) 29 Harv. J.L. & Gender 1-50; R West Re-Imagining Justice (Ashgate) 68 A Cassese, International Law (Oxford: Oxford University Press 2004). 69 See further, chapter three and four. 70 Some examples of the vast literature on different conceptions of freedom include JJ Rousseau The Social Contract (M Cranston trans., Harmondsworth Penguin 1968) 1762; I Kant Fundamental Principles of the Metaphysic of Morals (trans. 1988); G W Hegel Phenomenology of Spirit (AV Miller trans. 1977); LT Hobhouse Liberalism (Henry Holt and Co. 1964); TH Green Lectures on the Principles of Political Obligation (Longmans 1941); I Berlin Four Essays on Liberty (1969).


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means that we need enabling conditions so that we are free to do certain things. Biological beings who are members of the human species exist before the definition of personal identity exists but how we see, and who counts as, a human being is defined by law and society. Narrower than the philosophical or colloquial understandings of what it is to be a person, the bearer of legal rights and responsibilities is one who can be sued or sue. This has been described as how the law understands its subject and object.71 Legal personality is acquired at birth.72 Yet personhood in law has been explained as a normative statement about social status, one that determines access to a range of resources used in the constitution and maintenance of self and personhood. 73 In this sense, as is noted by authors from the Harvard Law Review Association 2001 law does more than regulate behavior, it embodies and signals social values and aspirations. 74 It sends out or signifies messages and these can deeply impact on a persons sense of who they are. As Ngaire Naffine observes, there is an important moral reason for preserving a connection between the legal person and human being. We need to prevent the treatment of people as things, as, clearly seen, for example, in Nazi Germany.75 The book is socio-legal in the sense that it draws on a range of disciplinary backgrounds and material, both empirical and normative to investigate how human rights law impacts on the building of self-confidence, self-esteem and self-respect in this formation of our identities76 during childhood and youth, in our families and communities and through education. It analyses how this area of law recognises or misrecognizes our identities when we are who we say we are, and when we want to sustain or change our identity. The recognition, or not, of certain ways of living by political and legal systems forms part of who we are and can empower or constrain us. Law defines; it both includes and excludes entities as human beings to be protected by human rights law. It allows, permits, protects and provides; it also recognises, misrecognizes and ignores identities. In doing so, it conditions the formation of certain types of identity. Human rights law does this particularly by purporting to translate moral norms of human freedom and human dignity into legal rights given to human beings by virtue of their species. This book does not aim to cover and list every such human right and its legal protection. Instead, particular rights and examples from political and legal systems, and court decisions are used to illustrate understandings of what it means to be human, to create and sustain the person we are and become - in and through other people. While I draw on international human rights legal sources and a collection of philosophical and ethical works. However, there is greater emphasis in terms of regional human rights protections on the European human rights system, with insights into German and English national laws on identity issues. 71 R Tur, 1987, The Person in Law in Persons and Personality: A Contemporary Inquiry (Arthur Peacocke and Grant Gillet, eds), 116-29 (Oxford Basil Blackwell) cited in S Hamilton, Impersonations: Troubling the Person in Law and Culture (Toronto: University of Toronto 2008) at p 17. 72 Vo v France [2004] (Application no. 53924/00). The dissenting judgment makes this clear too. Those judges state that despite this, there is recognition and protection of everyones right to life before birth. They considered this to be a principle shared by all the member States of the Council of Europe. As they express it, domestic legislation permitting the voluntary termination of pregnancy would not have been necessary if the foetus was not regarded as having a life that should be protected: abortion therefore constitutes an exception to the rule that the right to life should be protected, even before birth. In the Abortion I case in Germany, the right to human dignity under Article 2 of the German Basic law on right to personality is said to pertain to the developing life in the mothers womb 72 Some further aspects of German personality law are analysed in different sections of the book. Further than this, matters concerning abortion are generally beyond the scope of this book. 73 S Hamilton, Impersonations: Troubling the Person in Law and Culture (Toronto: University of Toronto 2008) at p 18. See also C DOuzinas 2000. 74 Harvard Law Review Association (2001): Note: What we talk about when we talk about persons: The Language of a Legal Fiction Harvard Law Review 2001 114 1745-68. At p 1760 cited in S Hamilton, Impersonations: Troubling the Person in Law and Culture (Toronto: University of Toronto 2008) at p 1968. 75 N Naffine Laws Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Oxford: Hart 2009) at p 180 76 A Honneth The Struggle for Recognition.


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In asking where we get human rights from, Jack Donnelly has replied that they appear to have humanity or human nature as their source. 77 With our human nature, human rights are a prescriptive moral account of human possibilities. So, in saying there is a human right to x, there is an implication that people who enjoy a right to x will live richer and more fully human lives. 78 Like Donnelly, the account set out in this book sees human nature as a social project more than a pre-social given. 79The position is taken that a persons nature or character or personality consists of a combination of genetic and biological components, social, cultural, religious and environmental influences, together with individual action - and the interpretation by the particular person him or herself of these factors on their effects on him or herself. What human nature means is contentious and forms an important backbone to this book with sometimes interchanging terminology of human nature, character, personality and identity and how these link with human rights law. If human nature is a fixed essence of some sort, political, legal and social arrangements may have to be arranged in ways to fit with this core characteristic. If human nature is malleable and changing, it can lead to different possibilities and social arrangements being permitted by law, and other disciplines. Building Us This book takes a three part structure. In Part I, Whose Identity and What Rights?, I set out these themes in the first two chapters. In Chapter one, The Identity of the Person in Human Rights Law, certain aspects of what identity is - sought to be captured through its representation in human rights law - are investigated. It analyses the evolution of a right to personal identity and to personality as property or publicity rights. In doing so, it reflects on the injustices of who has been called a person in the past and our starting point in talking about identity rights from a position of inequality of power. There are constrained notions of what identity means and who has rights to their own person, as property or as a commodity, or as their own intrinsic person. In seeking to legitimise or justify the legal regulation of human lives, an account of human nature has been sought. The purpose of having law is then to ensure that such quality or qualities of our identity the age old80 question of what it is that makes you who and what you are - are protected or enshrined, controlled or brought to fruition through the legal and political system. In this connection, law can be seen as a force for the good of the people taken as a collective entity or as separate individuals - or as a force for the oppression of many for the good of some who are, or who become, the powerful. In any account, this can entail an idea of the essence of what it is that makes you really or truly most at the core who you are. This involves consideration of what makes us who we are and like or unlike others, introducing ideas of human dignity which are investigated. In Chapter Two The Universal and Equal Quality of Our Individual Identities? I analyse the norms of equality and non-discrimination that are said to exist in international human rights law. The potential for a one size fits all approach can be attractive and unattractive. Criticisms of rights tendency to see us as self-possessed, neurotic individuals are analysed. However, it is then explained how rights can be reconstructed to take into account the social formation of our preferences and the intersubjective nature of our identities, using some feminist theories and Honneths framework which is then developed throughout later parts of the book.

77J Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University 2003) at p 13. 78J Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University 2003) at p 14. 79J Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University 2003) at p 15. 80 K A Appiah, The Ethics of Identity (Princeton: Princeton University Press 2007) at p xiv.


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In Part II of the book, Protecting Our Fixed Core Identity? I examine Souls, Sex and Brains Biology and Blood and Culture Ethnicity and Religion: Permitted Expressions of Identity? in chapters three, four and five respectively. In Souls, Sex and Brains I analyse how our understandings of the core of who we are, our core human nature, connect to the soul. The analysis involves intertwined theory concerning our core soul with case law on sexual intercourse, sexual identity and sexual orientation which for many, including in legal case law, equates to the core of our intimate inner self. Many of the debates concerning the soul tie it to the rational mind. In an age of neuroscience and genetics, focus seems to be shifting to the brain and our DNA to tell us who we are. Certain aspects of these notions are analysed in this chapter and then continued in chapter four Biology and Blood. I question whether there is a shift to thinking about the core of our identity as equating to genes or biology in a reductionist way. This seems to be evident in some interpretations of human rights laws. Ancestral blood lineage history seems to be important to many, perhaps increasingly so. A critical perspective is adopted on needing to know everything about ones parents, and ancestors, for people to think they have a complete sense of personal identity. Chapter five focuses on culture, ethnicity and religion. It investigates whether these expressions of identity are permitted because they are seen to be in some sense immutable and unchosen. The chapter explores analysis of the particular nature of our own identities formed in societies and in cultural practices. Notions of universal rights are often presented in opposition to our cultural specificities. Yet there are particular rights accorded to persons who are grouped together by identity categories. Conflicts can arise in certain instances between universal principles and culturally specific rights. In this regard, some aspects of womens and childrens rights and education are investigated. We all have different identities to each other. We each have, at least to a certain extent, different identities at different times of our lives, in different places in the world. You might constitute a minority in one country but not in another. These issues relate to power. It may be the case that powerful minorities may not be discriminated against. However, when expressions of cultural, ethnic or religious identities are seen to be ostentatious or unreasonable they are prohibited. Part III, Empowering and Enabling Our Identities to Exist focuses on issues and case law that can be interpreted as allowing us to be and to become who we want in a self-creating, self-determining manner. It seems these occasions may, in an age of individual identity, ironically, be decreasing in the way mentioned by Nikolas Rose. While somehow believing we are making our own subjectivity and freely choosing our identities, we are increasingly being obliged to live in certain conformed ways, pushing out identities that do not fit with what is acceptable. The unreasonable and ostentatious nature of some expressions of identity mentioned in chapter five are taken up in chapter six. These are aspects of identity that the person concerned may consider to be fundamental to who they are. However, these are not given the protection accorded to so-called unchosen characteristics. Rights to religious and other expression allow certain elements of our identities to be shown to others in public but this is restricted and qualified by, among other things, the rights and freedoms of others. How this is interpreted is problematic for many alternative identities, as well as some religious people who wish to wear clothing that is obvious to others. Perhaps the most prominent example in Western Europe is the full face veil. In chapter seven, I argue in favour of the importance of love and care in building our identities. This links to chapter fours analysis of blood and biology, particularly in our formative years as children. In my Concluding Chapter, I summarise these issues, by reference to certain care, recognition and feminist theorists. It is argued how human rights law would be better interpreted to enable social conditions to be changed and then sustained so


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that we can think about who we are in relation to others ethically with an awareness of power and freedom. We will all be listened to and taken seriously as persons in human rights law in our own right. We will all be provided with the conditions to have self-confidence, self-esteem and self-respect in the building of their identities. This interpretation is in keeping with the overall purpose of human rights law: to respect our human freedom and human dignity as empowering, enabling us to become who we want to be and allowing us to live our lives. There are many ways in which personal identity can be analysed in the context of human rights law. It is hoped that this book will provoke thought and action in many areas, including those where it was not possible in a monograph of this style and volume to examine every issue in great detail. Personal identity is supposed to be protected through human rights law from disintegration, damage and destruction. Torture, inhuman and degrading treatment affect a persons sense of their own identity. The destruction of the whole identity of a group through genocide, and related crimes of war and against humanity can obliterate lives, which necessarily means our individual identities. On a large scale, it can lead to the massacre of the group collective so that their identity no longer exists. While some aspects of belonging, inclusion and exclusion that relate to these issues are analysed in the book, it has not been possible to cover these elements of the destruction of personal identity in depth. But we should always be wary that, as Amartya Sen warns, identity can brutalise others, and can kill.81

81 A Sen, Identity and Violence: The Illusion of Identity (London: Penguin 2006) at p 1-2. This is something that I am all too aware of, having been born, grown up and lived as a girl and young person, in Northern Ireland during the Troubles.

Documents

Human Rights Law and Personal Identity