Right to personal identity

Last updated

The right to personal identity is recognised in international law through a range of declarations and conventions. From as early as birth, an individual's identity is formed and preserved by registration or being bestowed with a name. However, personal identity becomes more complex as an individual develops a conscience. But human rights exist to defend and protect individuality, as quoted by Law Professor Jill Marshall "Human rights law exist to ensure that individual lifestyle choices are protected from majoritarian or populist infringement." [1] Despite the complexity of personal identity, it is preserved and encouraged through privacy, personality rights and the right to self-expression.

Contents

Concept and history

The right to personal identity begins with the right to life. It is only through existing that individuals can cultivate their identity. Nevertheless, since ancient Greek philosophy, humans have been recognised with a "soul", making them more than physical bone and flesh. The Universal Declaration of Human Rights was created to preserve the biological and philosophical elements of human beings since its establishment in 1948. Therefore, the notion of individual identity and personality has been encouraged and preserved from the birth of human rights. However, throughout the years there have been developments towards the protection of personal identity through avenues that manifest identity such as private life, expression rights, personality rights and the right to know your biological origin.

Private life

Article 8 of the European Court of Human Rights has been interpreted to include "personal identity" within the meaning of "private life." [2] Article 8 protects against unwanted intrusion and provides for the respect of an individual's private space. Professor Marshall explains that this space is necessary for individuals to "think reflectively without interference" and "to be in control of one's own faculties." [3] as Macklem puts it: "independence of mind." [4] This protection of inner privacy allows individuals to develop and cultivate their personal identity. "Private life" has been interpreted to protect the development of relationships. The ECHR highlighted in the case of Bruggemann and Scheuten v Germany Yearbook the significance of relationships concerning the "emotional field" and "the development of one's own personality." [5]

With respect of privacy comes respect for personal autonomy, which Article 8 has also been interpreted to protect. [6] The ECHR Online states that the scope of Article 8 is to "embrace personal autonomy" and the freedom to make choices without the interference of the state to develop one's own personal life. As illustrated by the Stanford Encyclopaedia of Philosophy, through protecting a person's autonomy, a person's identity is also protected, as both are integral to each other.

Expression rights

The Declaration of Human Rights Article 19 and Article 10 of the ECHR give everyone the right to freedom of opinion and expression. Macklem explains that "freedom of expression is not merely the freedom to communicate one's voice to others. It is more importantly the freedom to develop a distinctive voice of one's own." [7] Therefore, Articles 19 and 10 encourage the manifestation of personal identity. In the case of Handyside v UK the court stated "Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man." [8] Freedom of expression not only endorses individuals to participate and contribute to public life but it also gives them the opportunity to discover who they personally are.

Article 9 of the ECHR also provides the right to freedom (and the manifestation) of thought, conscience and religion. According to Locke, thought and consciousness establish personal identity, for these are the foundations of who a person is. In addition, a person's beliefs also contribute to internal and external identity. [9] For example, some believe women who have freely chosen to wear the Islamic headscarf or full-face veil are expressing their religious beliefs and personal identity. This has led to much debate and controversy within states which have banned the wearing of full-face veils in public.

Full-face veils

As of 2011, both Belgium and France have banned the full-face Islamic veil in public places. The ban occurred under the administration of President Sarkozy, who stated that veils oppressed women and were "not welcome" in France. But Marshall highlights that the ban is disproportionate and it is not government's place to determine what women should wear especially when it misrecognises her and disrespects her identity and personality. [10] While France explains that the intentions of the ban were to promote public order and secularism, Arslan v Turkey held that Article 9 had been violated [11] and that France has failed to recognise the intrinsic worth of women who freely choose to wear such veils. [12] As illustrated under Article 1 of the Declaration of Human Rights, all beings are born equal and therefore have equal worth. Finally, Amnesty International has repeatedly urged France not to impose the ban, saying it violates European human rights law.[ citation needed ]

The issue of the full-face veil ban in France and Belgium illustrates the extent of legal protection an individual has on their personal identity. Being empowered to make self-determined choices, such as freely choosing to wear a full-face veil to illustrate beliefs, Marshall believes, is an interpreted concept of human dignity and human freedom, allowing each woman's identity to be legally recognised. [13] The enjoyment of these rights and freedoms in the ECHR are protected under Article 14, and "shall be secured without discrimination regardless of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

However, these are the opinions of only some scholars. This is a contested issue and others believe that the banning of full-face veils is about liberating females to express their sexuality and providing them the opportunity to show the world who they truly are. [14] These aspects also promote and encourage personal identity.[ citation needed ]

Personality rights

The right to have and develop a personality is addressed in Article 22 of the UDHR: "Everyone is entitled to the realisation of the rights needed for one's dignity and the free development of their personality." Article 29 also protects the right to develop one's personality: "[e]veryone has duties to the community in which alone the free and full development of his personality is possible." Manuc explains that personality rights can be defined as those expressing the quintessence of the human person, and are intrinsic to being human. [15] These rights recognise the "spirit" within an individual and have developed from the issues of privacy. Personality rights emerged from the German legal system in the late twentieth century to seek distance from the horrors of Nazism. [16] It was also a mechanism to improve tort law surrounding privacy, as illustrated in the Criminal Diary [17] case.

The case concerned the issue of personality structure and having the right to determine oneself. Ederle explained this as a right individuals have to choose how to be related in the world. Through the help of the German Constitutional Court, an individual can actively seek and create an intimate sphere so his personality can develop and be protected. Some states see no need for a specific law to personality, as their system of law possesses a different foundation for personality protection. [18] For example, France, South Africa and England have an all-embracing law that protects an individual's interest concerning physical integrity, feelings, dignity and privacy and identity. [19] However, in addition to substantial protection to personality through privacy, the Netherlands and Austria also recognise a general right to personality. [20]

Blood and biological right

The UN Convention on the Rights of the Child [21] stresses the value and importance of a child's identity. Giroux and De Lorenzi separate the understanding of identity into two parts: static and dynamic. The static aspects of identity concern attributes that make one visible to the outside world, for example, physical features, sex, name, genetics, and nationality. [22] Dynamic aspects include morals and religious and cultural characteristics. [23] Under Article 7, a child has a right to have a "legal" identity by being registered, and has a right to a name and a nationality. These protect mainly the static aspects of identity. However, Article 8 protects and encourages the child's dynamic aspects of identity through preserving his or her identity in relation to nationality, name and family relations. Article 8 illustrates the state's duty to protect this right, both passively and actively. [24]

Articles 7 and 8 developed to confront the issues of children in political struggles and disappearances. [25] For example, Gelman v Uruguay [26] concerned the kidnapping of Maria Gelman which prevented her from developing relationships with her parents and concealing her true identity from her. 193 states have ratified the convention, making it the most-ratified convention in history, including all United Nation members except the United States, Somalia and South Sudan. [27]

Identity is also within people's genes as evidenced by debates concerning anonymity for gamete donation. [28] Since 2005, in the UK, donor-received people can contact their donor once over 18 to find out where they have come from and prevent genealogical bewilderment. [29] However, there are global differences towards the debate; for example, in Canada and the United States there are no regulations, whereas in Switzerland the donor must be willing to be identified, and in France, anonymity is forced. [30]

Criticisms

There are some scholars who believe the right to identity must be treated with caution. [31] Rosemary J. Coombe expressed her concerns of personal identity becoming property as there is the belief that through marginalising identity, it could be accepted as private and exclusive property. [32] Lionel Bently is also concerned with this idea and highlights his worry through a quote from the Du Boulay case: "Property rights in 'identity'… have the potential to curtail the liberties of those who wish to build their own identities, in whatever way, and for whatever reason." [33] Other scholars believe that enshrining personal identity into the law is restricting people's choices and flexibility to transform and change who they are. [34] However, human rights can also perform the contrary and protect individuals' choices on personal identity. While developing personal identity comes down to the individual to manifest character and work out 'who they are,' Marshall highlights that jurisprudence has evolved to create a positive obligation on states to provide social conditions such as private and personality rights to be respected, demonstrating that the international audience acknowledges that legal recognition is necessary to allow individuals to choose how they want to live and who they are. [35]

See also

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">Privacy</span> Seclusion from unwanted attention

Privacy is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.

In law, a legal person is any person or legal entity that can do the things a human person is usually able to do in law – such as enter into contracts, sue and be sued, own property, and so on. The reason for the term "legal person" is that some legal persons are not people: companies and corporations are persons legally speaking, but they are not people in a literal sense.

Personality rights, sometimes referred to as the right of publicity, are rights for an individual to control the commercial use of their identity, such as name, image, likeness, or other unequivocal identifiers. They are generally considered as property rights, rather than personal rights, and so the validity of personality rights of publicity may survive the death of the individual to varying degrees, depending on the jurisdiction.

The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR); while the right to privacy does not appear in the document, many interpret this through Article 12, which states: "No one shall be subjected to arbitrary interference with their privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Privacy law is a set of regulations that govern the collection, storage, and utilization of personal information from healthcare, governments, companies, public or private entities, or individuals.

Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists.

Title 2 of the Swiss Federal Constitution of 18 April 1999, entitled "Fundamental Rights, Civil Rights and Social Goals", contains a comprehensive and directly enforceable bill of rights, as well as a set of social goals which the state authorities are to pay heed to. A few rights, notably political ones, are explicitly reserved to Swiss citizens, while all others apply to all persons in Switzerland, including legal entities such as corporations.

The margin of appreciation is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.

Article 10 of the European Convention on Human Rights provides the right to freedom of expression and information. A fundamental aspect of this right is the freedom to hold opinions and receive and impart information and ideas, even if the receiver of such information does not share the same opinions or views as the provider.

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.

<span class="mw-page-title-main">Canadian privacy law</span> Privacy law in Canada

Canadian privacy law is derived from the common law, statutes of the Parliament of Canada and the various provincial legislatures, and the Canadian Charter of Rights and Freedoms. Perhaps ironically, Canada's legal conceptualization of privacy, along with most modern legal Western conceptions of privacy, can be traced back to Warren and Brandeis’s "The Right to Privacy" published in the Harvard Law Review in 1890, Holvast states "Almost all authors on privacy start the discussion with the famous article 'The Right to Privacy' of Samuel Warren and Louis Brandeis".

Privacy in English law is a rapidly developing area of English law that considers situations where individuals have a legal right to informational privacy - the protection of personal or private information from misuse or unauthorized disclosure. Privacy law is distinct from those laws such as trespass or assault that are designed to protect physical privacy. Such laws are generally considered as part of criminal law or the law of tort. Historically, English common law has recognized no general right or tort of privacy, and offered only limited protection through the doctrine of breach of confidence and a "piecemeal" collection of related legislation on topics like harassment and data protection. The introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law.

Bodily integrity is the inviolability of the physical body and emphasizes the importance of personal autonomy, self-ownership, and self-determination of human beings over their own bodies. In the field of human rights, violation of the bodily integrity of another is regarded as an unethical infringement, intrusive, and possibly criminal.

<span class="mw-page-title-main">Right to sexuality</span> Right to enjoy ones sexuality without discrimination

The right to sexuality incorporates the right to express one's sexuality and to be free from discrimination on the grounds of sexual orientation. Although it is equally applicable to heterosexuality, it also encompasses human rights of people of diverse sexual orientations, including lesbian, gay, asexual and bisexual people, and the protection of those rights. The inalienable nature of rights belonging to every person by virtue of being human.

S.A.S. v. France was a case brought before the European Court of Human Rights which ruled by a vote of fifteen to two that the French ban on face covering did not violate European Convention on Human Rights's (ECHR) provisions on right to privacy or freedom of religion. The two judges in the minority expressed their partly dissenting opinion. The Court was unanimous in dismissing other related claims of the plaintiff, S.A.S.

Christine Goodwin v. United Kingdom is a case decided by the European Court of Human Rights on 11 July 2002. The applicant, Christine Goodwin, a United Kingdom national born in 1937, was a transgender woman. She claimed that she had problems and faced sexual harassment at work during and following her gender-affirming surgery. She also alleged that the fact that she kept the same National Insurance number meant that her employer had been able to discover that she previously worked for them under another name and sex, with resulting in embarrassment and humiliation.

<i>Puttaswamy v. Union of India</i> Indian Fundamental Rights Case Law

Justice K.S. Puttaswamy (Retd.) &Anr. vs. Union of India &Ors. (2017), commonly known as the Right to Privacy verdict, was a landmark decision of the Supreme Court of India, which held that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. The original petitioner Justice K.S. Puttaswamy was former judge of the Karnataka High Court

Human rightsandencryption are often viewed as interlinked. Encryption can be a technology that helps implement basic human rights. In the digital age, the freedom of speech has become more controversial; however, from a human rights perspective, there is a growing awareness that encryption is essential for a free, open, and trustworthy Internet.

References

  1. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 72.
  2. ↑ Goodwin v the UK (2002) 35 EHRR 18 at 90.
  3. ↑ J Marshall, "Human Rights Law and Personal Identity", Taylor and Francis, 2014 at 36.
  4. ↑ T Macklem,"Independence of Mind", Oxford: OUP, 2006 at 6.
  5. ↑ Bruggemann and Scheuten v Germany Yearbook XIX [1976] at 382.
  6. ↑ Goodwin v the UK (2002) 35 EHRR 18 at 90.
  7. ↑ T Macklem, "Independence of Mind", Oxford: OUP, 2006 at 11.
  8. ↑ Handyside v United Kingdom (App 5493/72) ECHR 7 December 1976 at 49.
  9. ↑ S Weinberg, "Locke on Personal Identity", Philosophy Compass University of Illinois at Urbana-Champaign at 399.
  10. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 72.
  11. ↑ Arslan and Others v Turkey Application. 41135/98 Judgement 23 February 2010.
  12. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 69.
  13. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 72.
  14. ↑ J Selby, "Un/veiling Women's Bodies: Secularism and Sexuality in Full-face Veil Prohibitions in France and Quebec" SAGE Journals Vol. 43(3) 2014 at 441.
  15. ↑ L Manuc "Features and Evolution References to Personality Rights" Contemporary Readings in Law and Social Justice Vol 4(1) 2012 at 362.
  16. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 42.
  17. ↑ Criminal Diary Case 80 B VerfGE 367 (1989)
  18. ↑ Criminal Diary Case 80 B VerfGE 367 (1989) at 381.
  19. ↑ J Neethling, "Personality Rights: a comparative overview", The Comparative and International Law Journal of Southern Africa Institute of Foreign and Comparative Law Vol. 38, No. 2 at 213.
  20. ↑ J Neethling, "Personality Rights: a comparative overview", The Comparative and International Law Journal of Southern Africa Institute of Foreign and Comparative Law Vol. 38, No. 2 at 214.
  21. ↑ Convention on the Rights of the Child
  22. ↑ M Giroux and M De Lorenzi, ""Putting the Child First": A Necessary Step in the Recognition of the Right to Identity", Canadian Journal of Family Law Vol. 27, 2011 at 60.
  23. ↑ M Giroux and M De Lorenzi, ""Putting the Child First": A Necessary Step in the Recognition of the Right to Identity", Canadian Journal of Family Law Vol. 27, 2011 at 60.
  24. ↑ J Doek, "Article 8: The Right to Preservation of Identity" A Commentary of the United Nations Convention on the Rights of the Child (Leiden: Martinus Nijhoof Publishers, 2006) at 8.
  25. ↑ K O'Donovan, "Real" Mothers for Abandoned Children" Law Society Review 2002 at 36.
  26. ↑ Gelman v Uruguay, Series C No. 221 (IACrtHR), 24 February 2011.
  27. ↑ TEACHUnicef, "The Convention on the Rights of a Child" TeachUNICEF Debate Source Book at 10.
  28. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 125.
  29. ↑ Human Fertilisation and Embryology Authority Act 2008.
  30. ↑ T Hampton, "Anonymity of Gamete Donations Debated" JAMA Vol. 294, No. 21 2005 at 2681.
  31. ↑ L Bently, "Identity and the Law" in G Walker and E Leedham-Green (eds) Identity: The Darwin College Lecture Series (Cambridge: Cambridge University Press) at 26.
  32. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 242.
  33. ↑ Belisle Du Boulay v Jules Rene Hermenegilde Du Boulay (1869) LR 2 PC 430.
  34. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 237.
  35. ↑ J Marshall, "The legal recognition of personality: full-face veils and permissible choice", International Journal of Law in Context, Cambridge University Press, 2014 at 241.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.