l Dr. Ruwantissa Abeyratne
(09 August, 2012, Montreal, Sri Lanka Guardian) Many of us go overseas on mission without giving so much as a thought to the possibility of falling ill or dying in a country other than the one in which we live. If a person dies in a country other than his own, there are no global rules or guidance that dictates the manner in which his remains could be transported back to his country, with dignity and care. This matter was highlighted in 2003 before the European Parliament with a real example of a British national who died while on holiday in Greece. The Greek authorities had carried out an autopsy which concluded that the deceased tourist had died of a heart attack. When the body was transported back home the deceased’s family had requested a second autopsy, only to find that most of the deceased’s organs had been removed in Greece after the autopsy and destroyed, according to Greek law. This had caused severe mental distress to the deceased’s kin.
There are two inevitable aspects or dimensions to this subject: the health and sanitation aspects of carrying human remains by air; and the rights of close relatives of the deceased to bring his remains back home with speedy dispatch.
Human dignity is an international concept which is extended both to the living and the dead. The 1948 Universal Declaration of Human Rights of the United Nations – the cornerstone of human dignity - declares that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundations of freedom, justice and peace in the world and that all human beings are born free and equal in dignity and rights. This statement establishes human dignity as the conceptual basis for human rights. 75% of the constitutions of ICAO’s 191 member States use the concepts of “human dignity” or “personal dignity” explicitly . It follows therefore that if the remains of a human being are not given equal respect and dignity, the moral imperative of the doctrine of human dignity would be rendered destitute of meaning and purpose.
In terms of property rights pertaining to a cadaver or other remains, such rights do not exist at common law. However, for the purpose of transportation - whether it be for embalming, cremation or internment - the corpse or cremated remains of a human being is considered to be property or quasi-property, the rights to which are held by the surviving spouse or next of kin. This right cannot be transferred and does not exist while the deceased is living. A corpse or urn carrying cremated remains may not be retained by either an undertaker or a carrier as security for unpaid funeral expenses, particularly if such were kept without authorization and payment was demanded as a condition precedent to its release. Upon burial the body accrues to the ground and any appurtenant property such as jewelry which was on the corpse on burial accrue to their rightful owner as determined by applicable principles of property laws and wills and testaments as they might exist.
The International Arrangement Concerning the Conveyance of Corpses (Berlin Agreement), signed at Berlin on 10 February 1937 was the first recorded attempt at the unification of rules relating to the carriage of human remains. The agreement, which applied to the international transport of corpses immediately after decease or exhumation, was designed to avoid the difficulties resulting from differences in the regulations concerning the conveyance of corpses, and recognized the necessity and the convenience of laying down uniform regulations in this area of transportation. Accordingly, the signatory States undertook to accept the entry into their territory, or the passage in transit through their territory, of the corpses of persons deceased in the territory of any one of the other contracting countries upon certain conditions, which were incorporated in the Agreement.
The initial condition, as laid out in Article 1 of the Agreement was that, for the conveyance of any corpse by any means and under any conditions, a special laissez-passer be issued for a corpse which would state the surname, first name and age of the deceased person, and the place, date and cause of decease. The competent authority for the place of decease or the place of burial in the case of corpses exhumed had to issue the laissez-passer and it was recommended that the laissez-passer should be made out, not only in the language of the country issuing it, but also in at least one of the languages most frequently used in international relations.
The Berlin Agreement further stated that neither the country of destination nor the countries of transit shall require, over and above such papers as are required under international conventions for the purpose of transports in general, any document other than the laissez-passer referred to in Article 1. The following had to be presented to the competent authority for the issuance of laissez-passer: a certified true copy of the death certificate; and official certificates to the effect that conveyance of the corpse is not open to objection from the point of view of health or from the medico-legal point of view, and evidence that the corpse has been placed in a coffin in accordance with the regulations laid down in the Agreement .
As for packaging the human remains, the Agreement, in Article 3 provided that corpses must be placed in a metal coffin, the bottom of which has been covered with a layer approximately 5 cm. of absorbent matter such as peat, sawdust, powdered charcoal or the like with the addition of an antiseptic substance. Where the cause of decease was a contagious disease, the corpse itself was required to be wrapped in a shroud soaked in an antiseptic solution. A further requirement was that the metal coffin must thereupon be hermetically closed (soldered) and fitted into a wooden coffin in such a manner as to preclude movement. The wooden coffin was required to be of a thickness of not less than 3 cm. and its joints must be completely watertight. It was also required that the coffin be closed by means of screws not more than 20 cm. distant from one another, and strengthened by metal hoops. In the case of transport by air, The Agreement, in Article 7, required that coffins must be conveyed either in an aircraft specially and solely used for the purpose or in a special compartment solely reserved for the purpose in an ordinary aircraft.
The second international agreement was in 1973 called the Agreement on the Transfer of Corpses, and it was drawn up within the Council of Europe by the European Public Health Committee. The Strasbourg Agreement defines the transfer of corpses as the international transport of human remains from the State of departure to the State of destination. Accordingly, the State of departure is that in which the transfer began; in the case of exhumed remains, it is that in which burial had taken place; the State of destination is that in which the corpse is to be buried or cremated after the transport. The Agreement does not apply to the international transport of ashes. Article 3 of the Agreement states that during the transfer, any corpse is required to be accompanied by a special document (laissez-passer for a corpse) issued by the competent authority of the State of departure. The laissez-passer has to include at least the information set out in the model annexed to the Agreement; and be made out in the official language or one of the official languages of the State in which it was issued and in one of the official languages of the Council of Europe.
Article 4 provides that, with the exception of the documents required under international conventions and agreements relating to transport in general, or future conventions or arrangements on the transfer of corpses, neither the State of destination nor the transit State shall require any documents other than the laissez-passer for a corpse. The laissez-passer is issued by the competent authority referred to in Article 8 of the Agreement , after it has been ascertained that: all the medical, health, administrative and legal requirements of the regulations in force in the State of departure relating to the transfer of corpses and, where appropriate, burial and exhumation have been complied with; the remains have been placed in a coffin which complies with the requirements laid down in Articles 6 and 7 of the Agreement; and that the coffin only contains the remains of the person named in the laissez-passer and such personal effects as are to be buried or cremated with the corpse.
The European Community was dissatisfied with both the Berlin Agreement and the Strasbourg Agreement (which only some member States had signed), claiming that these Agreements advocated indirect discrimination by providing for non-European Community residents. Also it was claimed that these two agreements imposed strict rules on the cross-border transfer of mortal remains, applied essentially to 'non-nationals' and hence ran counter to the Community scheme of things. Accordingly, and with a view to addressing the case where a Community citizen expired in a Community country other than his own and his remains had to be repatriated to his country, a Committee was appointed by the European Parliament to consider an instrument that addressed the conveyance of mortal remains suggested in 2003 Resolution 2003/2032 (INI ). This Resolution noted that, on account of the above agreements, the death of a Community citizen in a Member State other than his country of origin results in more complex procedures, a longer period of time before burial or cremation takes place and higher costs than if the death had occurred in the deceased person's country of origin.
Another compelling reason for this Resolution was the recognition that, in view of the growth in intra-Community tourism, the increasing numbers of retired people who choose to live in a country other than their own and, more generally, greater intra-Community mobility which is actually encouraged, the number of Community citizens who die in a country other than their country of origin was bound to increase. This was considered against the backdrop that Community citizens should, mutatis mutandis, be able to move between and reside in Member States in similar conditions to nationals of a Member State moving around or changing their place of residence in their own country, and that exercising the right to freedom of movement and freedom of residence should be facilitated to the utmost by reducing administrative formalities to an absolute minimum.
The European Community was of the view that, at the time the Resolution was proposed, it was still far from true that a Community citizen who dies in a Member State other than his own is treated in the same way as a national who dies in his home country. For , example, the fact that a zinc coffin is required for the repatriation of a corpse from Salzburg to Freilassing (a distance of 10 km) but not for the transfer of a body from Ivalo to Helsinki (a distance of 1120 km)(2).
Therefore it was pointed out that the repatriation of mortal remains without excessive cost or bureaucracy in the event of the death of a European Community citizen in a country other than the one in which either burial or cremation was to take place may be regarded as a corollary of the right of each EU citizen to move and reside freely within the territory of the Member States.
The main thing one must bear in mind is that if one dies overseas, one’s mortal remains or what would become of them would be subject to the laws of the country in which the death occurs. None of the two Agreements discussed in this article shows any empathy for the relatives of the deceased or sympathy towards the deceased. They are only concerned about technicalities after the fact. Surely, we can be more concerned than that.
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