Right to personal identity

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.

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.

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 Naziism.[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]

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 Urugnay[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]

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]