Individual and Collective Human Rights: Right to Life

Pustorino, Pietro

doi:10.1007/978-94-6265-563-8_6

Pietro Pustorino²

944 Accesses

Abstract

After some preliminary remarks on the issue of the classification of human rights, the chapter focuses on the right to life, analyzing the negative and positive obligations of States as well as the horizontal and extraterritorial application of international norms on the right to life. The chapter devotes great attention to the examination of the legal regime applicable to the death penalty and to the most recent and problematic aspects of the right to life—namely the beginning of life and the protection of the unborn; the medically assisted reproduction and surrogacy; the end of life, including euthanasia and the interruption of artificial hydration and nutrition for individuals in a permanent and irreversible vegetative state.

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Notes

1.
See Chap. 14, Sect. 14.2.
2.
See Article 23(1) of the ACHPR and General Principle No. 38 of the Declaration on Human Rights of 18 November 2012 adopted by ASEAN, which instead recognises this right in individual and collective form.
3.
See Chap. 2, Sect. 2.4.2.
4.
See Article 3 UDHR.
5.
See appl. no. 18984/91, para 194.
6.
On the relationship between these specific issues, see Chap. 3, Sect. 3.8.
7.
See para 211 of the judgment.
8.
In this regard see HRC, General Comment No. 36 of 30 October 2018, paras 23–24.
9.
See Chap. 3, Sect. 3.7.
10.
See paras 7 and 21 thereof.
11.
In this regard see ECtHR judgment of 13 April 2017 in Tagayeva and Others v. Russia, appl. no. 26562/07 and six other applications, para 565.
12.
See para 116.
13.
HRC, General Comment No. 36, para 20.
14.
See appl. no. 23458/02, paras 189 and 192–194.
15.
See appl. no. 30909/06.
16.
See judgment of 9 July 2019, Romeo Castaño v. Belgium, appl. no. 8351/17.
17.
See judgment of 20 October 2009, Agache and Others v. Romania, appl. no. 2712/02, para 83. Similar points have been made by the Strasbourg Court with reference to offences constituting violations of the prohibition of torture: see judgment of 23 February 2016, Nasr and Ghali v. Italy, appl. no. 44883/09, paras 270–272.
18.
See judgment of 26 May 2020, Makuchyan and Minasyan v. Azerbaijan and Hungary, appl. no. 17247/13.
19.
On the relationship between this question and the concept of jurisdiction in human rights treaties, see Chap. 3, Sects. 3.6–3.6.3.
20.
In this respect see ECtHR judgment of 14 November 2019, N.A. v. Finland, appl. no. 25244/18, para 57.
21.
In the relevant cases the ECtHR analysed the applicant’s situation both under Article 3 (Prohibition of torture) and Article 2 (Right to life).
22.
Appl. no. 41738/10, para 183 of the judgment. In Savran v. Denmark, appl. no. 57467/15, the ECtHR (Grand Chamber), with judgment of 7 December 2021, reiterated its stance, ruling out that the applicant’s expulsion to Turkey had exposed him to a “serious, rapid and irreversible decline in his state of health resulting in intense suffering”.
23.
See para 62.
24.
See the decision of 24 October 2019, published on 7 January 2020, in Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, para 9.11.
25.
Id., para 9.12.
26.
See the Views of 21 July 2022, Daniel Billy and Others v. Australia, CCPR/C/135/D/3624/2019, paras. 8.3–8.8.
27.
See order no. 5022 of 24 February 2021.
28.
See infra, Sect. 6.5.
29.
See Articles 4(1)(b), 4(1)(c) and 7(1) of the Convention.
30.
See Article 1 UDHR.
31.
Appl. no. 53924/00, para 85.
32.
ECtHR (Grand Chamber), judgment of 10 April 2007, appl. no. 6339/05, para 56.
33.
In this regard, see also HRC, General Comment No. 36 of 30 October 2018, para 8.
34.
ECtHR, judgment of 30 October 2012, appl. no. 57375/08, P. and S. v. Poland.
35.
Complaint no. 87/2012.
36.
See Article 4(1) ARSIWA according to which “The conduct of any State organ shall be considered an act of that State under international law … whatever its character as an organ of the central Government or of a territorial unit of the State”.
37.
See IACtHR judgment of 28 November 2012, Artavia Murillo et al. (“in vitro fertilisation”) v. Costa Rica, paras 264 and 315.
38.
See Inter-American Commission Resolution No. 23/81 of 6 March 1981 (case 2141), paras 18 ff.
39.
In this regard, see the ACtHPRA judgment of 28 November 2019 in Ally Rajabu and Others v. United Republic of Tanzania, appl. no. 007/2015, paras 92 ff.
40.
See paras 5, 10, 16 and 33. Similar provisions are contained in Articles 4(2) and 4(5) ACHR.
41.
See paras 30 and 34.
42.
See Article IX of the Treaty.
43.
See judgment no. 223 of 27 June 1996, para 5 of the conclusions on points of law.
44.
See para 34.
45.
See para 5.
46.
Appl. no. 61498/08, para 120.
47.
See judgment of 7 July 1989 in Soering v. The United Kingdom, appl. no. 14038/88.
48.
See para 137 of the judgment.
49.
See Chap. 2, Sect. 2.4.2.
50.
See Chap. 7, Sect. 7.2. The classification of the death penalty as an inhuman or degrading punishment irrespective of how it is actually carried out is further affirmed at the universal level in the abovementioned General Comment of 30 October 2018 adopted by the HRC, para 51.
51.
See Article 14 of the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997.
52.
See Article 13 of the Oviedo Convention.
53.
See Chap. 9, Sects. 9.1–9.1.5.
54.
It should be noted that solutions similar to those adopted by the ECtHR have been reached by the IACtHR in relation to cases of a total prohibition of access to assisted procreation techniques considered contrary to several provisions of the ACHR: judgment of 28 November 2012, Artavia Murillo et al. v. Costa Rica, paras 136 ff.
55.
Appl. no. 57813/00.
56.
On the Grand Chamber’s jurisdiction on review, see Chap. 4, Sect. 4.1.
57.
On “warning judgments”, see Chap. 4, Sect. 4.3.3.
58.
Appl. no. 54270/10, para 62.
59.
See para 13 of the conclusions on points of law.
60.
For a concise analysis of the national rules approved in this regard by the States parties to the ECHR, see the ECtHR advisory opinion of 10 April 2019 based on the mechanism provided for in Protocol No. 16 (see Chap. 4, Sect. 4.1), paras 23–24.
61.
Appl. no. 65192/11.
62.
Appl. no. 65941/11.
63.
Appl. no. 25358/12.
64.
Request no. P16-2018-001.
65.
See para 55 of the opinion.
66.
Appl. nos. 1462/18 and 17348/18.
67.
Appl. no. 46470/11.
68.
Appl. no. 46043/14.
69.
ECtHR, decision of 27 June 2017, Gard and Others v. United Kingdom, appl. no. 39793/17.
70.
Appl. no. 18533/21.
71.
See para 9.
72.
See respectively the ECtHR judgments of 20 January 2011 in Haas v. Switzerland, appl. no. 31322/07, para 51, and of 14 May 2013 in Gross v. Switzerland, appl. no. 67810/10, para 59.
73.
See judgment of 4 October 2022, Mortier v. Belgium, appl. no. 78017/17, paras. 138–139.
74.
See supra, Sect. 6.2.4.
75.
On the content of these obligations, see Chap. 3, Sect. 3.10.
76.
See judgment of 12 July 2005 in Moldovan and Others v. Romania (no. 2), appl. nos. 41138/98 and 64320/01, paras 111 and 113.
77.
Appl. nos. 43577/98 and 43579/98, para 145.
78.
Article 26 (Progressive Development): “The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires”.
79.
See paras 100 ff.
80.
See General Comment No. 14 of 11 August 2000 on Article 12 (The Right to the Highest Attainable Standard of Health), para 12.
81.
See para 2.
82.
See para 4 of the General Comment, which also refers to the criteria of quantity and quality of food, considered necessary to define an adequate level of nutrition.
83.
The Resolution also highlights the relationship between the right to water and the right to life, noting that the right to water is “essential for the full enjoyment of life and all human rights”: para 1.
84.
See paras 1–2.
85.
See paras 1–2.
86.
Id., para 6.

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Department of Law, Luiss University, Rome, Italy
Pietro Pustorino

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Pustorino, P. (2023). Individual and Collective Human Rights: Right to Life. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_6

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DOI: https://doi.org/10.1007/978-94-6265-563-8_6
Published: 01 January 2023
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-562-1
Online ISBN: 978-94-6265-563-8
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