Right to Life
KeywordsEnforced disappearance Human rights treaty bodies Negative and positive obligations Procedural obligation Right to a remedy Euthanasia Abortion In vitro embryo Targeted killings Capital punishment Extraordinary rendition Armed conflict Nuclear weapons
Life is not only synonymous with human existence; it is the “foundation of man as an individual and as a member of society” (Tomuschat et al. 2010, p. 3). Hence, the right to life is not just any one of the fundamental rights but occupies a special position in the value hierarchy, being the most important protected value because life is “the precondition for the exercise of any other right” (Petersen 2012, para. 1). The right to life has thus been defined as the “inalienable attribute of human beings” (Schabas 2015, p. 119), the “supreme right,” and “one of the rights which constitute the irreducible core of human rights” (Schabas 2015, p. 117), and the “fulcrum of all other rights” (African Commission on Human and Peoples’ Rights (2015), General Comment No. 3, p. 7).
Despite being recognized in religious teachings, it is only during the time of the Enlightenment that the right to life found recognition as a legal principle. It can be found in national constitutions as early as the eighteenth century and entered international law in some post-World War I treaties. After the tragedy of the World War II, it became clear that respect for human life was not self-evident and thus the need to reaffirm its importance. The right to life is incorporated in Article 3 of the 1948 Universal Declaration of Human Rights (UDHR) where it is stated: “Everyone has the right to life, liberty and security of person” (Universal Declaration of Human Rights (1948), Art. 3).
Further, it is also enshrined in all major general international and regional human rights conventions which have gradually developed more detailed norms covering certain aspects of the right to life: Article 6 of the 1966 International Covenant on Civil and Political Rights (ICCPR) (International Covenant on Civil and Political Rights (1966), Art. 6), Article 2 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 2), Article 4 of the 1969 American Convention on Human Rights (ACHR) (American Convention on Human Rights (1969), Art. 4), and Article 4 of the 1981 African Charter on Human and Peoples’ Rights (AChHPR) (African Charter on Human and Peoples’ Rights (1981), Art. 4). Moreover, special human rights treaties (such as Article 6 of the 1989 Convention on the Rights of the Child and Article 9 of the 1990 Convention on the Protection of the Rights of Migrant Workers and Members of their Families) embody provisions designed to protect human life. Furthermore, violations of international humanitarian law (as specified in the 1949 Geneva Conventions and Additional Protocols I and II) and international criminal law (as specified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the 2006 International Conventions for the Protection of All Persons from Enforced Disappearance) outlaw specific forms of acts jeopardizing human life.
The right to life is also considered part of customary international law, while the Inter-American Commission on Human Rights (IACommHR) has even recognized it as part of jus cogens. The difficulty of properly defining the right to life rests on the fact that its content is continuously evolving as a result of the development of society and technology. A central feature of the case law of international and regional human rights treaty bodies (courts, commissions, and committees) (human rights bodies), whose task is to monitor implementation of the core international human rights treaties, is interpreting these treaties as a “living instrument.” They should thus be interpreted according to present-day conditions and sensibilities (so-called evolutive interpretation). Human rights bodies have constantly held that the principles of “strict proportionality” and utmost care are inherent in the provision safeguarding the right to life, which must always be broadly interpreted (Schabas 2015, p. 122). The supreme right to life is often linked with freedom from torture and inhuman or degrading treatment or punishment – common threats to physical integrity – and with the right to be free from arbitrary arrest and detention.
Negative and Positive (Procedural) Obligations
The right to life, although originally designed as a negative right, has evolved into a positive duty of protection. It thus encompasses both negative and positive dimensions. Not only is the State required to refrain from depriving the individual of life by action or inaction, with some narrowly defined exceptions, but it also has the duty to take positive steps to ensure and protect the lives of the persons within its jurisdiction against violations which may be committed not only by its agents but also by private persons or entities. The positive obligations stem from the ICCPR, ECHR, and ACHR requirement that the right to life be protected “by law.” While it is clear that the provisions enshrining the right to life address substantive violations when persons are killed or when loss of life is threatened, a fundamental procedural dimension is also entailed (Joseph and Castan 2013, para. 8.100). Pursuant to this, States Parties are required to take all steps necessary to prevent similar violations in the future; conduct an official, prompt, independent, and thorough investigation into killings; criminally prosecute; and, where the evidence so mandates, punish perpetrators; and provide remedy for victims and their next of kin, even if the State Party is not responsible for the death itself (e.g., Inter-American Court of Human Rights (1988), Velásquez Rodríguez v. Honduras, Judgment, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, paras. 174, 177) (IACtHR).
This is the content of the procedural obligation comprised within the right to life whose core is the need to hold accountable those who are responsible for deprivation of life. In the constant case law of human rights bodies, it has been established that this is what effective protection of life entails. A failure to investigate, or an inadequate investigation (Chevalier-Watts 2010), usually triggers a breach of the right to a remedy in conjunction with the provision that enshrines the right to life or of the right to life itself. Criminal prosecution – which usually follows an investigation into the facts – is thus considered the most effective means of ensuring the most fundamental of human rights.
States have been found directly responsible for violation of the right to life provision – and specifically of its procedural dimension – in cases of enforced disappearance even when the death of the disappeared person is hard to prove because the authorities failed to conduct an effective investigation into the circumstances of the death (e.g., Human Rights Committee (1996), Laureano v. Peru, Communication No. 540/1993, U.N. Doc. CCPR/C/56/D/540/1993) (HRC); European Court of Human Rights (2000), Mahmut Kaya v. Turkey, App. No. 22535/93, Judgment) (ECtHR). Purely disciplinary and administrative remedies are often considered inadequate, ineffective, and insufficient due to the importance attaching to the right to life, especially in cases of intentional killing and enforced disappearance (e.g., HRC, Bautista de Arellana v. Colombia (1995), Communication No. 563/1993, U.N. Doc. CCPR/C/55/D/563/1993).
In contrast, these measures may be deemed sufficient where negligent killing is at stake. The practice of impunity is however a clear violation of the right to life. From the foregoing, it is clear that it is no longer sufficient to respect the rights of individuals but necessary to ensure those rights through affirmative action. However, States Parties are left with a margin of appreciation in fulfilling this duty and in deciding what is the most appropriate reaction to a violation. But, due to the teleological interpretation, the positive obligation to protect and ensure the right to life has been construed as entailing an increasing list of obligations and policy measures which are curbing States’ discretion. Other positive obligations include inter alia: the duty to prevent the practice of enforced disappearance, the duty to train relevant personnel, the duty to protect detainees, and the duty to control private entities. However, a violation can only be assumed where the preventive measures are lacking or where they are found to be manifestly inadequate.
Scope: Life and Death
Legal, political, and religious controversy arises in relation to the beginning and end of human life especially in light of developments in genetic research into reproductive science such as in vitro embryos and stem cells and in relation to the daunting bioethical questions raised by euthanasia and assisted suicide.
As to the beginning of the right to life, the admissibility of abortion has generated wide and long-standing contention. Given the lack of a common approach and consensus on the scientific and legal definition of the beginning of life, States Parties are in general considered to enjoy a “wide margin of discretion” (Petersen 2012, para. 36). States are then free to allow or disallow abortion, though human rights bodies can assess their legal framework and decide whether in the specific situation a fair balance has been struck between the competing rights guaranteed by the different instruments. It has been generally confirmed that abortion is compatible with the right to life provision where the life or health of the pregnant woman is endangered or when pregnancy is the consequence of rape. No international human rights instrument regulates the beginning of the protection of human life with the exception of the ACHR. Article 4 (1) states that the “right to life shall be protected [...] in general, from the moment of conception.” Pursuant to this understanding, the human embryo enjoys protection as soon as it comes into existence, but protection is not absolute. Back in 1981, the IACommHR found that the right to life does not ban abortion and that criminalization of abortion in all circumstances raises serious issues (IACommHR (1981), Resolution 23/81, United States Case 2141, “Baby Boy”). Thus a balance must be achieved between competing different legitimate rights: the protection of the unborn life and the right to life and health of the mother often coupled with the right to respect for private and family life. Thus the protection of the fetus is far from being absolute, and States Parties enjoy a broad margin of appreciation in determining when life begins.
Not only the inter-American system but also the ECtHR has developed a rich case law on the issue of abortion. In the landmark case of Evans v. The United Kingdom on medical-assisted procreation, the Grand Chamber unanimously dismissed the Article 2 claim because the question of when human life begins and how to balance the conflicting interests of parties that can arise in such treatment was within the government’s purview, and the United Kingdom did not recognize embryos as human lives. In addition, the list of exceptions to the right to life (Article 2 (2) ECHR) only takes into consideration human life after birth and not the human life of the unborn (ECtHR [GC] (2007), Evans v. The United Kingdom, App. No. 6339/05, Judgment). In Vo v. France, the Grand Chamber again found no violation of the right to life and stated that it was “neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person” under Article 2 ECHR (ECtHR [GC] (2004), Vo v. France, App. No. 53924/00, Judgment, para. 85). Likewise, the embryo in vitro raises difficult challenges. Different human rights treaties offer different levels of protection. While the protection stemming from the ACHR seems to encompass the in vitro embryo, albeit not without exceptions, the ECHR does not protect unborn human life. The ECtHR tends to forego examination of the sensitive and controversial question of when human life begins and tends to examine the issue of embryo donation and scientific research under Article 8 (right to respect for private and family life) paying deference to States Parties’ wide discretion in this field (ECtHR [GC] (2015), Parrillo v. Italy, App. No. 46470/11, Judgment). In turn, the ICCPR is silent on this issue. While some scholars emphasize the embryo’s potential for becoming a human being, the truth is that such potential begins with implantation, and thus under Article 6 ICCPR “it seems plausible to protect the embryo only from this point on” (Petersen 2012, para. 10).
As to the end of human life, active or passive euthanasia, assisted suicide, and withdrawing of life-sustaining treatment raise other major controversies. While systematic homicide is certainly irreconcilable with the right to life, in the last 15 years, certain countries have legalized some forms of euthanasia and assisted suicide in order to meet the desire of patients often at the final stages of their incurable disease, which has often left them in a distressing and undignified condition. Here again, the lack of consensus as regards the right of an individual to choose how and when to end his/her life allows States Parties to retain a wide margin of appreciation. While on the one hand the right to life does not contain an obligation to live, on the other the right to life cannot be interpreted as conferring a right to die (ECtHR (2002), Pretty v. The United Kingdom, App. No. 2346/02, Judgment). States Parties are thus not required to protect a person’s life against its his/her will when the specific decision to terminate life is compatible with the domestic legal framework and when the decision-making process is in line with the positive and procedural obligations flowing from the right to life provision. To regulate such a decision, countries have also introduced “laws on advance healthcare directive” (e.g. recently Italy, with Law No. 219 of 22 December 2017) by which people may specify what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. Cases involving euthanasia and assisted suicide also often arise under the provisions that prohibit inhuman or degrading treatment and under the right to respect for private and family life. Generally, human rights bodies tend not to set themselves up over the competent domestic authorities given States Parties’ considerable room for manoeuver but have expressed caution with regard to laws which permit voluntary euthanasia. For example, despite not finding the 2001 Dutch euthanasia law in breach of the right to life provision, except for the provisions regarding the absence of consent for termination of the life of minors, the HRC stated that “the most rigorous scrutiny” must be applied to determining “whether the State party’s obligations to ensure the right to life are being complied with” (HRC (2001), Concluding Observations of the Human Rights Committee: Netherlands, U.N. Doc. CCPR/CO/72/NET, para. 5(a)). In addition, the HRC held that the State Party “must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. The ex ante control mechanism should be strengthened.” (HRC (2001), Concluding Observations of the Human Rights Committee: Netherlands, U.N. Doc. CCPR/CO/72/NET, para. 5(d)).
Exceptions and Derogations
Despite being a non-derogable right in times of public emergency, the right to life is not absolute. Human rights instruments do allow certain exceptions that limit its application. The ECHR sets forth a list of specific limitations, while the ICCPR, the ACHR, and the AChHPR contain a broader limitation clause, which only forbids “arbitrary deprivations” of life. In the latter three instruments, in order to be more flexible and facilitate negotiations, the drafters opted for this vague and controversial term instead of narrowly defining a specific set of limitations. While it is not always easy to define a priori the meaning of “arbitrary” – something which can lead to abuse – jurisprudence and commentators alike agree that strict proportionality, appropriateness, reasonableness, predictability, utmost precaution, necessity, and strict scrutiny are the balancing tests that must be used in determining whether life has been taken arbitrarily.
The so-called War on Terror and the practice of targeted killings have further complicated the question of what can be deemed “arbitrary” (HRC (2003a), Concluding Observations of the Human Rights Committee: Israel, U.N. Doc. CCPR/CO/78/ISR). Article 2 (2) ECHR authorizes the use of lethal force under three circumstances: (1) defense of any person from unlawful violence (self-defense), (2) carrying out a lawful arrest or preventing the escape of a person lawfully detained, or (3) measures to quell a riot or insurrection. These exceptions appear to be exhaustive. The introductory paragraph clarifies that the exceptions are only permitted when they result “from the use of force which is no more than absolutely necessary.” In any case, the use of force must be “strictly proportionate to the achievement of the aims” under Article 2 (2) (ECtHR [GC] (2011), Giuliani and Gaggio v. Italy, App. No. 23458/02, Judgment, para. 176), and any deprivation of life must be subjected “to the most careful scrutiny,” bearing in mind “all the surrounding circumstances including such matters as the planning and control of the actions under examination” (ECtHR [GC] (1995), McCann and Others v. The United Kingdom, App. No. 18984/91, Judgment, para. 150). Lethal force in self-defense will only be justified if a serious threat of death or serious injury is perceived. As to a lawful arrest or prevention of escape, the ECtHR does not accept the use of lethal force where the victim does not pose a threat. Article 2 (2) ECHR not only refers to intentional killings but also covers any death “resulting from the use of force.”
Another important problem is the relationship between the right to life and capital punishment. While the death penalty is explicitly forbidden by Additional Protocol No. 13 ECHR (Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the Abolition of the Death Penalty in all Circumstances (2002)) (Additional Protocol No. 6 ECHR contains certain exceptions) (Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (1983)) and by the Second Optional Protocol to the ICCPR (with the exception of capital punishment in times of war “pursuant to a conviction for a most serious crime of a military nature”) (Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (1989)), human rights instruments do not enshrine any prohibition of the death penalty although certain conventions impose limitations on its application (Burgorgue-Larsen and Úbeda de Torres 2011, para. 12.03). This was consistent with the practice of States when the relevant convention was adopted.
The AChHPR does not include any reference to the death penalty. Article 6 (2) ICCPR establishes that “sentence of death may only be imposed for the most serious crimes.” In addition, only persons older than 18 years can be sentenced to capital punishment, and pregnant women must be exempted from execution (Article 6 (5) ICCPR). Other limitations stemming from Article 6 ICCPR are the requirement of nulla poena sine lege and of a final judgment by a competent court. The HRC considers the prohibition on executing a person having committed such a crime as a minor to be part of customary international law. Likewise, Article 2 (1) ECHR enshrines a death penalty exception “in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Given that today the death penalty no longer exists within the territory of the Council of Europe, the case law of the ECtHR is “almost entirely confined to extraterritorial imposition of capital punishment, essentially extradition and expulsion cases” (Schabas 2015, p. 140). In Al Nashiri v. Poland – a case involving “extraordinary rendition” – the ECtHR confirmed that “Article 2 of the Convention prohibits the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there” (ECtHR (2014), Al Nashiri v. Poland, App. No. 28761/11, Judgment, para. 576). The ECtHR, starting from the seminal Soering v. United Kingdom case, has considered the issue of the death penalty not only from the viewpoint of the right to life but especially under the prohibition of cruel, inhuman, and degrading treatment (Article 3) (in relation to the so-called “death row phenomenon”) (ECtHR (1989), Soering v. The United Kingdom, App. No. 14038/88, Judgment). In the same vein, Article 4 ACHR lists the death penalty as an exception to the right to life, recommending that it should be limited by all possible means. Five out of six paragraphs of Article 4 ACHR focus on restrictions and limitations.
Given the absence of a consensus on abolition comparable to that of the Council of Europe, a divide emerges between those countries where capital punishment has been abolished and those where it still exists. Restrictions and limitations apply to the latter countries. As stated by Article 4 (3) ACHR, the death penalty once abolished cannot be reestablished. Although the ICCPR does not enshrine a similar clause, from an analysis of the case law, it can be argued that the ICCPR follows this path (Petersen 2012, para. 24). Not only did the HRC, in General Comment No. 6 on the Right to Life, consider the abolition of capital punishment as “progress in the enjoyment of the right to life” (HRC (1982), General Comment 6, Article 6, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 6), but in Roger Judge v. Canada, it also clarifies how States Parties having abolished the death penalty are not only prevented from reintroducing it but from exposing any person under their jurisdiction to the real risk of its application (HRC (2003b), Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998).
Another daunting dilemma relates to application of the right to life provision to situations of hostilities. The HRC stressed that Article 6 requires States to prevent and minimize war and armed conflict (HRC (1982), General Comment 6, Article 6, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 2). In its controversial General Comment 14 on Nuclear Weapons and the Right to Life, it also went further in condemning States with nuclear capabilities, arguing that “[t]he production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (HRC (1984), General Comment No. 14, Article 6, U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994), para. 6). But the International Court of Justice (ICJ) rejected this view in its 1996 Nuclear Weapons Advisory Opinion (ICJ (1996), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 226).
The right to life provision enshrined in the different human rights treaties does not make any reference to the protection of life during armed conflict. But Article 15 (2) ECHR refers to the possibility of derogating Article 2 in relation to “lawful acts of war.” Other instruments do not contain a similar clause. Nonetheless, the case law of human rights bodies and in particular of the ECtHR has reaffirmed that the obligations stemming from the relevant treaty, including the procedural obligation attached to the right to life, do not cease to apply during armed conflict. The ICJ has already made it clear that human rights law continues to apply during war with the caveat that international humanitarian law operates as a lex specialis vis-à-vis international human rights law.
In the Advisory Opinion on Nuclear Weapons, the ICJ clearly stated that the protection afforded by the ICCPR does not cease in times of war. For the ICJ, the right to life applies equally during the course of hostilities, but “the test of what is an arbitrary deprivation of life […] then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities” (ICJ (1996), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 226, para. 25). This rationale was reaffirmed by the ECtHR in Hassan v. The United Kingdom (ECtHR [GC] (2014), Hassan v. The United Kingdom, App. No. 29750/09, Judgment), but the Court “had been chary of invoking international humanitarian law in its interpretation and application of the European Convention” in right to life cases (Schabas 2015, p. 154). The rules concerning the use of lethal force by the military, and the consequent loss of life of civilians who do not participate actively in hostilities (“collateral damage”), came to the attention of the ECtHR in a series of cases involving Russia and stemming from the Chechen conflict (e.g., ECtHR (2005), Isayeva v. Russia, App. No. 57950/00, Judgment). In this case law, the ECtHR considered for the first time whether warfare could be in conformity with human rights provisions and found that the framework of the ECHR was well suited to addressing war crimes without the need to defer to a lex specialis. Because Russia had not declared a state of emergency and no derogation had been formulated in accordance with Article 15 ECHR, the authorization for lawful military operations contained therein was thus inapplicable. Thus, the ECtHR had to evaluate Russian military operations resulting in the killing of civilians against a “normal legal background” (ECtHR (2005), Isayeva v. Russia, App. No. 57950/00, Judgment, para. 191), that is to say exclusively on the basis of the exception clauses under Article 2 (2). The ECtHR based its assessment on legitimacy of aim and on a proportionality test. Finding Russia in violation of the procedural dimension attaching to Article 2 ECHT, the ECtHR reaffirmed that, where there is reason to believe that the victim died in violation of Article 2, States Parties have to conduct an “independent, effective and thorough investigation” into the facts (ECtHR (2005), Isayeva v. Russia, App. No. 57950/00, Judgment, para. 202).
In Conclusion: Environmental and Socioeconomic Dimensions
Part of case law as well as legal scholarship tends to give the right to life a wider scope as a result of the positive obligations stemming from human rights. Thus, the right to life is often conceived as a legal basis for positive social obligations binding on States, such as the right to food, the right to health, and the right to a healthy environment. Pursuant to this rationale, the precondition of every human life is not only the absence of killing but also the satisfaction of certain survival requirements (Petersen 2012, para. 31). Recognizing that Article 6 has a socio-economic dimension (HRC (1982), General Comment 6, Article 6, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 5), the HRC has generally found individual complaints to be inadmissible due to their being insufficiently substantiated. It should be taken into account that social rights are protected by specific provisions of the International Covenant on Economic, Social, and Cultural Rights, which offer a broader protection. Determining the proper equilibrium between unrestricted enjoyment of the right to life and permissible governmental interference is no easy task: vigilance and prudence must always be employed. The rule of law is, as always, a necessary precondition for the peaceful enjoyment of the most fundamental of human rights.
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