HUMR5120
Substantive Rights
The Right to Life
24 October 2008: The
right to life
Maria Lundberg, NCHR
1
The Universal Declaration of
Human Rights (UN, 1948)
• The UDHR links the two rights:
• Art. 3: ”Everyone has the right to life,
liberty and security of person.”
• In other instruments these rights are
separated – note case law
24 October 2008: The
right to life
Maria Lundberg, NCHR
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The right to life
• A fundamental right
• ”It must also be born in mind that, as a provision (art. 2)
which not only safeguards the right to life but sets out the
circumstances when the deprivation of life may be
justified, Article 2 (art.2) ranks as one of the most
fundamental provisions in the Convention”
• No derogation in peace time
• One of the basic values of the democratic societies
making up the Council of Europe (McCann and others v.
the United Kingdom, Judgment 27 September 1995, Ser.
A, No. 324, para. 147)
24 October 2008: The
right to life
Maria Lundberg, NCHR
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No derogations
• The right to life:
– ”It is the supreme right from which no derogation is permitted
even in time of public emergency which threatens the life of the
nation” CCPR Gen Comment 6, The right to life (article 6), para
1.
• Art. 4. ICCPR and Art. 6.2 of the Second Optional
Protocol to the ICCPR Aiming at the Abolition of the
Death Penalty
• Art. 15 of the ECHR and Art. 3 of Protocol no. 6, (Öcalan
v. Turkey (App.46221/99), Judgment of the Grand
Chamber of 12 May 2005, paras. 163-166), Art. 2 of
Protocol no.13 concerning the Abolition of the Death
Penalty in all circumstances – no derogations.
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Interdependence and indivisibility
• Reduce infant mortality and increase life
expectance by eliminating malnutrition and
epidemics (CCPR Gen Comment 6, The
right to life (article 6), para 5)
– Art. 11 and 12 ICESCR
24 October 2008: The
right to life
Maria Lundberg, NCHR
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The right to life
Art. 6.1 ICCPR:
• ”Every human being has
an inherent right to life.
This right shall be
protected by law. No one
shall be arbitrarily
deprived of his life”
24 October 2008: The
right to life
Art. 2.1 ECHR
• ”Everyone’s right to life
shall be protected by law.
No one shall be deprived
of his life intentionally
save in the execution of a
sentence of a court
following his conviction of
a crime for which this
penalty is provided by
law.”
Maria Lundberg, NCHR
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Life
• Its beginning and end:
• Art. 4.1 of the American Convention on
Human Rights (1969):
• ”This right shall be protected by law and,
in general, from the moment of
conception.”
• The ICCPR and ECHR are silent on this
matter
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Life - start
•
•
•
•
ECHR
Abortion: Is the foetus protected?
Divergence of thinking – at conception or when ”viable” or live birth
Against the wishes of the father:
– The State has a measure of discretion. If in accordance with law than
permissible, H v. Norway (Appl. 17004/90), Decision [Commission] of 30
November 1994; Boso v. Italy (App. 50490/99), Admissibility decision 5
September 2002
• On medical grounds.
– ”If Article 2 were held to cover the foetus and its protection under this
Article were, in the absence of any express limitation, seen as absolute,
an abortion would have to be considered as prohibited even where the
continuance of the pregnancy would involve a serious risk to the life of
the pregnant woman.”
• The discretion of the State as to when life begins is confirmed in, Vo
v. France (App. 53924/00),Judgment of the Grand Chamber of 8July
2004
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Life - end
• The end of life:
• Euthanasia
• No right to an assisted suicide.
– An obligation to protect life. Art. 2 does not
relate to quality of life or self-determination;
Pretty v. the UK (App. 2346/02), Judgment of
29 April 2002
24 October 2008: The
right to life
Maria Lundberg, NCHR
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The right to life
Art. 6.1 ICCPR ”No one shall be arbitrarily deprived of his life”
Art. 2.1 ECHR: ”No one shall be deprived of his life intentionally
save…”
• Art. 6.1 ICCPR ”Arbitrary deprivation of life”:
1. Includes the elements of
– unlawfulness and injustice and
– capriciousness unreasonableness
2. It is a right which should not be interpreted narrowly , CCPR Gen
Comment 6, The right to life (article 6), para.1
3. The term “arbitrarily” aims at the specific circumstances of an
individual case and their reasonableness (proportionality), making it
to difficult to comprehend in abstractu (Nowak, p. 129, para 14)
24 October 2008: The
right to life
Maria Lundberg, NCHR
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The right to life
• Art. 2.2 ECHR:
• ”Deprivation of life shall not be regarded as
inflicted in contravention of this article when it
results from the use of force which is no more
than absolutely necessary
– (a) in defense of any person from unlawful violence
– (b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained
– © in action lawfully taken for the purpose of quelling a
riot or insurrection”
24 October 2008: The
right to life
Maria Lundberg, NCHR
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State obligations
•
•
1.
2.
Safeguard the right to life:
ICCPR: States shall prevent
wars,
acts of genocide, defintions
–
–
3.
4.
Art. II of the Convention on the Prevention and punishment of
the Crime of Genocide (UN, 1948)
Art. 6 Statute of the International Criminal Court, (Rome, 1998)
and other acts of mass violence causing arbitrary loss
of life, CCPR Gen Comment 6, The right to life (article 6), para.2
“The production, testing, possession, deployment and
use of nuclear weapons should be prohibited as
crimes against humanity.” (CCPR Gen Comment 14,
Nuclear weapons and the right to life (Article 6), para.6
(cf. individual cases declared inadmissible
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Positive obligations
•
•
The expression ”inherent right to life” cannot be properly understood in a
restrictive manner, and the protection of this right requires that States
adopt positive measures (CCPR Gen Comment 6, The right to life (Article 6),
para.5)
–
Rodger Chongwe v. Zambia (Comm. 821/1998): An obligation to protect life:
the use of leathal force without lawful reason
–
Suarez de Guerrero v. Columbia (Comm. 45/1979):
–
An intentional deprivation of life
–
Criteria: no warning and no explanation of the intentions, not necessary in the
defence of the police or others, not necessary for the arrest, mere suspects of
a kidnapping
–
Conclusion: disproportionate and arbitrary, thus life not adequately protected
by law
“The applicant complained in addition that the respondent State’s failure to warn
and advise her parents to monitor her health prior to her diagnosis with
leukemia…In this connection the Court considers that the first sentence of Article
2§1 enjoins the State not only to refrain from intentional taking of life, but also to
take appropriate steps to safeguard the lives of those within its jurisdiction..” (LBC
v. the United Kingdom (14/1997/798/1001), Judgment 9 June 1998, para. 36)
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Positive obligations
•
•
•
•
•
Starting point an effective criminal procedure.
”The obligation to protect life under this provision, … requires by implication
that there should be some form of effective official investigation when
individuals have been killed by, inter alios, agents of the State (McCann and
others v. the United Kingdom, Judgment 27 September 1995, Ser. A, No.
324, para. 161)
”However, neither the prevalence of violent armed clashes nor the high
incidence of fatalities can displace the obligation under Article 2 to ensure
the effective, independent investigation is conducted into the deaths arising
out of clashes involving the security forces, more so in cases such as the
present where circumstances are in many respects unclear” (Kaya v.
Turkey (App. 22729/93), Judgment 19 february 1998, para 91)
Investigation must be carried out promptly in order to maintain confidence in
the authorities and the rule of law – 5 years and no result Yasa v. Turkey
(App. 22495/939, Judgment 2 September 1998, paras. 92-108)
Since the inquest could not actually play effective role in the identification of
or in the prosecution of any criminal offences it did not comply with Art. 2
ECHR, see Hugh Jordan v. the United Kingdom (app. 24747/94), Judgment
of 4 may 2001, Cf McCann case
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Positive obligations
• The duty to investigate arises wherever life has been lost
in circumstances potentially engaging the responsibility
of the State (Jacobs and White, p.68)
• Disappearances
• Specific measures to prevent disappearances
• To effectively investigate by an impartial body (Celis
Laureano v. Peru (Comm. 540/1993)
• Failure of the State to give any explanation of where the
person was and the length of time (6,5 years) gave
sufficient grounds (Timurtas v. Turkey (App23531/94),
Judgment 13 June 2000)
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right to life
Maria Lundberg, NCHR
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How far does the obligations go?
• The state should take appropriate steps to
safeguard lives of those within their jurisdiction
• What is reasonable under the circumstances:
– Knowledge about a real and immediate risk
– Failing to take measures within the scope of their
powers (Osman v. the United kingdom (App.
23452/94) judgment 28 October 1998
• Health risks: How far can a principle of giving
information be extended? A duty to give
accurate information about serious health risks
to the public in general - Could it also arise in
activities by private individuals?
24 October 2008: The
right to life
Maria Lundberg, NCHR
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Cases to prepare for week 46
24 October 2008: The
right to life
Maria Lundberg, NCHR
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