The Right to Life in International Law:
Whose Life, What Right?

Julie Self
Café Philosophique
Scarthin Books 2004

A Caution to Everybody
Consider the auk;
Becoming extinct because he forgot how to fly, and could only walk.
Consider man, who may well become extinct
Because he forgot how to walk and learned how to fly before he thinked.
Ogden Nash
http://www.aenet.org/poems/ognash17.htm (17/01/2004)
© by Linell Nash Smith and Isabel Nash Eberstadt

Approach
•Part One:
–Explanation of current human rights law, particularly with regard to right to life
•Part Two:
–Discussion of some particularly interesting issues, e.g.:
•what does it mean to be ‘human’?
•what about resources?
•can rights cross cultural boundaries?



Rights Protection Regimes
•International: United Nations
•Regional:
–Europe
•Note difference between Council of Europe (44 member states) and European Union (25 member states from May 2004)!
–Inter-American
–African
•Other Organisations: OSCE, NATO, etc.

The Right to Life Provision
•Universal Declaration of Human Rights: a sine qua non?
•International Covenant on Civil and Political Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, American Convention on Human Rights, African Charter on Human and People’s Rights, …
•Etc.!
Article 2, ECHR
•1. 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.
Article 2
•2. 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 defence of any person from unlawful violence;
–b. in order to affect a lawful arrest or to prevent the escape of a person lawfully detained;
–c. in action lawfully taken for the purpose of quelling a riot or insurrection
Protocol 6
•Article 1: Abolition of the Death Penalty
–The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.
•Article 2: Death Penalty in Time of War
–A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.
Protocol 13
•‘The Protocol No. 13 (“Protocol”) was adopted by the Committee of Ministers of the Council of Europe, and will be opened for signature to all member states on May 3, 2002. The Protocol provides for the full abolition of the death penalty. The Protocol underlines that “[n]o one shall be condemned to [the death] penalty or executed.” The Protocol prohibits any derogation from or reservation in respect of its provisions under Articles 15 (“Derogation in Time of Emergency”) and 57 (“Reservations”) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Protocol noted that everyone's right to life is a “basic value in a democratic society” and that abolition of the death penalty was “essential for the protection of this right and for the full recognition of the inherent dignity of all human beings.“ ‘

•International Law in Brief, ASIL
ECHR – Article 2
•Imposes duties on state:
•1. Not to ‘arbitrarily deprive’ people of life
–Test; ‘procedural guarantees’
•2. ‘protected by law’
–Most obviously, by anti-homicide legislation
–Non-discrimination

ECHR – Article 2
•‘Positive’ obligation?
•General protection or individual protection?
–Article 6: right to a fair hearing in determination of civil rights and obligations
–In light of obvious, identified, and imminent risk?
ECHR – Article 2
•Osman v. UK
–State’s duty more than a requirement to put in place:
•‘Effective criminal law provisions to deter the commission of offences against the person, backed up by the law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provision’ (para. 115)
ECHR – Article 2
•Right to Life of Terrorists
•Or ‘shoot to kill’?
•McCann and Others v. UK
–‘Deaths on the Rock: the Right to Life of Terrorists’

ECHR – Article 2
•State use of lethal force: Tests from McCann:
–Art 2 provisions to be strictly construed
–‘use of force no more than “absolutely necessary” ‘
•“absolutely necessary” – stricter and more compelling than Arts 8 – 11
–Subject deprivations of life to the most careful scrutiny
ECHR – Article 2
–Positive duty on States to protect life
•National law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State.
–Proportionality of States’ response
–Procedural requirement: adequate investigation
•By, and of, police
•Inquest: independent Coroner/judge, and jury
•Inquiry where necessary: see Finucane v. United Kingdom.
–Equality of representation
•Disclosure; legal aid
ECHR – Article 2
•Articles 1 + 2 read in conjunction:
–State’s general duty … “to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.
ECHR – Article 2
•Forced Disappearance:
–Kurt v. Turkey (1999)
•‘not necessary to consider Article 2’
–Timurtas v. Turkey (2001)
•If last seen in State custody, and a long period of elapsed time with no reasonable explanation of disappearance, then presumption of State responsibility for death
•Inter-American Court
–Velásquez Rodriguez v. Honduras (1988)
–Reversing burden of proof

The Right to Life shall be protected by law

•General principle in paraphrase:
–The Right to Life shall be protected by law
•In brief, taken to mean a negative obligation on State actors:
•That individuals should not be arbitrarily deprived of their lives, and homicide should be deterred, prevented and punished.

The Problem
•To what extent is there a State duty to protect life?
•What life, how much life, whose life, from when to when?
•Does ‘the right to life shall be protected by law’ mean life is sacrosanct?
•Who are ‘the silenced’?
Approaching the Problem
•Define the life to be protected:
•Work out the likely threats to life
•Assess the ability of human rights law to accommodate violations of the right to life regarding the most likely threats


Life’s Boundaries
•Human genetic material? A spirit or soul? A sentient mind?
•From conception? From birth?
•To cardio-respiratory death? To brain death?
•Including which hazards, and how much risk?

Testing the Theory
•Assess the cases: what kind of threats are considered as violations?
•And the ‘unheard cases’; who is being rejected on grounds of admissibility, or does not make it that far because of lack of access to courts or advice?
•Who is not heard because they do not count as a person?

Four Freedoms
•Franklin D. Roosevelt, in his ‘Four Freedoms’ speech considered that ‘translated into world terms [the freedom from fear means] a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbour – anywhere in the world’.
Hazard and Risk
•Hazards are threats to humans and what they value, whereas risks are quantitative measures of hazard consequences that can be expressed as conditional probabilities of experiencing harm. Thus, we think of automobile usage as a hazard but say that the lifetime risk of dying in an auto accident is 2 to 3 percent of all ways of dying.’
–Hohenemser, Kates & Slovic, ‘The Nature of Technological Hazard’, Science, 220, 1983, pp 378 – 84 at p. 379.
What is Life?
•Steven Potter
•‘The word ‘life’ has probably been around ever since mankind began using language. It is a word of fundamental importance to all of us, and seldom do we make it through an entire day without putting it to use. We do so, however, with only a sketchy and subjective idea of what life actually means. This is because, until recently, within the last century or so, it has been easy for people to distinguish between what they call living and what they call non-living. There has been no need to define life precisely; its meaning is intuitively understood’.
Steve M. Potter, (1986) The Meaning of Life, term paper for a Biochemical Evolution Course. Accessed 9/04/2002, http://www.ibiblio.org/jstrout/uploading/potter_life.html . Dr. Potter is still happy to endorse the views expressed in that paper (personal e-mail from Georgia Institute of Technology and Emory University, April 10 2002).
New Questions?
•James Hughes
•‘An example is IVF and the “deconstruction” of parenting. IVF did not create a dilemma of conflicts between birth parents and social parents; that conflict has existed since prehistory as a result of adoption. On the other hand, IVF did make possible the conflict between genetic mothers and birth mothers, two roles which had previously been unitary’.
James J. Hughes, ‘Brain Death and Technological Change: Personal Identity, Neural Prostheses and Uploading’, prepared for Second International Symposium on Brain Death, Cuba, 1996
http://www.changesurfer.com/Hlth/BD/Brainotehtml, accessed 08/01/2002
Human?
•Carlos Santiago Nino
•‘The statement that the only condition for possessing fundamental moral rights is being human seems quite plausible, since it satisfies a deeply rooted egalitarian aspiration. This is so because the property of being human seems to be of the ‘all-or-nothing’ kind, unlike other properties – such as those of being tall, rich, or clever.’
Nino, Carlos Santiago (1991) The Ethics of Human Rights (Oxford: Clarendon Press).

‘Activated Egg’
Ronald Green:
•‘… a cloned embryo is not the result of fertilisation of an egg by a sperm. It is a new type of biological entity never before seen in nature … although board members understood that some people would liken this organism to an embryo, we preferred the term “activated egg,” and we concluded that its characteristics did not preclude its use in work that might save the lives of children and adults.’
Green, Ronald M., Scientific American January 2002, pp. 46 – 48. Green’s contribution on ‘The Ethical Considerations’ appears in a report that human cloning had taken place; Cibelli, J. B., Lanza, R. P., West, M. D., with Ezzell, C., ‘The First Human Cloned Embryo’, ibid , pp. 42 – 49.

To be Human or not to be Human?
•Jeremy Rifkin:
•‘To begin with, the entire notion of a species as a separate recognizable entity with a unique nature becomes an anachronism once we begin recombining genetic traits across natural mating boundaries. […] For the first time in history we become the engineers of life itself. We begin to programme the genetic codes of living things to suit our own cultural and economic needs and desires’
Jeremy Rifkin (1998) The Biotech Century: How Genetic Commerce will Change the World London: Phoenix.

The Future?
•Gregory Stock:
•‘We know that Homo sapiens is not the final word in primate evolution, but few have yet grasped that we are on the cusp of profound biological change, poised to transcend our current form and character on a journey to destinations of new imagination. […]. Never before have we had the power to manipulate our biology in meaningful, predictable ways.
Gregory Stock (2002) Redesigning Humans London: Profile Books

Human Rights Discourse
•‘discourse’ an outworking of power relations?
•Is human rights discourse creating victims?
•‘Are we adjudicating the things we consider important, or making important the things we adjudicate?’
–Adapted from Dr. Fiona Moss, BMA, 2003.
Power of Human Rights?
•A definition of ‘discourse’ implies relations of power, and human rights discourse has the power to give a voice to the silenced; and for those who have been silenced by death, that voice can be more powerful than anything the silenced lives could have dreamed or hoped for. It can be sufficient to protect others in similar circumstances from dying as they have died, and can offer reparation – insufficient always, no matter how much, for the loss of life; but better than nothing.
A World Free From Fear
•Increasing effectiveness of right to life provision:
•1. Autonomous definition
–Defining ‘human’ broadly
•Not ‘defining out’ certain groups
–Defining ‘right to life’ as ‘right to live’
•2. Reparations as an instrument of recognition
•3. Other procedural aspects, such as locus standi
A Proposed Model
•A ‘right to life’ based upon a ‘right to live’:
•A State duty to protect life is an aspect of an overarching duty to promote and sustain life, a ‘right to live’
•Fundamentally, this includes material conditions necessary for health and welfare
•And does not depend upon sentience or fulfilment of duties related to citizenship


Human Rights Websites
· Human Rights Watch: http://hrw.org/
· Amnesty International: http://www.amnesty.org/
Campaign Groups.

· Human Rights Network International: http://www.hrni.org/EN/noflash/default.html
Good background to the theory and practice of human rights, including links to treaties, cases and reports.

· Human Rights Internet: http://www.hri.ca/index.aspx
Useful searchable general resource, including news items – also seems to have pages for schools, Canadian-based but possibly of interest: see ‘Human Rights temperature’ on right-hand side of Welcome screen.

· Access to Law: Legal Resources: Human Rights http://www.accesstolaw.com/site/default.asp?s=32
Useful Links to other websites, particularly UK-based or of interest to UK community.

· Dr. Stuart D. Stein’s ‘Web Genocide Documentation Centre: http://www.ess.uwe.ac.uk/genocide.htm
Resources on genocide and mass killings, including links to Holocaust documents.

· United Nations: http://www.un.org/

· Council of Europe: European Court of Human Rights http://www.echr.coe.int/

· University of Minnesota:
o Human Rights Library: http://www1.umn.edu/humanrts/index.html
o African Human Rights Resource Library: http://www1.umn.edu/humanrts/africa/index.html
Inter-American Court of Human Rights: http://www1.umn.edu/humanrts/iachr/iachr.html
Probably the leading internet resource centre for human rights documentation. Much easier to search than the United Nations sites!



· U.N. Wire: independent electronic news http://www.unwire.org/Channels/HAFS.asp


And don’t forget Google; if you want to look up a case, for instance McCann v UK (ECHR) mentioned above, often it is easiest just to put the name in Google, and quicker than going through the Court’s portal. You will find many human rights cases from the United Nations (Human Rights Committee), European Commission and Court of Human Rights, African Commission and Inter-American Commission and Court available full-text for free on the internet.

These are just a few – there are many more; happy searching!





Julie Self, January 2004, llxjs3@nottingham.ac.uk