The concepts of humanrights and liberties came up particularly because of the experience of theSecond World War1.
This is evident from the preamble of the UN Charter2; “War, which twice in our lifetime hasbrought untold hardship to mankind”. And because of the hugeatrocities committed at that period, it became crucial for a great value to beattached to human life. Since then, both the international and the regional governmentshave been making various laws to protect human rights. Although, different humanrights are specifically enumerated in the international documents of humanrights.
Among these rights, the right to life is the most fundamental. Thepre-existence of life itself, consequently, gave birth to all other rights andas a matter of fact, all other rights are created to add values to the right tolife.Among the variousinternational and humanitarian laws protecting the right to life is the Article3 of the Universal Declaration of Human Rights which states that: ‘Everyone has the right to life, liberty, andsecurity of person’The protection of thisright is also enshrined in Article 6 of the International Covenant on Civil andPolitical Rights”. Article 6 of the Convention on the Rights of the Childsimilarly protects the right to life. However, this essay willexamine the protection of life, the state obligation to provide preventivemeasures against arbitrariness and the violations of the right to life underdifferent treaties, but, more attention will be given to the EuropeanConvention on Human Rights.
Article 2 of the EuropeanConvention on Human Rights states that: “Everyone’s right to life shall beprotected by law. No one shall be deprived of his life intentionally save inthe execution of a sentence of a court following his conviction of a crime forwhich this penalty is provided by law”. The protection underthese major treaties is very similar in the sense that, they all emphasizethat, no one life may be arbitrarily deprived. The treaties not only recognisethe positive obligation to refrain from unlawful deprivation of life but also,the obligation on the authorities to take steps to prevent avoidable loss oflife. However, only the European Convention on human rights gives furtherguidance as per the conditions regulating the use of force. The ECHR3 explains further that: “Deprivation of life shall not beregarded as inflicted in contravention of the Article when it results from theuse of force which is no more than absolutely necessary:(a) in defence of anyperson from unlawful violence;(b) in order to effect alawful arrest or to prevent the escape of a person lawfully detained;(c) in action lawfullytaken for the purpose of quelling a riot or insurrection”.However, bothinternational and regional laws recognise the right to life as the mostsubstantive right.
All the major treaties refer to it as a fundamental rightwhich is non-derogable, yet the ECHR considers the lawful killings underinternational humanitarian agreements as exemptions to this non-derogability tothe right to life and it does not regard the use of lethal force as”arbitrary” However, for life not tobe at risk, the state must fulfil its duty to provide adequate protection. Theuse of lethal force must be strictly regulated by law, to the extent that itcannot be used by the state agents unless it is absolutely necessary. The useof lethal force must be proportionate and must be used as a last resort. In the UK for instance,Jean Charles de Menezes was killed by the police in a bid to carry out a legalarrest4. He was on his way to workwhen, without warning, he was pulled and pinned to the ground by a policeman.With his hands behind him, he was shot from behind seven times in the head bymembers of the specialist firearms unit of the British Police Service. Jean Charles de Menezeswas unarmed, he did not resist arrest nor attempted to escape from the police.
The Victim was later cleared of all criminal allegations, yet his killing wassaid to be within the limits of “necessary force”5. This pronouncement,nevertheless, is an indication of the level at which necessary force is set inthe UK, as one can only expect, very few positive results when people are shotin the back of the head. Also in “McCann& Others v UK”6, a case involving threepersons shot in Gibraltar by members of the Special Air Service, the Courtconcluded that there had been a violation of Article 2 because the operationcould have been executed without the need to kill persons suspected of plantinga bomb in Gibraltar. In its Grand Chamber judgment, the Court commented thatArticle 2 ranks as one of the most fundamental provisions in the ECHR.The ECtHR has alsoemphasized the importance of the right to life within the framework of the ECHRthat: “The use of the term “absolutelynecessary” in Article 2:2 indicates that a stricter and more compellingtest of necessity must be employed from that normally applicable whendetermining whether State action is ‘necessary in a democratic society’ underparagraph 2 of Articles 8 to 11 of the Convention. In particular, the forceused must be strictly proportionate to the achievement of the aims set out insub-paragraphs 2 (a), (b) and (c) of Article 2.’32” The same Article 2 of theconvention, to which both Britain and Ireland are signatories, states that:”Everyone’s right to life shall be protected by law”.In Britain, section 6 of theHuman Rights Act 1998 makes it “unlawful for a public authority to act ina way which is incompatible with a convention right”.
There is a similarprovision in Ireland where section 3 of the European Convention on Human RightsAct 2003 states that: “Subject to any statutory provision(other than this Act) or rule of law, every organ of the State shall performits functions in a manner compatible with the State’s obligations under theConvention provisions.”DeathPenaltyAll the major treatiesstate that life is non-derogable, but the ECHR confirms: “Certainexceptional cases when the occurrence of death is not a violation of thisright. For instance, the state reserves the right to use death sentence in timeof war for the most serious military crime of military nature.
The provisionsof article 2 complete those contained in Protocol No. 6 to the Conventionconcerning the abolition of the death penalty and those contained in theProtocol No. 13 regarding the abolition of death penalty in all circumstances.
However, the deathpenalty continues to generate huge controversies around the world and theargument bothers mainly on the fact that, such a method of punishmentconstitutes a gross violation of the right to life.Although many countrieshave formally abolished capital punishment completely, some abolished itpartially, reserving the death penalty for only special circumstances. Becausethe treaties that banned the death penalty is still unsigned by many nations,its abolition, therefore, cannot be regarded as absolute and universal like thetorture and inhuman treatment. The death penalty is still a method ofpunishment in places like China, Saudi Arabia and some states in America.The important argument ofthe campaigners against death sentence is that, the death penalty is aviolation of the right to life and must be banned in its entirety. The believethat, the consecration of the principle according to which “everyone’sright to life is a basic value in a democratic society and that the abolitionof the death penalty is essential for the protection of this right and for thefull recognition of the inherent dignity of all human beings”However, people continueto be executed through cruel methods of hanging, beheading, and electrocution,for crimes that did not meet the category of “most serious crimes”,as stipulated by Article 6 of the International Covenant on Civil and PoliticalRights. According to information available: “3,117 people were sentenced to death in55 countries for 2016. The overall number of death sentences constitutes a significantincrease in the total for 2015 (1,998) and exceeds the record-high total thatthe organization reported in 2014 (2,466)”7.
Whendoes life begin?There are differentproposals to determine the point at which life begins. It has been difficult toreach a general agreement because of the diversity of moral and religious viewson the inception of life.For this reason, it isvital to know when life starts, as this will help in determining whendeprivation of life occurs.
However, one of the arguments is that life beginsonly when a child has been born. The other group believes that life starts frompregnancy, that is, from the womb of the child’s mother which automaticallygives the right to life to the unborn child. According to Patten Bradly: “The human embryo is a distinct new humanbeing to be treated by doctors with respect: the end of the process offertilization “marks the initiation of the life of a new individual”8.The pro-life group hasbeen clamoring for anti-abortion laws all over the world. They want abortion tobe criminalised because they regard the act as tantamount to murder. However, if it is legallyaccepted that life starts from the womb, then the position of this group ofpeople might be justified, then the use of contraceptives and abortion might beregarded as crimes.
In view of the above,John Noonan once referred to the Christendom’s opposition to abortion as: “Almost absolute value in history…Formost of these two millennia, believers of all persuasions believed that lifewas a precious gift from God and that man did not have the right to kill theinnocent child in the womb…Christianity considered abortion a crime againsthumanity and a sin against God”9.This argument furtherrelates to the issue of the right of the unborn child which was recentlydecided in a deportation case in Ireland.According to Mr.
JusticeRichard Humphreys: “The unborn child, including the unbornchild of a parent facing deportation, enjoys “significant” rights andlegal position at common law, by statute, and under the Constitution, “goingwell beyond the right to life alone…. Because an “unborn” is”clearly a child”, article 42a means all children “both beforeand after birth”10. To further support Mr JusticeHumphreys’ position, some professional scholars in their argument declare that:Thenew-born is a person with specific rights which he cannot claim, due to hisphysical and mental immaturity…These rights impose on the society obligationsand responsibilities, which health professionals and institutions of allcountries must enforce. Every new-born has the right to life with dignity11.AbortionDespite the pressure fromhuman rights bodies, there is yet, a global consensus on abortion. Somecountries permit it while some states disallow it completely.
In some countrieslike Ireland, abortion is allowed only to save the life of the pregnant motherwhile it is allowed on demand in certain countries. Even, the InternationalCovenant on Civil and Political Rights did not make a clear statement about theright of the unborn child. It only confirms in Article 6(5) that sentence ofdeath shall not be carried out on pregnant women. Although, it is aregional organisation, it is only the American Convention that expresslyprovides for the right to life of the unborn by confirming in Article 4 that”in general from the moment of conception”But in “Paton vUnited Kingdom”12, the complaint of a manto prevent his wife from having an abortion was not admissible. The Commissioncomments that: “Everyoneapplied postnatally and the life of the foetus (in the instant case, the foetuswas not yet medically viable) was linked to the life of the mother”According to the ECHR,there is no absolute right to the unborn child and in certain circumstances,abortion has been said to be in conformity with the Convention even though,there are other provisions protecting the embryo in the Council of Europe’sdocumentation.ThePositive obligation to protect lifeIn the hierarchy of humanrights, the right to life comes first because it is the most basic human rightbut if it can be deprived arbitrarily, all other rights would becomeinoperative. The fundamental nature of the right to life is clear from the factthat it cannot be derogated from.
For this reason, it becomes a positiveobligation on the state to protect the lives of the citizens within herterritory, including when such people are taken into custody whether in aprivate or public setting. Article 2 has been interpreted to include thepositive requirement to ensure that preventive measures are taken to protecteven those in custody. This was confirmed in thecase of “Osman v UK”13 in which the ECtHRoverruled the UK Court’s decision in” Hill v West Yorkshire”14 that public bodies couldnot be held responsible in negligence. The European Court declared that adetaining authority fails in its duty to protect life if the authority knows orought to have known of a risk to a prisoner’s life but did not take reasonablesteps to avert the risk. The positive obligationto protect the lives of the citizens sometime, may extend to citizens outsidethe state’s jurisdiction in term of genocide or war crimes, as the more activeresponse is expected of the state to protect people outside her jurisdiction incrucial times15.An example is the international response to the disputed November 2010 electionin Cote d’Ivoire and the protection of civilian population in Libya16. However, this type ofaction will leave with us, the question as to whether such intervention iscompatible with the concept of respect for territorial integrity or whether thediscretion to respect rights within the jurisdiction of a state can bechallenged militarily? Theright to die: Assisted Suicide or EuthanasiaThe right to die is acorollary of the right to life. Many countries of the world do not allow theircitizens the right to determine when they can end their own lives.
Differentreasons have been given for this prohibition, one of which is the sanctity oflife. In religion, the sentient life of human beings is regarded as holy andtherefore, cannot be violated. In Pretty v. United Kingdom,17Dane Pretty was sufferingfrom motor neuron disease. She was paralysed from the neck down and was fed by tube.She also had decipherable speech. Under the English law, it was not a crime tocommit suicide but is unlawful to assist another person to commit suicide18. Because the applicantwas prevented by her disease from taking her own life, she needed theassistance of her husband.
For her husband to free from any liability, sherequested the Director of Public Prosecution to agree not to prosecute herhusband. Her request was not granted, and she appealed to the Law Lords. In a unanimous judgment,the Court found Pretty’s application under articles 2, 3, 8, 9 and 14 of theEuropean Convention on Human Rights was admissible but found no violation ofthe Convention.
The conclusions includethat no right to die, whether at the hands of a third person or with theassistance of a public authority, can be derived from Article 2 of theConvention. However, Lord Hope stated that:”Theway she chooses to pass the closing moments of her life is part of the act ofliving, and she has a right to ask that, this too must be respected’This above statement wasfurther supported by the European Court of Human Rights and it has alsodeclared that: “Whenthe state intervenes in such a way as to prevent by law an individual’exercising her choice to avoid what she considers will be an undignified anddistressing end to her life’, this may constitute an interference with Article8. The refusal of consent to life-sustaining medical treatment is an exerciseof autonomy that will find a degree of protection under Article 8 ECHR.
It will not always berespected because Article 8 is not an absolute right. Hence, calls for thelegalization of assisted suicide encounter difficulties even under Article 8because of the need to take into account the rights of others in society. Inparticular, the danger that vulnerable persons, especially the elderly or thosesuffering from a terminal illness, might be bullied into ending their livesprovides a restraint upon the law’s ability to protect autonomous choices todie in this context”.In a similar case ofautonomous choice to die, Ms. B was suffering from tetraplegia and wassustained on an artificial ventilator. Although, she was fully conscious andrequested that the ventilator is switched off so that she could die.
Initially,the hospital did not accept her autonomous request to die but, Dame ElizabethButler-Sloss19,confirmed that: “Under English medical law, the right ofthe competent patient to request cessation of treatment must prevail over thenatural desire of the medical and nursing professions to try to keep heralive”This situation puts intoconflict, the principles of autonomy of life and the sanctity of life. Also inconflict, is the right to life and the right to autonomy which can be found inArticle 8 of the ECHR, the protection of the right to private life, the rightto autonomy as described by Article 8, includes the choices of how to live, aswell as when and how to die. These protections are now well established at bothdomestic and ECHR levels.There are pressures fromcertain organisations asking the state to reconsider its intervention inautonomous suicide.
They require clarity between the principle of”autonomous suicide” and the state intervention. They want theauthorities to shift attention to the human rights which bear upon the conceptof respect for physical and moral integrity. At common law, people enjoy thefreedom to act the way it pleases them even when they know that it would resultin death. Therefore, a competent adult must be allowed absolute right to refusemedical treatment if he so wishes, and be able to determine when to end his/herown life.
However, the state mustembrace the libertarian ethical principle of non-interference and allowcitizens the right to self-determination. In legal terms, according to JusticeCardozo, ‘Every human being of adult years and sound mind has a right todetermine what shall be done with his own body’20. TheDefinition of Life Life is the foundation of every man and thatautomatically confer on him the membership of the human society. The right tolife is unique and different from other fundamental rights in the listsestablished by the international instruments of human rights.
A man may bedeprived of certain rights for several years, for instance, the right toequality and non-discrimination but if he is deprived of his life, that willbring his life to an end. At this point, all his dreams and ambitions forexistence die with him. All other rights will become ineffective because theiroperation depends on life itself and he will be excluded completely from humansociety. This clearly explains why the right to life occupies the mostimportant position in the hierarchy of rights. According to the concept ofnatural law:”Manhas a set of rights inherent in human nature, outside and above the positivelaw, binding on State, rights with a superior legal nature, that are universal,the same always and forever.”21Because of thefundamental nature of the right to life, other international conventions haveemerged with additional provisions to safeguard against some specific types ofactions that could result in loss of life. For instance, the Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)and the Convention on the Prevention and Punishment of the Crime of Genocide(1948)ConclusionThe right to life iswithout a doubt, is a fundamental right but unfortunately it is not an absoluteright.
The human rights treaties allow for certain killings by the statesecurity agents, in as much as the killings are not arbitrary. However, itoften difficult to determine whether certain deprivation of life is arbitraryor not. Many of the deaths occurred because of the negligence or excessive useof force by the state security forces. The Courts have found them liable onseveral occasions, a situation which has built distrust among the citizens.
Therefore,the use of lethal force by the agents of the state must be strictly regulated toavoid unnecessary loss of lives. Force must be used in a proportionate way in thedischarge of the duty to maintain law and order.Apparently, no societycan flourish where the right to life of the citizens cannot be adequatelyguaranteed. The main duty of the security forces is to protect life and not todeprive it.In view of the autonomouschoice to die, taking Pretty’s case for instance, I am of the view that the lawmust soft-pedal by treating with respect and sympathy, an elderly patient witha terminal disease who in the last days of horrible and painful struggle wishesto avoid more needless suffering and indignity. The elderly person does notextinguish the hope of a bright future, but rather avoids the last painful andundignified moments of a life already lived. However, it will be worthy toallow such an elderly patient to die honourably and peacefully. More so, theright to life as a corollary of the right to die, must entitle an individual todetermine what happens to his or her own body, especially when such persondesires a dignified death.
1 Secondworld war, also known as world war ll, was a global war that lasted from 1939to 19452The charter of the United Nations was signed on 26 June 1945, in San Francisco afterthe conclusion of the United Nations conference on international organisation,and came into force on 24 October 19453European Convention on Human Rights4Armani Da Silva v United Kingdom Application No 5878/085See, ‘Ruling on Verdict and Inquisition’ in Coroner’s Inquest into the Death ofJean Charles de Menezes, available at:webarchive.nationalarchives.gov.uk/20090317235546/http://www.stockwellinquest.org.uk6ECtHR 27 September 1995, Appl.
No 18984/91, also 21 EHRR 977AmnestyInternational: The Death penalty in 2016: Facts and figures.8 Patten,Bradley, “Human Embryology”, Philadelphia: The Blakiston Company,1947, p. 769 JohnNoonan was a Catholic legal scholar and later federal appellate court judge10AHigh Court Judge in the Republic Ireland11Hercília Guimarães, Gustavo Rocha, Carlo Bellieni & Giuseppe Buonocore(2012), Rights of the newborn and end-of-life decisions, The Journal ofMaternal-Fetal & Neonatal Medicine, 25:sup1, 76-78, DOI:10.3109/14767058.2012.
665240. To link to this article:https://doi.org/10.
3109/14767058.2012.66524012 EHRR13 May 1980, Appl. No 8416/78 1981313 ECtHR28 October, Appl. No 87/1997/871/1083, also (1998)14 19982 WLR 1049 House of Lords15 Similarstatements appeared in Evans and Sahnoun’s report of the internationalcommission on intervention and state sovereignty in 200116 Considerthe text of SC Resolution 1974 201117ECtHR 29 July 2002, Appl.
No 2346/0218 Section2(1)of the suicide Act 196119 Thethen President of the Family Division of the High Court20 Schloendorffv. Society of New York Hospital (1914) 211 NY 125, at 12821 Pavel,Nicolae, Academic Journal Article, The Right to Life as a Supreme Value andGuaranteeing the Right to Life.