24 October 2008: The right to life Maria Lundberg, NCHR1 HUMR5120 Substantive Rights The Right to Life

24 October 2008: The right to life Maria Lundberg, NCHR2 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, NCHR3 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, NCHR4 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 ), 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, NCHR5 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, NCHR6 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” 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.”

24 October 2008: The right to life Maria Lundberg, NCHR7 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, NCHR8 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 /90), Decision [Commission] of 30 November 1994; Boso v. Italy (App /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 /00),Judgment of the Grand Chamber of 8July 2004

24 October 2008: The right to life Maria Lundberg, NCHR9 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, NCHR10 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, NCHR11 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, NCHR12 State obligations Safeguard the right to life: ICCPR: States shall prevent 1.wars, 2.acts of genocide, defintions –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) 3.and other acts of mass violence causing arbitrary loss of life, CCPR Gen Comment 6, The right to life (article 6), para.2 4.“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, NCHR13 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, NCHR14 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 /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 /939, Judgment 2 September 1998, paras ) 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 /94), Judgment of 4 may 2001, Cf McCann case

24 October 2008: The right to life Maria Lundberg, NCHR15 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)

24 October 2008: The right to life Maria Lundberg, NCHR16 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 /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, NCHR17 Cases to prepare for week 46