11 International and Regional Instruments on Right to Life

Prof. Abhishek Sudhir

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1. Learning Outcomes

  • To give students an overview of the different international and regional declarations, conventions and charters guaranteeing the right to life;
  • By the end of the chapter students will have an understanding of international human rights law on the right to life.

2. Introduction (Voice Over)

Various international instruments passed under the aegis of the United Nations recognise an individual’s right to life. These instruments help in protecting the rights of an individual by providing certain minimum safeguards which are to be adhered to even if State (domestic) law does not provide for the same. Further, the repeated recognition of the right to life in international instruments can lead one to conclude that the right is now a part of customary international human rights law and must be respected even by States that are not a party to these instruments.

3. International Instruments

3.1 International Covenant on Civil and Political Rights (1CCPR) (Articles 6 and 4)

1. International Covenant on Civil and Political Rights (1966) (Articles 6 and 4):

This is the main international treaty on civil and political rights, also known as ICCPR and is very specific about the right to life and the death penalty:

  1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
  2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
  3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
  4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
  5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
  6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”

Article 4 further asserts that states are not able to derogate from the article 6 even in times of a public emergency.

3.2 Human Rights Committee, General Comment on the Right to Life

“General Comment” is comments or recommendations adopted by any of the bodies established under various UN treaties for the promotion and protection of human rights.

The right to life was considered by the drafters of the ICCPR to be ‘the most fundamental of all rights’. This view was reflected by the Human Rights Committee, which has stated that the right to life is the ‘supreme right from which no derogation is permitted even in time of public emergency’. The Committee has further noted that the right to life is ‘basic to all human rights’.

The right to life is primarily concerned with preventing arbitrary deprivations of life. The Human Rights Committee has emphasised that ‘the protection against arbitrary deprivation of life … is of paramount importance’. The term ‘arbitrarily’ is taken to mean not only ‘illegally’ but also ‘unjustly’, and includes a requirement to satisfy conditions of necessity and proportionality. The circumstances allowing for the deprivation of life must therefore be clearly established by law, capable of being articulated with certainty, and subject to due process. Moreover, they must be substantively just and comply with the principles of necessity and proportionality.

In addition to the obligation not to deprive life arbitrarily, the right to life also imposes a positive obligation to protect life. The drafting history of Article 6(1) of the ICCPR indicates that a strong emphasis was placed on the duty of States Parties (countries that have ratified the treaty) to protect life. The drafters considered that, as well as protecting individuals from unwarranted actions by the State, it was also necessary for the State to protect individuals from unwarranted actions by private persons. The Human Rights Committee has confirmed that protection of the right to life ‘requires that States adopt positive measures’. The scope of the positive obligation to protect life is discussed below.

The right to life has also been interpreted to impose a duty on the State to investigate deaths occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have been (or may have been) breached.

Given its fundamental nature, the Human Rights Committee has stated that the right to life ‘should not be interpreted narrowly’, noting that the right ‘cannot be properly understood in a restrictive manner’. Thus, for example, the Committee has viewed issues such as homelessness, infant mortality, and life expectancy as falling within its scope. It has also specified that ‘it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy; especially in adopting measures to eliminate malnutrition and epidemics’.

A similarly broad interpretation has been given by some national courts. For example, the Indian courts have found that the right to life extends to a right to a livelihood, a right to the basic necessities of life such as adequate nutrition, clothing, reading facilities, and the rights to shelter and education. However, other national courts have displayed a more cautious approach, particularly where there are social policy and budgetary implications.

3.3 Rome Statute of the International Criminal Court (1998) (Articles 6 and Article 7)

Under the Rome Statute of the International Criminal Court (ICC), killing of persons either by direct murder or by inflicting conditions which bring about their death e.g. deprivation of food, water and medication come under the jurisdiction of the court if they amount to: genocide which means such acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (article 6); crimes against humanity if such acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (article 7); war crimes if they constitute grave breaches of the Geneva Conventions of 12 August 1949, namely acts against persons or property protected under the provisions of the relevant Geneva Convention.

Most significantly, the statute of the ICC states that the death penalty is excluded from punishments the court is permitted to impose, despite the fact it has jurisdiction over very serious crimes.

3.4 United Nations Treaties and Protocols

United Nations treaties and protocols relating to specific categories of persons also serve to protect the right to life.

The Geneva Conventions of 1949 governing the laws of war uphold the right to life of civilians and certain types of combatants, those who are injured or have laid down their arms, at times of war.

Article 33 of the Convention Relating to the Status of Refugees (1951) is relevant as it prohibits the forced return (the principle of non-refoulement) of persons facing a threat to their lives in their home country.

The International Convention on the Elimination of All Forms of Racial Discrimination (1965) is the most comprehensive treaty concerned with the rights of racial and ethnic minorities. Violations concerning the right to life and in particular the discriminatory and disproportionate use of the death penalty as far as ethnic and racial minorities are concerned have been raised with the Committee on the Elimination of Racial Discrimination which oversees the implementation of the convention.

Convention on the Rights of the Child (1989) (Article 37) prohibits the use of the death penalty for persons under 18 at the time of the crime. In addition, a number of other articles are concerned with ensuring the right of survival through the provision of essential food, water, health care etc. necessary for life.

The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (1989) urges states to take all necessary measures to abolish the death penalty and stipulates that no reservation is allowed except for the application of the death penalty for most serious crimes of a military nature committed during wartime.

The Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984) elaborates further on the circumstances under which the death penalty can be imposed and the procedures to be followed.

The Siracusa Princples developed by the UN Sub-commission on the prevention of discrimination and protection of minorities in 1984 assert that no state party shall even in time of emergency threatening the life of the nation, derogate from a number of key guarantees which include the right to life.

4. Regional Instruments

4.1 European Convention on Human Rights (ECHR)

Convention for the Protection of Human Rights and Fundamental Freedoms (1949) commonly known as the European Convention on Human Rights (ECHR), protects the right to life and stipulates circumstances under which deprivation of life shall not be regarded as contravening this article where 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 effect 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 (Article 2).

It also does not allow derogation from this principle even in times of emergency except for deaths resulting from lawful acts of war (Article 15).

4.2 American Convention on Human Rights

Established in 1959, the Inter-American Commission on Human Rights (IACHR) is the principal organ of the Organization of American States (OAS) charged with promoting the observance and protection of human rights and to act as a consultative organ of the OAS in human rights matters (Charter of the OAS, Article 106). The commission is a seven member body based in Washington DC. Each member is elected by the OAS General Assembly.

One of the Commission’s functions is to receive and take action on petitions and other communications lodged by any person or group of persons or any non-governmental entity legally recognized in one or more of the member states of the Organization, alleging violations of human rights.

The American Convention on Human Rights protects the right to life and restricts the situations in which the death penalty can be used. Countries that have not abolished the death penalty may impose it only for “the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.” It also stipulated that the death penalty shall not be re-established in states that have abolished it; it shall not be administered for political offenses nor imposed on persons who, at the time the crime, were under 18 years of age or over 70 years of age, nor shall it be applied to pregnant women.

There is also the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990). Any nation that is a party to the American Convention on Human Rights may sign this Protocol. Those states that sign the Protocol agree to eliminate the death penalty, although they may declare, upon signing, the intent to retain the death penalty in wartime for serious military crimes, in keeping with international law. In this case, the state is obligated to inform the OAS Secretary General of its national legislation regarding the use of the death penalty during times of war.

4.4 Domestic Human Rights’ Acts

Human Rights Act, 1998 (United Kingdom)

Article 2

Right to life

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.

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:

  •  In defence of any person from unlawful violence;
  •  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.

Human Rights Act, 2004 (Australian Capital Territory)

Section 9 of the Human Right Act

Right to life:

  1. Everyone has the right to life. In particular, no-one may be arbitrarily deprived of life.
  2. This section applies to a person from the time of birth.

Canadian Charter of Rights and Freedoms

Section 7

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

5. Conclusion

Thus, the right to life gets pride of place in the pantheon of fundamental human rights. It has been recognised, albeit with certain limitations, through international instruments and regional instruments across continents and cultures. It can thus be concluded that the right forms the lynchpin of a vibrant democratic society.

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Reference

  • Alice Edwards, The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, United Nations High Commissioner for Refugees.
  • Luminita Dragne and Cristina Teodora Balaceanu, The Right to Life – A Fundamental Human Right, Social Economic Debates, Vol. 2, No. 2, December 2013.
  • Antonio Cassese, The Human Dimension of International Law: Selected Papers, Oxford University Press (2008)
  • Secretariat of the Inter-American Court of Human Rights San Jose, Basic Documents Pertaining to Human Rights in the Inter-American System, Available at: http://www.corteidh.or.cr/docs/libros/docsbas2012_eng.pdf
  • Amnesty International, Death Penalty in International Law, Available at: http://www.amnesty.org/en/death-penalty/international-law
  • Council of Europe, The European Convention on Human Rights and its Five Protocols, Available at: http://www.hri.org/docs/ECHR50.html
  • International Justice Resource Centre, Asylum and Rights of Refugees, Available at: http://www.ijrcenter.org/refugee-law/