Integrity of the person: The right to life Flashcards
What is the right to life?
A right to not be arbitrarily deprived of one’s life. Protection against killings by security forces. Lethal force must be both necessary and proportionate vis-a-vis the prevention of any vent that is (directly or indirectly) life-threatening. Warfare, law-enforcement, death penalty.
When does life beginn (according to ACHR)? Incremental right
ACHR (Art. 4): At conception –> What about VTP? Incremental right: making small, regular changes over time, rather than making one big change.
International customary law (us cogens?)
Non-derogable (where derogation is permitted).
Protection against the death penalty? Limitations
Substantive limitations –> restrictions on the core rights or elements of a legal claim (the most serious crimes)
Procedural limitations –> relate to the rules and timeframes governing how a claim can be brought to court (resulting from a fair trial)
Personal limitations –> restrictions based on the characteristics of the individual bringing the claim, like age or mental capacity, that may affect their ability to pursue legal action.
(may not be imposed on children)
The case of judge v. Canada (HRC 1998/2003) - The facts
Mr. Judge is sentenced to death in the US; flees to Canada. Sentenced to 10 years’ imprisonment for robbery in Vancouver; appeal dismissed. Deportation ordered (to be applied at the end of the 10-year sentence. Asks to be extradited instead of deported - denied. Files a case with the HRC (declared admissible).
The case of judge v. Canada (HRC 1998/2003) - The complaint
Given the certain death sentence, keeping him in prison for 10 years (with a deportation ordered) amounts to CIDTP (a violation of Art. 7 - anyone accused of a violation must be treated fairly). Canada’s deportation (to a country where he will be executed) is a violation of Art. 6.
The case of judge v. Canada (HRC 1998/2003) - The defence
Mr. Judge could have asked to be deported before the end of his sentence, or to be transferred to complete his 10-year sentence in the US: He did neither. The “death row phenomenon” does not apply here because he was no on death row in Canada; moreover, the delay in the execution was created by Mr. Judge. It is not a violation of the right to life (Art. 6) to deport someone to a State where Art. 6 will be respected (including where the death penalty will be applied) –> Kindler v. Canada.
The case of judge v. Canada (HRC 1998/2003) - The Committee’s view
Art. 7 (CCIDTP): No “death row phenomenon” can arise in an abolitionist State. Art. 6 (right to life): an abolitionist State can no longer deport or extradite a person to a country where the risk the application of the death penalty. “The Covenant should be interpreted as a living instrument” –> does not equal Kindler v. Canada. “The meaning of Covenant rights should be interpreted by reference to the time of examination and not be reference to the time the alleged violation took place.” Canada violated art. 6 of the ICCPR. Appropriate remedy: Canada should do everything it can to prevent the US from applying the death penalty to Mr. Judge.
The right to life as an obligation
Primarily a negative obligation. Positive obligation (of means): Effective investigation, prosecution, prevention from death by third parties.
