Right To Life Flashcards
What is the nature of this right?
Article 4(2) of the ICCPR states that the right to life in non-derogable and never suspended in a time of emergency / threat to the life of the state
What does article 6(1) of the ICCPR say about the right to life?
That it is inherent in all
What is one of the main issues?
- Who does it apply to?
- Who does it NOT apply to - even though it is non-derogable are there exceptions?
- What do we mean by the right to life?
Where is the right contained - ECHR
Article 2
Where is the right contained - ICCPR
Article 6
There is a trend towards the abolition of the death penalty to only the most serious of crimes
Where is the right contained - UDHR
Article 3 - limits to those who’re born
What does the right contain obligation wise? - negative obligation
- Negative obligation: “not to take life without justification” - issue: what will justify taking a life of another?
Positive obligation
Positive obligation: obligation on the state to take measures to protect the right to life - issue with this is that there is the obligation on the state which has no barriers - this can extend to other rights like the right to poverty like where there is no food or water, and the right to the
Procedural obligation
Procedural obligation: is there an obligation for the state to undertake “effective, independent, public investigations where a substantive obligation has been breached”
Valesquez Rodriguez v Honduras
35 year old manfredo was kidnapped in broad daylight outside a downtown movie theatre and he was the Secretary General for the student union and a political activist - he was targeted by the Honduran security forces who frequently targeted community leaders because they were perceived as threats to the regime
Held: the government can be found liable for disappearances and unlawful killings once it is proven that the individuals were last seen in the custody of government agents and there is an obligation on the state to provide a full investigation
Street children case 1999
Inter-American court of Human Rights
> abduction, detention and murder of children and the failure of the state to deal appropriately with the said violation and provide the families with access to justice
Nachova v Bulgaria
ECtHR
> recourse to potentially deadly force cannot be considered necessary where it is known that the person arrested poses no threat to life or limb and isn’t suspected of committing a violent offence
McKann and Others v UK
ECtHR
- British security personnel killed an IRA suspect who they believed had a bomb ready to detonate in Galbrilatar which he didn’t
- use the necessity and proportionality where it was held not necessary and proportionate BUT compare with the John Charles Mendez case
When does the positive obligation begin
Osman case that we viewed in tort
- from a human rights perspective there was no duty on the police to prevent the killing
- but where would you draw the line, how far would the police or authorities have to go to, in order to protect the people in question
- the difficulties with the modern day policing and the changing nature of human behaviour alongside the use of resources means that the right to protect an individuals right to life by public authorities has to be interpreted to what is possible and proportionate
Issue - terminating the unborn and when does life begin
- medical life of the embryo
- medical problems of the embryo
- rape
- a women’s choice
- a women’s right to health
A, B, C v Ireland 2011
The right to private and family life extending to unborn foetus’ was refused to be judged on by the European ct HR
Queenan v Canada
The Human Rights Committee said a claim could not be brought on behalf of the feotus against the abortion
ECommHR Paton v UK
“Everyone” in article 2 of the ECHR does not extend to a feotus - they are connected with the mother and cannot be isolated from the life of the woman
= the right to life did not outweigh the interests of the pregnant woman
Vo v France
The unborn child is not regarded as a person directly protected by article 2 on the ECHR - if the unborn foetuses did have a right to life then it would be limited by the mother’s rights and interests
Article 3 UDHR
Specifically limits the right to life to those who are born
ICCPR did what?
Rejected the idea that the right to life attaches before birth and the HRC has actually expressed concerns for the criminalisation on abortion
When do the American Convention of Human rights consider the right to life to begin?
At the conception
HRC general comment 28
Laws that require doctors to report women who have had an abortion have violated the right to life and prohibition of torture
Mellet v Ireland
Irish law concerning abortions which could only take place once it was established that the woman’s life was at threat or there was a real risk of suicide
- woman flew from Ireland to the Uk to have an abortion with dying feotus, no family and had to fly back not fully recovered
- Ireland were in breach of ICCPR on the prevention of torture, inhumane or degrading treatment
Does the right to life extend to a right to die?
No - the European court on human rights has been really tight on the issue of euthanasia
Pretty v the U.K.
ECtHR
- Diane pretty was suffering from motor neurone disease and was paralysed from the neck down had little speech ability and was fed from a tube, it is not a crime to commit suicide in English law, but she was prevented by her disease from taking her own life and asked the court to omit liability if her husband killed her
- court denied her request - article 2 of the ECHR doesn’t comprehend a right to die
Issues with euthanasia
Refusing euthanasia could be viewed as inflicting torture, inhuman or degrading treatment
- what is the difference between this and doctors for example who end people’s suffering on life support machines
- problematic because if you let someone die through a third party there is a very fine line between the vulnerable and murder
- it has scope to be very problematic for the state to protect the right to life if people could justifiably kill
- there are states however that do allow you to be euthanised
