THE RIGHT TO LIFE The concepts of human

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THE RIGHT TO LIFE

The concepts of human rights and liberties came up
particularly because of the experience of the Second World War. This can be
seen from the preamble of the UN Charter;

 “War, which
twice in our lifetime has brought untold hardship to mankind”.

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And because of the huge atrocities committed at that period,
it became crucial for a great value to be attached to human life. Since then,
both the international and the regional governments have been making various
laws to protect human rights.

Although, different human rights are specifically enumerated
in the international documents of human rights. Among these rights, the right
to life is the most fundamental. The pre-existence of life itself,
consequently, gave birth to all other rights and as a matter of fact, all other
rights are created to add values to the right to life.

Among the various international and humanitarian laws
protecting the right to life is the Article 3 of the Universal Declaration of
Human Rights which states that:

 ‘Everyone has the
right to life, liberty, and security of person’

The protection of this right is also enshrined in Article 6
of the International Covenant on Civil and Political Rights”. Article 6 of
the Convention on the Rights of the Child similarly protects the right to life.

However, this essay will examine the protection of life, the
state obligation to provide preventive measures against arbitrariness and the
violations of the right to life under different treaties, but, more attention
will be given to the European Convention on Human Rights.

Article 2 of the European Convention on Human Rights states
that:

 “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”.

The protection under these major treaties is very similar in
the sense that, they all emphasize that, no one life may be arbitrarily
deprived. The treaties not only recognise the positive obligation to refrain
from unlawful deprivation of life but also, the obligation on the authorities
to take steps to prevent avoidable loss of life. However, only the European
Convention on human rights gives further guidance as per the conditions
regulating the use of force.

The ECHR  explains
further that:

 “Deprivation of
life shall not be regarded as inflicted in contravention of the Article when 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”.

However, both international and regional laws recognise the
right to life as the most substantive right. All the major treaties refer to it
as a fundamental right which is non-derogable, yet the ECHR considers the
lawful killings under international humanitarian agreements as exemptions to
this non-derogability to the right to life and it does not regard the use of
lethal force as “arbitrary” 

However, for life not to be at risk, the state must fulfil
its duty to provide adequate protection. The use of lethal force must be
strictly regulated by law, to the extent that it cannot be used by the state
agents unless it is absolutely necessary. The use of 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 legal arrest . He was on his way to work
when, 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 by
members of the specialist firearms unit of the British Police Service.

Jean Charles de Menezes was 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 was said to be within the limits of
“necessary force” . This pronouncement, nevertheless, is an
indication of the level at which necessary force is set in the UK, as one can
only expect, very few positive results when people are shot in the back of the
head.

Also in “McCann & Others v UK” , a case
involving three persons shot in Gibraltar by members of the Special Air
Service, the Court concluded that there had been a violation of Article 2
because the operation could have been executed without the need to kill persons
suspected of planting a bomb in Gibraltar. In its Grand Chamber judgment, the
Court commented that Article 2 ranks as one of the most fundamental provisions
in the ECHR.

The ECtHR has also emphasized the importance of the right to
life within the framework of the ECHR that:

 “The use of the
term “absolutely necessary” in Article 2:2 indicates that a stricter
and more compelling test of necessity must be employed from that normally
applicable when determining whether State action is ‘necessary in a democratic
society’ under paragraph 2 of Articles 8 to 11 of the Convention. In
particular, the force used must be strictly proportionate to the achievement of
the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2.’32”

The same Article 2 of the convention, 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 the Human Rights Act 1998 makes it
“unlawful for a public authority to act in a way which is incompatible
with a convention right”. There is a similar provision in Ireland where
section 3 of the European Convention on Human Rights Act 2003 states that:

 “Subject to any
statutory provision (other than this Act) or rule of law, every organ of the
State shall perform its functions in a manner compatible with the State’s
obligations under the Convention provisions.”

Death Penalty

All the major treaties state that life is non-derogable, but
the ECHR confirms: “Certain exceptional cases when the occurrence of death
is not a violation of this right. For instance, the state reserves the right to
use death sentence in time of war for the most serious military crime of
military nature. The provisions of article 2 complete those contained in
Protocol No. 6 to the Convention concerning the abolition of the death penalty
and those contained in the Protocol No. 13 regarding the abolition of death
penalty in all circumstances.  

However, the death penalty continues to generate huge controversies
around the world and the argument bothers mainly on the fact that, such a
method of punishment constitutes a gross violation of the right to life.

Although many countries have formally abolished capital
punishment completely, some abolished it partially, reserving the death penalty
for only special circumstances. Because the treaties that banned the death
penalty is still unsigned by many nations, its abolition, therefore, cannot be
regarded as absolute and universal like the torture and inhuman treatment. The
death penalty is still a method of punishment in places like China, Saudi
Arabia and some states in America.

The important argument of the campaigners against death
sentence is that, the death penalty is a violation of the right to life and
must be banned in its entirety. The believe that, the consecration of the
principle according to which “everyone’s right to life is a basic value in
a democratic society and that the abolition of the death penalty is essential
for the protection of this right and for the full recognition of the inherent
dignity of all human beings”

However, people continue to 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 Political Rights. According to
information available:

 “3,117 people
were sentenced to death in 55 countries for 2016. The overall number of death
sentences constitutes a significant increase in the total for 2015 (1,998) and
exceeds the record-high total that the organization reported in 2014
(2,466)” .

When does life begin?

There are different proposals to determine the point at
which life begins. It has been difficult to reach a general agreement because
of the diversity of moral and religious views on the inception of life.

For this reason, it is vital to know when life starts, as
this will help in determining when deprivation of life occurs. However, one of
the arguments is that life begins only when a child has been born. The other
group believes that life starts from pregnancy, that is, from the womb of the
child’s mother which automatically gives the right to life to the unborn child.
According to Patten Bradly:

 “The human
embryo is a distinct new human being to be treated by doctors with respect: the
end of the process of fertilization “marks the initiation of the life of a
new individual” .

The pro-life group has been clamoring for anti-abortion laws
all over the world. They want abortion to be criminalised because they regard
the act as tantamount to murder.

However, if it is legally accepted that life starts from the
womb, then the position of this group of people might be justified, then the
use of contraceptives and abortion might be regarded as crimes.

In view of the above, John Noonan once referred to the
Christendom’s opposition to abortion as:

 “Almost absolute
value in history…For most of these two millennia, believers of all persuasions
believed that life was a precious gift from God and that man did not have the
right to kill the innocent child in the womb…Christianity considered abortion a
crime against humanity and a sin against God” .

This argument further relates to the issue of the right of
the unborn child which was recently decided in a deportation case in Ireland.

According to Mr. Justice Richard Humphreys:

 “The unborn
child, including the unborn child of a parent facing deportation, enjoys
“significant” rights and legal position at common law, by statute,
and under the Constitution, “going well beyond the right to life alone….
Because an “unborn” is “clearly a child”, article 42a means
all children “both before and after birth” . 

To further support Mr Justice Humphreys’ position, some
professional scholars in their argument declare that:

The new-born is a person with specific rights which he
cannot claim, due to his physical and mental immaturity…These rights impose on
the society obligations and responsibilities, which health professionals and
institutions of all countries must enforce. Every new-born has the right to
life with dignity .

 

 

Abortion

Despite the pressure from human rights bodies, there is yet,
a global consensus on abortion. Some countries permit it while some states
disallow it completely. In some countries like Ireland, abortion is allowed
only to save the life of the pregnant mother while it is allowed on demand in
certain countries. Even, the International Covenant on Civil and Political
Rights did not make a clear statement about the right of the unborn child. It
only confirms in Article 6(5) that sentence of death shall not be carried out
on pregnant women.

Although, it is a regional organisation, it is only the
American Convention that expressly provides for the right to life of the unborn
by confirming in Article 4 that “in general from the moment of
conception”

But in “Paton v United Kingdom” , the complaint of
a man to prevent his wife from having an abortion was not admissible. The
Commission comments that:

“Everyone applied postnatally and the life of the
foetus (in the instant case, the foetus was 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’s documentation.

The Positive obligation to protect life

In the hierarchy of human rights, the right to life comes
first because it is the most basic human right but if it can be deprived
arbitrarily, all other rights would become inoperative. The fundamental nature
of the right to life is clear from the fact that it cannot be derogated from.
For this reason, it becomes a positive obligation on the state to protect the
lives of the citizens within her territory, including when such people are
taken into custody whether in a private or public setting. Article 2 has been
interpreted to include the positive requirement to ensure that preventive
measures are taken to protect even those in custody.

This was confirmed in the case of “Osman v
UK”  in which the ECtHR overruled
the UK Court’s decision in” Hill v West Yorkshire”  that public bodies could not be held
responsible in negligence. The European Court declared that a detaining
authority fails in its duty to protect life if the authority knows or ought to
have known of a risk to a prisoner’s life but did not take reasonable steps to
avert the risk.

The positive obligation to protect the lives of the citizens
sometime, may extend to citizens outside the state’s jurisdiction in term of
genocide or war crimes, as the more active response is expected of the state to
protect people outside her jurisdiction in crucial times . An example is the
international response to the disputed November 2010 election in Cote d’Ivoire
and the protection of civilian population in Libya .

However, this type of action will leave with us, the
question as to whether such intervention is compatible with the concept of
respect for territorial integrity or whether the discretion to respect rights
within the jurisdiction of a state can be challenged militarily?

The right to die: Assisted Suicide or Euthanasia

The right to die is a corollary of the right to life. Many
countries of the world do not allow their citizens the right to determine when
they can end their own lives. Different reasons have been given for this
prohibition, one of which is the sanctity of life. In religion, the sentient
life of human beings is regarded as holy and therefore, cannot be violated.

 In Pretty v. United
Kingdom, Dane Pretty was suffering from 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 to commit suicide but is unlawful to assist
another person to commit suicide . Because the applicant was prevented by her
disease from taking her own life, she needed the assistance of her husband. For
her husband to free from any liability, she requested the Director of Public
Prosecution to agree not to prosecute her husband. 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 the European Convention on
Human Rights was admissible but found no violation of the Convention.

The conclusions include that no right to die, whether at the
hands of a third person or with the assistance of a public authority, can be
derived from Article 2 of the Convention. However, Lord Hope stated that:

“The way she chooses to pass the closing moments of her
life is part of the act of living, and she has a right to ask that, this too
must be respected’

This above statement was further supported by the European
Court of Human Rights and it has also declared that:

“When the 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 and distressing end to her life’, this may constitute an
interference with Article 8. The refusal of consent to life-sustaining medical
treatment is an exercise of autonomy that will find a degree of protection
under Article 8 ECHR.

It will not always be respected because Article 8 is not an
absolute right. Hence, calls for the legalization of assisted suicide encounter
difficulties even under Article 8 because of the need to take into account the
rights of others in society. In particular, the danger that vulnerable persons,
especially the elderly or those suffering from a terminal illness, might be
bullied into ending their lives provides a restraint upon the law’s ability to
protect autonomous choices to die in this context”.

In a similar case of autonomous choice to die, Ms. B was
suffering from tetraplegia and was sustained on an artificial ventilator.
Although, she was fully conscious and requested that the ventilator is switched
off so that she could die. Initially, the hospital did not accept her
autonomous request to die but, Dame Elizabeth Butler-Sloss , confirmed that:

 “Under English
medical law, the right of the competent patient to request cessation of
treatment must prevail over the natural desire of the medical and nursing
professions to try to keep her alive”

This situation puts into conflict, the principles of
autonomy of life and the sanctity of life. Also in conflict, is the right to
life and the right to autonomy which can be found in Article 8 of the ECHR, the
protection of the right to private life, the right to autonomy as described by
Article 8, includes the choices of how to live, as well as when and how to die.
These protections are now well established at both domestic and ECHR levels.

There are pressures from certain organisations asking the
state to reconsider its intervention in autonomous suicide. They require
clarity between the principle of “autonomous suicide” and the state
intervention. They want the authorities to shift attention to the human rights
which bear upon the concept of respect for physical and moral integrity. At
common law, people enjoy the freedom to act the way it pleases them even when
they know that it would result in death. Therefore, a competent adult must be
allowed absolute right to refuse medical treatment if he so wishes, and be able
to determine when to end his/her own life.

However, the state must embrace the libertarian ethical
principle of non-interference and allow citizens the right to
self-determination. In legal terms, according to Justice Cardozo, ‘Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body’ .

 

The Definition of Life

 Life is the
foundation of every man and that automatically confer on him the membership of
the human society. The right to life is unique and different from other
fundamental rights in the lists established by the international instruments of
human rights. A man may be deprived of certain rights for several years, for
instance, the right to equality and non-discrimination but if he is deprived of
his life, that will bring his life to an end. At this point, all his dreams and
ambitions for existence die with him. All other rights will become ineffective
because their operation depends on life itself and he will be excluded
completely from human society. This clearly explains why the right to life
occupies the most important position in the hierarchy of rights. According to
the concept of natural law:

“Man has a set of rights inherent in human nature,
outside and above the positive law, binding on State, rights with a superior
legal nature, that are universal, the same always and forever.”

Because of the fundamental nature of the right to life,
other international conventions have emerged with additional provisions to
safeguard against some specific types of actions that could result in loss of
life. For instance, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984) and the Convention on the Prevention
and Punishment of the Crime of Genocide (1948)

Conclusion

The right to life is without a doubt, is a fundamental right
but unfortunately it is not an absolute right. The human rights treaties allow
for certain killings by the state security agents, in as much as the killings
are not arbitrary. However, it often difficult to determine whether certain
deprivation of life is arbitrary or not. Many of the deaths occurred because of
the negligence or excessive use of force by the state security forces. The
Courts have found them liable on several 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 to avoid unnecessary loss of lives.
Force must be used in a proportionate way in the discharge of the duty to
maintain law and order.

Apparently, no society can flourish where the right to life
of the citizens cannot be adequately guaranteed. The main duty of the security
forces is to protect life and not to deprive it.

In view of the autonomous choice to die, taking
Pretty’s case for instance, I am of the view that the law must soft-pedal by
treating with respect and sympathy, an elderly patient with a terminal disease
who in the last days of horrible and painful struggle wishes to avoid more
needless suffering and indignity. The elderly person does not extinguish the
hope of a bright future, but rather avoids the last painful and undignified
moments of a life already lived. However, it will be worthy to allow such an
elderly patient to die honourably and peacefully. More so, the right to life as
a corollary of the right to die, must entitle an individual to determine what
happens to his or her own body, especially when such person

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