The concepts of human
rights and liberties came up particularly because of the experience of the
Second World War1.
This is evident from the preamble of the UN Charter2;

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

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 ECHR3 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
arrest4. 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”5. 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”6, 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)”7.

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”8.

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”9.

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”10.  

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 dignity11.

 

 

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”12, 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”13 in which the ECtHR
overruled the UK Court’s decision in” Hill v West Yorkshire”14 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 times15.
An example is the international response to the disputed November 2010 election
in Cote d’Ivoire and the protection of civilian population in Libya16.

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,17Dane 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 suicide18. 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-Sloss19,
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’20.

 

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.”21

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
desires a dignified death.

 

1 Second
world war, also called world war ll, was a global war between 1939 and 1945

2
The charter of the United Nations was signed in San Francisco after the conclusion
of the United Nations conference on international organisation on 26 June 1945.
It came into force on 24 October 1945

3
European Convention on Human Rights

4
Armani Da Silva v United Kingdom Application No 5878/08

5
See ‘Ruling on Verdict and Inquisition’ in Coroner’s Inquest into the Death of
Jean Charles de Menezes, available at:
webarchive.nationalarchives.gov.uk/20090317235546/http://www.stockwellinquest.org.uk

6
ECtHR 27 September 1995, Appl. No 18984/91, also 21 EHRR 97

7Amnesty
International: The Death penalty in 2016, Facts and figures.

8 Patten,
Bradley, Human Embryology, Philadelphia, The Blakiston Company, 1947, p. 76

9 John
Noonan was a Catholic legal scholar and later federal appellate court judge

10A
High Court Judge in the Republic Ireland

11
Hercília Guimarães, Gustavo Rocha, Carlo Bellieni & Giuseppe Buonocore
(2012), Rights of the newborn and end-of-life decisions, The Journal of
Maternal-Fetal & Neonatal Medicine, 25:sup1, 76-78, DOI:
10.3109/14767058.2012.665240. To link to this article:
https://doi.org/10.3109/14767058.2012.665240

12 EHRR
13 May 1980, Appl. No 8416/78 19813

13 ECtHR
28 October, Appl. No 87/1997/871/1083, also (1998)

14 1998
2 WLR 1049 House of Lords

15 Similar
to statements made in Evans and Sahnoun’s report of the international
commission on intervention and state sovereignty in 2001

16 Consider
the text of SC Resolution 1974 2011

17
ECtHR 29 July 2002, Appl. No 2346/02

18 Section2(1)
of the suicide Act 1961

19 The
then President of the Family Division of the High Court

20 Schloendorff
v. Society of New York Hospital (1914) 211 NY 125, at 128

21 Pavel,
Nicolae, Academic Journal Article, The Right to Life as a Supreme Value and
Guaranteeing the Right to Life.