Human Rights – C. Adoch.

Introductory Lecture – 8th February, 2022.

This is a subject of international law. It introduces learners to the nature of human rights, their origin,
substantive rights, etc. Remember that international law governs the relationship between states and
the primary subject of international human rights law is the state. This system of law governs the
relationship between the state and the people within its jurisdiction (not citizens). Most instruments
try to regulate the conduct of the state and its citizens. We will focus on the principle of state
obligations and responsibility.

 History of Human Rights

 The United Nations and Implementation/Enforcement of Rights
 State Obligations in regard to respective human rights
What is a human right?
The concept of human rights law flows from the concept of human dignity and worth. It is founded on
the principle that human beings are inherently endowed with human dignity – that a human being has
value and worth because they are a human being. Rights are entitlements that we are endowed with by
virtue of the fact that we are human. Human dignity is the normative basis of rights.
International Human Rights Conventions have preambular texts which reiterate the concept of human
dignity as the foundation of those treaties e.g., the ICCPR. Human rights derive from the inherent
dignity of the human person through an elaborate and dignified sending off.
We have norms which recognize the worth of a person e.g., recording a person’s birth and on death –
we mark the passage of a person. On that basis, individuals do not disappear – and the disappearance
does not end until the matter is resolved.
States assume certain obligations in how they are going to treat their citizens.
Next class: Sources and standards of International Human Rights Law
Are the sources of human rights the same as those of International Law?
This is affirmative, as the former is a subject of the latter.
Sources as spelled out under Article 38 of the ICJ Statute. This provision codifies the sources of
international law: International Conventions; Custom; General Principles of Law recognized by
civilized nations; International Norms (jus cogens); Subsidiary Sources e.g., municipal law and
writings of recognized authors.
What are international customs?
Jus cogens
Readings:
- The preambular texts of all international human rights instruments.
- Scahter, O. “Human Dignity as a Normative Concept” (1983) 77 AJIL 848 – 54
What is dignity? This is the state of quality of being worth of honor and respect. Human dignity and
the dignity of a person are now common expressions of basic human value used in a common sense
everywhere. This is evidenced by the fact that it appears in almost all international instruments as an
ideal – which recognize human dignity e.g., the Charter of the UN, the ILO Declaration of
Philadelphia, Article 10 of the ICCPR, the OAU Charter, etc.
There is no explicit of the expression “dignity for the human person” but a violation of human dignity
can be recognized even when the abstract term cannot be defined, for instance when a person is
tortured. Dignity emanates from the Latin word “dignitus” which means “worth”. The expression
“dignity” relates with inherent worth of every human being – who must not be perceived as objects or
instruments for the will of others. Intrinsic worth means that a high priority must be afforded in
political, social and legal affairs to individual choices in contexts regarding matters such as beliefs,
identity etc.
In the political context, respect for human dignity hinges on respect for individuals’ choices and the
consent of the governed. Without respect for choice and will, the respect for human dignity is moot.
IT also means that government cannot use coercion/force to make individuals adhere to achieve its
goals in total disregard of choice.
The concept of dignity can be given more meaning by attaching it to actions with psychological
effects.
Respect for intrinsic worth requires recognition that a person is entitled to have his beliefs, ideas and
feelings respected. It implies proper regard for individual responsibility. The use of coercion, physical
or psychological, is an affront to the concept of human worth.
Collective responsibility is a denigration of individual choice and act on their wishes.
Human dignity also relates to needs of human beings: things one cannot do without. If people cannot
access what they need, human dignity is under attack. Persons in abject conditions, denied of
subsistence experience an affront to their dignity. It requires a minimal concept of distributive justice
that would ensure the mitigation of their condition.
Substantial equality is a necessary condition for the intrinsic worth of a human being.
Conduct and ideas that are incompatible with dignity include statements that … people basing on their
origin, a denial of basic human rights, etc. There must be the possibility of extending human dignity
to new situations.
Adoch, C: All violations of rights are a violation of the right to human dignity.
Note and read: Article 5(1) of the ICCPR – a prohibition of the negative invocation of human rights.
- The International Bill of Human Rights i.e., the UDHR, the ICCPR and the ICESR
Case Law:
- Legal Consequences of States for the Continued Presence of South Africa in South West
Africa notwithstanding Security Council Resolution 667 (1970), adv. op. [1971] ICJ Rep. 6**
This case was primarily concerned with South Africa’s maintenance of an apartheid regime while
in occupation of Namibia. Through resolution 284(1970), the Security Council had requested the
ICJ’s advisory opinion on the matter.
South Africa alleged an apparent conflict of interest of three members of the Court – although the
court did not entertain them because none of the three cases called for the application of Article
17(2) of its Statute.
The Government of South Africa had advanced a number of objections that the ICJ should not
hear the case; a) two permanent members of the Security Council abstained from voting for the
resolution and b) South Africa should have been invited to participate in the discussion of the
dispute between itself and other Members of the UN (Article 32 of the Charter) and the
 requirement that members of the Security Council abstain from voting (Article 27(3) of the
Charter) should have been observed.
Determination: a) the voluntary abstention of a permanent member did not constitute a bar to the
adoption of resolutions by the Security Council and b) the question of Namibia was on the agenda
of the Security Council as a situation – and South Africa did not frame it as a dispute before the
Council. The implication was that the “case” was not litigation, but merely a case of a UN organ
seeking legal advice from the ICJ to guide it in respect of its own action. It did not concern a
dispute between South Africa and other member states. The fact that, in order to give its answer,
the Court might have to pronounce on legal questions upon which divergent views exist between
South Africa and the United Nations did not convert the case into a dispute between States.
(There was therefore no necessity to apply Article 83 'of the Rules of Court, according to which,
if an advisory opinion is requested upon a legal question "actually pending between two or more
States", Article 31 of the Statute, dealing with judges ad hoc, is applicable; the Government of
South Africa having requested leave to choose a judge ad hoc – but the Court declined. "…the
decision of the Court must be in accordance with its Statute and with the Rules duly framed by it
in pursuance of Article 30 of the Statute."
South Africa had also contended that, owing to political pressure – it would be improper for the
court to entertain the case. The ICJ declined, reasoning that the contention bore upon the nature of
the court as the principal judicial organ of the United Nations – acting only on the basis of law
and independently of all outside influence.
With the jurisdictional challenges disposed of, the ICJ went on to consider the merits of the case.
South Africa had a “Mandate” in South West Africa, dating back to the time when the League of
Nations was in operation. The issues in this case concerned the nature of the Mandate, its working
under the League of Nations, the consequences of the demise of the League and of the
establishment of the United Nations and the impact of further developments within the new
organization. Article 22 of the League Covenant formed the basis of “C” mandates – whose
practical effect (per South Africa) was not “far removed from annexation.
Court reasoned that this was in effect an admission that the provisions of the Covenant were
purely nominal and the rights they enforced were imperfect and unenforceable.
The mandates system was based on two principles: i) non-annexation and ii) well-being and
development of the peoples concerned formed a sacred trust of civilization – whose objective was
self-determination and independence. The Mandatory (South Africa) incurred a number of mandatory
obligations and the Council of the League was to ensure their fulfilment.
The dissolution of the League of Nations did not extinguish the “raison d’etre” and original object of
these obligations – and since their fulfilment did not depend on the existence of the league, they could
not be brought to an end merely because the supervisory organ had ceased to exist. There was no
understanding that the mandates would be cancelled or lapse with the dissolution of the League.
Article 80(1) of the UN Charter maintained the obligations of mandatories – and the ICJ has reiterated
the position that the Mandate System survived the demise of the League. This meant that the
supervisory element – one of an international body such as the UN – was bound to survive.
The United Nations suggested a system of supervision which would not exceed that which applied
under the mandates system, but this proposal was rejected by South Africa.
In 1966, the UN General Assembly, through resolution 2145 (XXI) decided that the S. W. Africa
Mandate was terminated and South Africa had no other right to administer the territory. The UN
Security Council proceeded to adopt various resolutions which declared South Africa’s continued
presence in Namibia illegal – and the court did not possess judicial review or appellate powers to
entertain objections to these resolutions. The request for an advisory opinion did not include one for a
finding on the validity of the said resolutions.
Legal Consequences
The entry into force of the UN Charter established a relationship between members of the UN on one
side and Mandatories on another – and a fundamental principle governing this relationship was that
the party which disowns or does not fulfil its obligations cannot be recognized as retaining the rights
which it derives from the relationship. Resolution 2145(XXI) determined that there had been a
material breach of the Mandate, which South Africa had disavowed.
According to the general principles of international law (now codified in the VCLT) the right to
terminate a treaty on account of breach must be presumed to exist in respect of all treaties, even if
unexpressed. This negates SA’s contention that the Covenant of the League did not confer on the
Council of the League power to terminate a mandate for misconduct of the mandatory – and the UN
could not derive from the league greater powers than the latter itself had.
Furthermore, the ICJ found that the consent of a wrongdoer to such a termination cannot be required –
(responding to the contention that the revocation of the mandate could not have been exercised
unilaterally by the Council).
The UN as a successor to the League must be considered as the supervisory institution vested with
competence to pronounce on the conduct of the Mandatory – (addressing the contention that
Resolution 2145(XXI) made pronouncements which the General Assembly was not competent to
make – as it was not a judicial organ.
The failure of South Africa to comply with the obligation to submit to supervision was undisputable.
The General Assembly was not making a finding on the facts, but formulating a legal situation. One
cannot assume, however, that it is prevented in special cases from adopting resolutions which make
determinations or have operative design. However, the General Assembly did not have the powers to
ensure the withdrawal of South Africa from the territory, which necessitated the co-operation of the
Security Council. The latter was acting in its primary responsibility for maintenance of peace and
security when it adopted its resolutions – with authority from Article 24 and the duty of compliance
under Article 25 for member states.
Court went on to emphasize that a binding determination by the Security Council (a competent organ)
that a situation is illegal could not remain without consequence. With South Africa having created and
maintained that situation – it had the obligation to put an end to it and withdraw its administration
from the territory. By occupying the territory without title, South Africa incurred international
responsibilities arising from continuing violation of an international obligation and it remained
accountable for any violations of the rights of the people of Namibia – or of its obligations under IL in
respect to exercise of its powers in relation to the Territory.
Member States of the UN were also under an obligation to recognize the illegality and invalidity of
South Africa’s continued presence in Namibia and to refrain from lending any form of assistance to
SA in its occupation of Namibia. This obligation extended to abstinence from entering into treaty
relations (although such abstinence was not to adversely affect the people of Namibia); to abstain
from sending diplomatic missions to SA including in their jurisdiction in Namibia and to withdraw
their agents there; to abstain from entering into economic and other relations with SA concerning
Namibia that may entrench its authority there and the non-recognition did not have to result into
depriving the people of Namibia of any advantages derived from international co-operation e.g. the
illegality could not be extended to the registration of births, deaths and marriages. No member state
departing from the above obligations would expect the UN to recognize the validity or effects of any
such relationship with SA.
SA tried to justify its segregationist policy by providing factual information concerning the objectives
and policies of separate development – the ICJ held that such information was not necessary.
The thrust of South Africa’s argument was that no act or omission on its part would violate its
international obligations unless it was shown that such an act was actuated by a motive or
directed towards a purpose other than to promote the interests of the inhabitants of the
territory.
“In order to determine whether the laws and decrees applied by South Africa in Namibia,
which are a matter of public record, constitute a violation of the purposes and principles of the
Charter of the United Nations, the question of intent or governmental discretion is not
relevant; nor is it necessary to investigate or determine the effects of those measures upon the
welfare of the inhabitants. It is undisputed, and is amply supported by documents annexed to
South Africa's written statement in these proceedings, that the official governmental policy
pursued by South Africa in Namibia is to achieve a complete physical separation of races and
ethnic groups in separate areas within the Territory. The application of this policy has
required, as has been conceded by South Africa, restrictive measures of control officially
adopted and enforced in the Territory by the coercive power of the former Mandatory. These
measures establish limitations, exclusions or restrictions for the members of the indigenous
population groups in respect of their participation in certain types of activities, fields of study
or of training, labour or employment and also submit them to restrictions or exclusions of
residence and movement in large parts of the Territory. 13 1. Under the Charter of the United
Nations, the former Mandatory had pledged itself to observe and respect, in a territory having
an international status, human rights and fundamental freedoms for al1 without distinction as
to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and
limitations exclusively based on grounds of race, colour, descent or national or ethnic origin
which constitute a denial of fundamental human rights is a flagrant violation of the purposes
and principles of the Charter.”
- Legal Consequences of the construction of a wall in the Occupied Palestinian Territory 235 –
68 (Jan. 30, 2004) [Palestinian Statement to ICJ]
- South West Africa cases (Ethiopia v South Africa: Liberia v South Africa) [1966] ICJ Rep. 3
(Judge Tanaka’s dissenting opinion on ‘concept of equality’ vis-à-vis Apartheid.
Lecture 2: Definition and normative sources of human rights – 11 th Feb, 2022.
A substantive part of the concept of human dignity arises from theology and was birthed out of
conflict – being the impetus for reflection on the issue and pushing it to the forefront of political and
religious discourse. Rights provide the enabling framework for observation of those rights.
International Human rights is a subject of international law and thus they share same sources as
spelled out in Article 38 of the ICJ Statute – international conventions, customs, general principles,
judicial decisions and teachings of the most qualified publicists (the latter two are qualified by Article
59 – which delimits the concept of precedent). Any decision that the ICJ makes is only between the
parties.
Sources of International Law
1. General principles of law recognized by civilized nations
These are often referred to as norms of international law. These are general principles of law
recognized by civilized nations.
Jus cogens – peremptory legal norms
A peremptory norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the same
character.
Hierarchy of norms and why it matters
Jus cogens rank higher than any other sources of international law.
i. Emergence
ii. Historical Background
iii. Article 53 VCLT
iv. Challenge of relative normativity
v. Contemporary developments
vi. Scope and applicability of jus cogens
vii. Instances of peremptory norms
International law recognizes the concept of state sovereignty: each state determines what happens
within its jurisdiction – when states come together, they consent to be bound by any obligations of
international law. Jus cogens are peremptory norms that supersede this arrangement. States
assume these obligations by being members of the international community, because the global
community accepts the same. States cannot out-contract these obligations.
When a right is accepted as being part of jus cogens, it is binding on all states.
Reading assignments and case law: IACHR, Michael Dominguez v the United States – in regard
to the execution of juveniles: “The prohibition on execution of juveniles has attained the status of
a jus cogens…”
“The prohibition of enlistment of child soldiers” - Prosecutor v Thomas Lubanga-Dyilo.
“The prohibition of piracy”
“The prohibition of torture” – the John Yoo memos
Next Lecture: Customs/Customary International law as a source of international human rights
law
Lecture 3 – 15th Feb, 2022.
International customary law is defined by Article 38(1)(b) of the ICJ Statute – to be evidence of
general practice accepted as law. The UN Charter recognizes the ICJ as the principal judicial body of
the UN system – which among other functions applies international customary law to resolve
disputes.
There are normally two ways of how international customary law arises: state practice and opinio
juris. State practice is a consistent form of conduct by states on the understanding that the law
requires them to act that way.
Opinio Juris:
Bodies of reference for this class will be the UN System: various Human Rights Committees and
Regional Human Rights bodies.
It comprises of aspects of international law that derive from custom – from the consistent conduct of
states. International customary law is the body of law that derives from practice over a period of time
in regard to human rights. It is considered one of the primary sources of international law.
The vast majority of the world’s states agree that international law exists as such. The contention is:
what rules are contained in custom?
For something to be a custom, a practice must be conducted by a wide number of states over a long
period of time e.g. the prohibition of non- and the right to humanitarian intervention. State
sovereignty is an important concept in customary law. Customary law may be binding on states that
recognize it and behave in such a way. A state may object to the existence of a custom.
NB: The Michael Dominguez case demonstrates the standard required for a state to be a persistent
objector – in relation to the US’ objection to the prohibition on execution of juveniles.
Some international treaties have evolved into custom – notwithstanding that treaties generally bind
parties that are signatories to and that have ratified them e.g. the Convention on the Rights of the
Child. The effect is that the custom is binding on countries that are not parties to the treaty.
The international legal framework: most of the provisions of the (UDHR) have evolved into
international custom.
[missing sentences]
Treaties as a source of human rights
Article 2(1) of the ICCPR provides that “Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status.”
Treaties have certain degrees of hierarchy. Customs may evolve into jus cogens and treaties may
evolve into custom.
The international bill of human rights is primarily made up of three treaties: the UDHR of 1948, the
ICCPR and the ESCR (1976) and their protocols.
Background: Following the second world war, the revolutionary idea that human rights should not be
left to public authorities necessitated the drafting of the UN Charter in 1945 – whose preamble
reaffirmed the principle of human dignity. The UN General assembly directed a committee to explore
the possibility of drafting a text codifying human rights – which was drafted and presented to the
General Assembly. Consensus was not reached – owing to ideological differences – so the
Declaration (a non-binding text) was adopted. This charter did not elaborate what human rights could
be and the ways to achieve their protection: but it opened the door for the drafting and declaration of
the 1948 Declaration – which was but an introductory part of the international bill of rights. The
committee split the UDHR into civil and political rights and Economic, Social and Cultural Rights
aspects. Following the same process as the UDHR, the ICCPR and ESCR were adopted by the
General Assembly in 1976 – forming the international bill of human rights, which is currently not
disputed by any state – insofar as it is binding on all states.
[there was a discussion on the substantive provisions of the UDHR, the ICCPR and the ICESCR and
the protocols to the latter two]
Examine the concept of negative rights.
Protocols – a protocol is an addendum. A state party cannot be a party to the protocol without being
party to the main instrument.
a. First optional protocol to the ICCPR – a complaint mechanism: the states that signed and
ratified the treaty recognize the treaty compliance body (the Human Rights Committee) set up
thereunder to receive complaints from their citizens. Uganda has not signed this protocol.
b. The second optional protocol to the ICCPR (1991) – aimed at abolishing the death penalty
The Human Rights Committee and the Committee on Economic, Cultural and Social rights are
enforcements mechanisms established to enforce these instruments.
We will begin by studying the general comments on each provision in these instruments. They have
been replicated in other binding treaties, reiterating the rights prescribed in these instruments.
Significance of the International Human Rights Bill
- It influences governmental action in prioritizing civil and political rights
- It gives an authoritative list of the usual human rights
- It demonstrates the importance of the UN in setting standards for human rights
Treaties are negotiated and consensual. Countries may make reservations regarding certain
provisions: these spell out a country’s understanding of a treaty and the provisions they do not wish to
enforce, or such that they will enforce in a modified form. For instance, Uganda has made a
reservation to the Maputo Protocol regarding abortion. Article 19 of the VCLT is the basis for making
reservations in the international law system.
Next lecture: Limitations and Derogations
Reading: General Comment on Limitations and Derogations
Lecture 4
Some treaties are global and others are regional. They set up treaty bodies – to monitor the same
subject. They are monitored in two ways:
i. State party reporting e.g. under the ICCPR, we have the Human Rights Committee
(Article 28) – the body charged with monitoring compliance with the treaty. Basically,
each party state provides a report every four years (pursuant to Article 40). The voluntary
nature of treaties creates leeway for states to make reservations to provisions of treaties.
ii. Complaints’ mechanisms: various treaties establish bodies to monitor compliance with
them. For instance, the Convention against Torture, the ICCPR, the ACHPR etc set up
committees, which play the role of monitoring state compliance.
Reading: Status of reservations on various treaties – UN Database.
Writings of Scholars and Judicial Decisions as a source of international law
Can the writings of scholars be a source of law?
Article 38(d) of the ICJ Statute provides that judicial decisions and the teachings of the most highly
qualified publicists of the various nations are subsidiary means for the determination of rules of law.
Essentially, we do not regard what a particular scholar wrote – writings of scholars are regarded as
evidence of the state of the law.
Case law: Paquett Habana 175 U.S. 677 (1900): in the absence of higher and more authoritative
sanctions…the writings of distinguished jurists are regarded as of great consideration on questions not
settled by conventional law. In cases where the principal jurists agree, the presumption will be very
much in favor of the solidity of their maxims and no civilized nation that does not arrogantly set all
ordinary law and justice at defiance will venture to disregard the uniform sense of the established
writers on international law.
Judicial decisions – court decisions made by domestic courts. Judicial decisions do not generally rely
on domestic decisions, but where there is a lack of clarity, they may refer to domestic decisions to
clarify a certain matter. In the cases surrounding the Rwanda genocide, international law did not have
an internationally accepted definition of rape – and in cases such as Prosecutor v Akayesu (ICTR);
Prosecutor v Kunarac (ICTY), the tribunals adopted the common law definitions.
Article 38 also refers to general principles that are applied universally in courts across the world e.g.
principles such as res judicata, etc.
Soft law
These sources of law do not have binding force, but still possess legal significance e.g. UN
resolutions, declarations, guidelines, codes of conduct etc. It is essentially a non-binding treaty. The
term ‘soft law’ simply describes this class of instruments.
Citation of authorities – there are only two acceptable decisions of domestic courts exclusively
applying international law. (Do not refer to CEHURD)
The largest number of treaties that have been adopted concern human rights and trade treaties. When a
country signs a treaty, it is bound by it – there are binding obligations assumed by the state party.
Article 27 of the ICCPR obliges parties to domesticate its provisions.
Limitations and derogations
Next Lecture: Substantive Rights; specific civil and political rights: first generation rights,
second generation rights and third generation rights.
First generation rights: These confer a negative obligation on states – to refrain from doing certain
prohibited acts.
Second generation rights – confer a positive obligation.
Third generation rights – these are collective/group/communal rights such as the right to culture, the
right to healthcare etc.
The world conference on human rights in Vienna (1993) adopted a Vienna Declaration – a program of
action: “Considering that the promotion and protection of human rights is a matter of priority for the
international community, and that the Conference affords a unique opportunity to carry out a
comprehensive analysis of the international human rights system and of the machinery for the
protection of human rights, in order to enhance and thus promote a fuller observance of those rights,
in a just and balanced manner…The World Conference on Human Rights reaffirms the solemn
commitment of all States to fulfil their obligations to promote universal respect for, and observance
and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of
the United Nations, other instruments relating to human rights, and international law. The universal
nature of these rights and freedoms is beyond question…”
This instrument reiterates the universality of human rights; that human rights are interrelated and
indivisible. It essentially posits that rights cannot be enjoyed in isolation – they are universal,
interrelated and interdependent. It means that human rights are linked, and the violation of one right
has a cascading effect on the protection and observation of other rights. For instance, when one is
tortured, their right to dignity, health etc. are violated in the same act.
Specific Human Rights
1. The Right to Life
Article 6 of the ICCPR provides that, “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.”
Article 4 of the ACHPR: “Human beings are inviolable. Every human being shall be entitled to
respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
Article 2 of the ECHR: “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.”
These distinct human rights systems are mutually reinforcing. One’s right to life is protected in Africa
by the ACHPR and the ICCPR: a violation of the right to life entitles an individual to file a complaint,
either before the African Committee on Human Rights or before the UN Human Rights Committee –
depending on which human rights treaty my country is a state party to.
The interpretation of State obligations in relation to Article 7 of the ICCPR is contained in General
Comments by the UN Human Rights Committee.
Reading: General Comment No. 6 of the ICCPR on the right to life: “The right to life enunciated in
article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no
derogation is permitted even in time of public emergency which threatens the life of the nation (art.
4). However, the Committee has noted that quite often the information given concerning article 6 was
limited to only one or other aspect of this right. It is a right which should not be interpreted
narrowly… The Committee observes that war and other acts of mass violence continue to be a
scourge of humanity and take the lives of thousands of innocent human beings every year. Under the
Charter of the United Nations the threat or use of force by any State against another State, except in
exercise of the inherent right of self-defence, is already prohibited. The Committee considers that
States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence
causing arbitrary loss of life. Every effort they make to avert the danger of war, especially
thermonuclear war, and to strengthen international peace and security would constitute the
most important condition and guarantee for the safeguarding of the right to life… The protection
against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is
of paramount importance. The Committee considers that States parties should take measures not
only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary
killing by their own security forces. The deprivation of life by the authorities of the State is a matter
of the utmost gravity… States parties should also take specific and effective measures to prevent
the disappearance of individuals, something which unfortunately has become all too frequent
and leads too often to arbitrary deprivation of life. Furthermore, States should establish
effective facilities and procedures to investigate thoroughly cases of missing and disappeared
persons in circumstances which may involve a violation of the right to life. Moreover, the
Committee has noted that the right to life has been too often narrowly interpreted. The expression
“inherent right to life” cannot properly be understood in a restrictive manner, and the protection of
this right requires that States adopt positive measures. In this connection, the Committee considers
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…”
Summary of obligations
General Comment No. 6 elucidates the following obligations upon states:
Prevention of wars
Protection against arbitrary deprivation of life by criminal acts
Prevention of killings by security forces and effective investigation of such killings when committed
Prevention of disappearance of individuals and investigation of allegations of such disappearances
leading to the presumption of death
Limitation of use of the death penalty to the most serious crimes. The obligation under the second
optional protocol on the death penalty extends to second states in relation to extradition.
Case Law:
- Isayeva v Russia (Application No. 57950/00) – on the conduct of war
- McCann v. UK: ECHR (21 ECHR 97 GC
Reading: Article 1 & 2 of the Declaration on the Protection of all Persons from Enforced
Disappearance (adopted by General Assembly resolution 47/133 of 18 December 1992)

- Bleier v Uruguay, Communication No. 30/1978

- Quinteros Almeida v Uruguay, Communication No. 107/1981
Case law:
- Kindler v. Canada, Commn. No. 470/91, UN Doc. CCPR/C/48i/D/470/91 (1993) (HRC). on
the obligation to limit the use of the death penalty
- The case of Baby Boy, Inter-American Commission on Human Rights, Case 2141, United
States, 1981 on abortion and the right to life
- Haas v Switzerland; ECHR, (2011) – on the right to die
Mr. Ernst G. Haas suffered a serious bipolar affective disorder for about 20 years. He attempted
suicide twice during that period and stayed in psychiatric disorders on several occasions. He
became a member of an organization (Dignitas) which offered, among other services, assisted
suicide. With the view that his illness made it impossible to live with dignity, the applicant asked
Dignitas to assist him in ending his life – and to that end, he approached several psychiatrists to
obtain the necessary lethal substance – 15 grams of sodium pentobarbital – available only on
prescription. He was unsuccessful. The Federal Office of Justice found that it did not have the
jurisdiction to grant his request, as did the Canton of Zurich and the Federal Department of the
Interior.
The applicant relied on Article 8 of the ECHR to aver that the same guaranteed the right to die
and State interference with this right was acceptable only in the conditions set out in 8(2). The
obligation to submit a medical prescription to obtain the necessary substance for suicide, and the
impossibility of procuring such a prescription (backed by the threat of doctor license withdrawal)
– amounted to interference with his right to respect for his private life. Such interference was
admittedly in accordance with the law and pursuing a legitimate claim, but was not proportionate.
The Federal Court of Switzerland held that the applicant had not obtained the necessary
prescription, and this was not an exceptional case in which a medical product could be issued
without a prescription. It found that:
The right to self-determination in Art. 8(1) includes the right of an individual to decide at
what point and in what manner they will die – at least where they are capable of freely
reaching a decision in that respect and acting accordingly. However, the right to die did not
 include – and must be distinguished from the right to assisted suicide from the State or a
third-party. Such a right cannot be inferred from either Art. 10(2) of the Federal Constitution
or Art. 8 of the ECHR. The State has a fundamental obligation to protect life – although such
is not generally extended against the will of a person capable of forming his or her own
views. It did not follow that the State has a positive obligation to ensure that a person who
wishes to die has access to a dangerous substance – selected for the purpose of suicide or to
tools intended for that purpose.
The Convention, it held, does not guarantee rights that are theoretical or illusory – but rights
that are practical and effective – Artico v Italy, Series A no. 37. The freedom to commit
suicide and the freedom to choose one’s quality of life were restricted by the fact that the
State does not authorize the unconditional issue of the substance in question, it made it
dependent on presentation of a medical prescription on the basis of pharmaceutical and
medical science: it was not necessary to authorize unrestricted availability of the substance,
suitable as it was for the intended act.
The European Court of Human Rights’ analysis: It noted that the applicant’s claim arose from Article
8 of the ECHR – which guarantees respect for every person’s private and family life, their home and
their correspondence.
The State argued that there were inherent risks associated with excessive liberalization in the area of
suicide. The illness of the applicant did not preclude him from acting autonomously – and there were
numerous options available to able-bodied persons wishing to commit suicide. The right to self-
determination enshrined in Article 8(1) could not include the right to assisted suicide – whether by
availing the necessary means or through active assistance where the person is unable to act
autonomously.
Assisted suicide for individuals was not only legally possible in Switzerland, but occurred in
practice: all criminal convictions for prescription concerned cases where the diagnosis had not
been carefully established or manifestly erroneous.
The Court noted that the concept of “private life: is a broad term incapable of exhaustive definition. It
covers the physical and psychological integrity of a person – X and Y v the Netherlands (1985) Series
A no. 91). It can sometimes embrace aspects of an individual’s physical and social identity
(Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I) including elements such as  name, gender
identification, and sexual orientation and sexual life. This provision protects a right to personal
development and the right to establish and develop relationships with other human beings and the
outside world. In Pretty v the UK, the Court held that the applicant’s choice to  avoid what she
considered an undignified and distressing end to her life  fell within the scope of Article 8 of
the Convention. Court held that an individual’s right to decide by what means and at what point
their life will end, provided they are capable of freely reaching a decision on the question and
acting in consequence, is one of the aspects of the right to respect for private life within the
meaning of Article 8.
The instant case was, however, different from the Pretty case. It did not concern the freedom to die
and possible immunity for the person providing assistance with suicide. The subject of dispute was
whether, under Article 8, the State must ensure that the applicant can obtain a lethal substance
without a medical prescription, by way of derogation from the legislation – in order to commit suicide
without risk of failure. The applicant could not be considered infirm – he was not at the terminal stage
of an incurable degenerative disease, which would prevent him from taking his own life.
Court would consider the applicant’s request from the perspective of a positive obligation on the State
to take the necessary measures to permit a dignified suicide. This presupposes a consideration of
different interests, an exercise in which the State is recognized as having a certain margin of
appreciation (see Keegan v Ireland) – which varies in accordance with the nature of the issues and the
importance of the interests at stake. The court has jurisdiction to review in fine whether the domestic
decision complies with the requirements of the Convention.
The Convention must be read as a whole - Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland
(no. 2) [GC], no. 32772/02, § 83, ECHR 2009. It was appropriate to refer to Article 2 of the
Convention, which creates a duty to protect vulnerable persons, even against actions by which they
endanger their own lives (see Keenan v the UK). The latter Article obliges the national authorities to
prevent an individual from taking their life if the decision has not been taken freely and with full
understanding of what is involved.
The Convention and Protocols thereto must be read in the light of present-day conditions – Tyrer v
The UK; Airey v Ireland. There, however, was no consensus among states to enable the Court to
conclude the position with regard to an individual’s choice of how and when his life should end.
“With regard to the balancing of the competing interests in this case, the Court is sympathetic to the
applicant’s wish to commit suicide in a safe and dignified manner and without unnecessary pain and
suffering, particularly given the high number of suicide attempts that are unsuccessful and which
frequently have serious consequences for the individuals concerned and for their families. However,
it is of the opinion that the regulations put in place by the Swiss authorities, namely the
requirement to obtain a medical prescription, pursue, inter alia, the legitimate aims of
protecting everybody from hasty decisions and preventing abuse, and, in particular, ensuring
that a patient lacking discernment does not obtain a lethal dose of sodium pentobarbital
(see, mutatis mutandis, with regard to restrictions on abortion, Tysiąc v. Poland, no. 5410/03, §
116, ECHR 2007-I).”
“Such regulations are all the more necessary in respect of a country such as Switzerland, where the
legislation and practice allow for relatively easy access to assisted suicide. Where a country adopts a
liberal approach in this manner, appropriate implementing  measures for such an approach and
preventive measures are necessary. The introduction of such measures is also intended to prevent
organisations which provide assistance with suicide from acting unlawfully and in secret,  with
significant risks of abuse.
“In particular, the Court considers that the risks of abuse inherent in a system that facilitates access to
assisted suicide should not be underestimated. Like the Government, it is of the opinion that
the restriction on access to sodium pentobarbital is designed to protect public health and safety and to
prevent crime. In this respect, it shares the view of the Federal Court that the right to life guaranteed
by Article 2 of the Convention obliges States to establish a procedure capable of ensuring that a
decision to end one’s life does indeed correspond to the free  will of the individual concerned. It
considers that the requirement for a medical prescription, issued on the basis of a full psychiatric
assessment, is a means enabling this obligation to be met. Moreover, this solution corresponds to the
spirit of the United Nations Convention on Psychotropic Substances and the conventions adopted by
certain member States of the Council of Europe.”
- Pretty v. United Kingdom; ECHR, (2002) 35 E.H.R.R.1 – on the right to die
The applicant, Ms. Diane Pretty – brought the application under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms. She was paralyzed and suffering
from an incurable, degenerative disease (motor-neuron disease [MND]). Notwithstanding her
physical incapacitation, the applicant’s capacity to make decisions was unimpaired. She was
distressed at the suffering and indignity that she would endure if the disease ran its course and
wished to control how and when she died, thereby being spared that suffering and indignity.
It is not a crime under English law to commit suicide, but the applicant was prevented by her
disease from taking such a step without assistance. Under section 2(1) of the Suicide Act – it is a
crime to assist another to commit suicide.
The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland
[1993] AC 789 at 831: 'No one in this case is suggesting that Anthony Bland should be given
a lethal injection. But there is concern about ceasing to supply food as against, for example,
ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to
terms with our intuitive feelings about whether there is a distinction, I must start by
considering why most of us would be appalled if he was given a lethal injection. It is, I think,
connected with our view that the sanctity of life entails its inviolability by an outsider. Subject
to exceptions like self-defence, human life is inviolate even if the person in question has
consented to its violation. That is why although suicide is not a crime, assisting someone to
commit suicide is. It follows that, even if we think Anthony Bland would have consented, we
would not be entitled to end his life by a lethal injection.'
The applicant thus applied to the DPP to grant an immunity from prosecution to her husband, if he
assisted her in committing suicide, the DPP refused. Her subsequent action for judicial review
failed in the Divisional Court.
Therein, she claimed that she had a right to her husband's assistance in committing
suicide and that section 2 of the 1961 Act, if it prohibited his helping and prevents the
Director undertaking not to prosecute if he does, is incompatible with the European
Convention on Human Rights. It is on the Convention, brought into force in this country
by the Human Rights Act 1998, that Mrs Pretty's claim to relief depended. She could not
have succeeded under the common law of England.
The Divisional Court emphasized that its jurisdiction was not to weigh or evaluate beliefs
or views as a moral arbiter, or to give effect to its own – but to ascertain and apply the
law of the land as it was understood to be.
Article 2 of the ECHR is to be read together with Articles 1 and 2 of the Sixth Protocol,
which are among the Convention rights protected by the Human Rights Act of 1998 (s.
1(1)(c)) – which abolished the death penalty in time of peace.
The claimant argued that Article 2 protects not life, but the right to life. Its purpose was to
protect individuals from third parties (the State and Public authorities) – but it recognizes
that it is for the individual to choose whether or not to live, and so protects the
individual’s right to self-determination in relation to issues of life and death. Therefore,
one may refuse life-prolonging medical treatment, and may lawfully choose to commit
suicide. “While most people want to live, some want to die, and the Article protects both
rights. The right to die is not the antithesis of the right to life but the corollary of it, and
the State has a positive obligation to protect both.” They also argued that the right to die
did not extend to consensual killing.
The Divisional Court noted the objections of the Secretary of State: that the language of
the Article reflects the sanctity which – in western eyes – attached to life. It protects the
right to life and prevents the deliberate taking of life save in very narrowly defined
circumstances. An article with that effect could not be interpreted as conferring a right to
die, or enlist the help of another in bringing about the death one’s own death. Regarding
consensual killing, court reasoned that: “If Article 2 does confer a right to self-
determination in relation to life and death, and if a person were so gravely disabled as to
be unable to perform any act whatever to cause his or her own death, it would necessarily
follow in logic that such a person would have a right to be killed at the hands of a third
 party without giving any help to the third party and the State would be in breach of the
Convention if it were to interfere with the exercise of that right.”
Court reasoned that some of the guaranteed Convention rights have been interpreted as
conferring rights not to do the antithesis of what there is an express right to do. Article 11
for example confers the right not to join an association (Young, James and Webster v UK
(1981) 4 EHRR 38); a right to freedom from any compulsion to express thoughts or
change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human
Rights (2000), p. 974, para. 14.49); Article 12 confers a right not to marry (see Clayton
and Tomlinson, ibid., p. 913, para. 13.76) – but it could not be suggested that Articles 3,
4, 5 and 6 confer an implied right to do or experience the opposite of that which the
Articles guarantee.
“Whatever the benefits which, in the view of many, attach to voluntary euthanasia,
suicide, physician-assisted suicide and suicide assisted without the intervention of a
physician, these are not benefits which derive protection from an Article framed to
protect the sanctity of life”
Court also reasoned that the obligation of the state to safeguard the life of a potential
victim is enhanced when the latter is in the custody of the state. Its positive obligation to
protect the claimant’s life was weaker than in cases such as X v. Germany (1984) 7 EHRR
152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001. It wold thus be
impermissible to use these authorities to support the position that the claimant had a right
to take her own life.
The claim in this case was that such refusal infringed her rights under Articles 2, 3, 8, 9 and 14 of
the Convention.
The European Court of human rights commenced by citing the relevant law, and observed that
there is case law supporting the proposition that an individual may refuse life-prolonging or life-
preserving treatment – Lord Goff in Airedale NHS Trust v Bland [1993] AC 789 at 864: “the
principle of self-determination requires that respect must be given to the wishes of the patient, so
that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or
care by which his life would or might be prolonged, the doctors responsible for his care must give
effect to his wishes, even though they do not consider it to be in his best interests to do so ... To
this extent, the principle of the sanctity of human life must yield to the principle of self-
determination…” Also see Ms B. v. an NHS Hospital, Court of Appeal judgment of 22 March
2002.
It also noted that law review processes in the UK, particularly the 14 th Report by the Criminal
Law Revision Committee ““Offences against the Person” (Cmnd 7844)” of March 1980
unanimously withdrew penal sanctions against persons (two years’ imprisonment) who, from
compassion, unlawfully killed another person permanently subject to great bodily pain and
suffering. It also recommended the reduction of the penalty for assisted suicide to seven years – to
protect persons open to persuasion by the unscrupulous.
The House of Lords Select Committee on Medical Ethics (HL Paper 21-I) concluded, regarding
voluntary euthanasia that: “The right to refuse medical treatment is far removed from the right to
request assistance in dying… we do not believe that these arguments are sufficient reason to
weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and
of social relationships. It protects each one of us impartially, embodying the belief that all are
equal. We do not wish that protection to be diminished and we therefore recommend that there
should be no change in the law to permit euthanasia. We acknowledge that there are individual
cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot
 reasonably establish the foundation of a policy which would have such serious and widespread
repercussions. Moreover, dying is not only a personal or individual affair. The death of a person
affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe
that the issue of euthanasia is one in which the interest of the individual cannot be separated from
the interest of society as a whole…”
Regarding elderly, sick or distressed persons: “…Requests resulting from such pressure or
from remediable depressive illness would be identified as such by doctors and managed
appropriately. Nevertheless…the message which society sends to vulnerable and
disadvantaged people should not, however obliquely, encourage them to seek death, but
should assure them of our care and support in life…”
The Parliamentary Assembly of the Council of Europe (Res. 1418) recommended that member
States respect and protect the dignity of terminally ill or dying person in all respects, by upholding
the prohibition against intentionally taking the life of terminally ill or dying persons, while:
i. i. recognising that the right to life, especially with regard to a terminally ill or dying
person, is guaranteed by the member States, in accordance with Article 2 of the European
Convention on Human Rights which states that 'no one shall be deprived of his life
intentionally';
ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal
claim to die at the hand of another person;
iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a
legal justification to carry out actions intended to bring about death.
The applicant submitted that permitting her to be assisted in committing suicide would not be in
conflict with Article 2 of the Convention – otherwise states legalizing assisted suicide would be in
breach of the convention. This was in addition to the arguments made in the Divisional Court in the
UK.
Court held that it would not attempt to make an assessment to that effect – whether the state
of law in any country fails to protect the right to life; the extent to which a state permits, or
seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their
own or another’s hand, may raise conflicting considerations of personal freedom and the
public interest that can only be resolved on examination of the concrete circumstances of the
case.
The government submitted that there was no direct authority for the applicant’s assertions and Article
2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation – and
although it had in some cases been found to impose positive obligations, this concerned steps
appropriate to safeguard life (see Keenan and X v Germany). The right to die was not the corollary,
but the antithesis of the right to life.
The Court affirmed that Article 2 is one of the most fundamental provisions of the Conventions – it
safeguards the right to life, without which the enjoyment of other rights and freedoms in the
convention is rendered nugatory. It also sets out limited circumstances when deprivation of life may
be justified.
The text of the provision expressly regulates the deliberate or intended use of lethal force by State
agents; it has also been interpreted as covering not only intentional killing but also the situations
where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of
life - McCann and Others v. the United Kingdom, judgment of 27 September 1995 at pages 45-46,
146-147. It enjoins the State not only to refrain from the intentional and unlawful taking of life, but
also to take appropriate steps to safeguard the lives of those within its jurisdiction – LBC v the UK,
Reports of Judgments and Decisions 1998-III, p. 1403, § 36. This obligation extends beyond a
primary duty to secure the right to life by putting in place effective criminal law provisions to deter
the commission of offences against the person backed up by law-enforcement machinery for the
prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain
well-defined circumstances a positive obligation on the authorities to take preventive operational
measures to protect an individual whose life is at risk from the criminal acts of another individual –
Osman v the UK; Keenan.
The consistent emphasis in all the cases has been the obligation of the State to protect life; the Court
was not persuaded that “the right to life” guaranteed in Article 2 could be interpreted as having a
negative aspect. While for instance freedom of association under Article 11 of the ECHR has a
corresponding right not to be forced to join an association – the notion of a freedom implies some
measure of choice as to its exercise - Young, James and Webster v. the United Kingdom.
Article 2 is phrased in different terms – it is unconcerned with the quality of living or what a person
chooses to do with his or her life: to the extent that these aspects are recognized as so fundamental to
the human condition that they require protection from State interference, they may be reflected in the
rights guaranteed by other Articles of the convention, or in other HR instruments. The provision
cannot (without a distortion of language) be interpreted as conferring the diametrically opposite right
– a right to die: nor can it create a right to self-determination in the sense of conferring on an
individual the entitlement to choose death rather than life.
“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. It is confirmed in this view by the recent
Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe (see
paragraph 24 above).”
Lecture 5 – the right to life – 25th Feb, 2022
[missing starting paragraphs]
Reading: General Comment No. 36 of 2018 on Article 6 of the ICCPR [replacing earlier general
comments No. 6 and 14 of 1982 and 1984 respectively]:
Article 6 recognizes and protects the right to life of all human beings. It is the supreme right from
which no derogation is permitted even in situations of armed conflict and other public emergencies
which threatens the life of the nation.[1] The right to life has crucial importance both for individuals
and for society as a whole. It is most precious for its own sake as a right that inheres in every human
being, but it also constitutes a fundamental right [2] whose effective protection is the prerequisite for
the enjoyment of all other human rights and whose content can be informed by other human rights. 3.
The right to life is a right which should not be interpreted narrowly. It concerns the entitlement of
individuals to be free from acts and omissions that are intended or may be expected to cause their
unnatural or premature death, as well as to enjoy a life with dignity. Article 6 guarantees this right for
all human beings, without distinction of any kind, including for persons suspected or convicted of
even the most serious crimes. 4. Paragraph 1 of article 6 of the Covenant provides that no one shall be
arbitrarily deprived of his life and that the right shall be protected by law. It lays the foundation for
the obligation of States parties to respect and to ensure the right to life, to give effect to it through
legislative and other measures, and to provide effective remedies and reparation to all victims of
violations of the right to life. 5. Paragraphs 2, 4, 5 and 6 of article 6 of the Covenant set out specific
safeguards for ensuring that in States parties which have not yet abolished the death penalty, it must
not be applied except for the most serious crimes, and then only in the most exceptional cases and
under the strictest limits. [3] The prohibition on arbitrary deprivation of life contained in article 6,
paragraph 1 further limits the ability of States parties to apply the death penalty. The provisions of
paragraph 3 regulate specifically the relationship between Article 6 of the Covenant and the
Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide
Convention’).
Deprivation of life involves an intentional [4] or otherwise foreseeable and preventable life-
terminating harm or injury, caused by an act or omission. It goes beyond injury to bodily or mental
integrity or threat thereto. [5]
Obligations under the right to life.
States are obliged to prevent:
i. Wars
ii. Arbitrary killings
iii. Killings by state forces
iv. Disappearances of human beings
The primary obligation of states to prevent wars:
International wars are prohibited, save for the inherent right to self defence.
“Wars and other acts of mass violence continue to be a scourge of humanity resulting in the loss of
lives of many thousands of lives every year. [279] Efforts to avert the risks of war, and any other
armed conflict, and to strengthen international peace and security, are among the most important
safeguards for the right to life. [280] States parties engaged in acts of aggression as defined in
international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant. At the
same time, all States are reminded of their responsibility as members of the international community
to protect lives and to oppose widespread or systematic attacks on the right to life, [281] including
acts of aggression, international terrorism, genocide, crimes against humanity and war crimes, while
respecting all of their obligations under international law. States parties that fail to take all reasonable
measures to settle their international disputes by peaceful means might fall short of complying with
their positive obligation to ensure the right to life.”
In circumstances where a country’s territorial integrity is under attack, there are specific human rights
obligations on the country whose territory is under attack.
Case law: Isayeva v Russia (Application No. 57950/00) – on the conduct of hostilities
[presentation by S. Edwin]
Application against Russia for the deaths of the applicant’s child, nephew and other relatives. Rebels
attacked a village in Russia
There is an obligation to use minimal, proportional force in a way that minimizes any possible loss of
civilian lives and an obligation to make an investigation into the situation to seek answers on whether
there was appropriate conduct.
Article 2 of the ICCPR spells out State obligations and General Comments explain the same.
Readings: The UN guidelines on use of Force and Firearms
The obligation to protect citizens from criminals
Case law: Osman v. United Kingdom; ECHR 23452/94
The applicants complained of a failure by the United Kingdom to protect the right to life of the second
applicant and his deceased father. At p. 305 the court said:
'115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from
the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of
those within its jurisdiction. It is common ground that the State's obligation in this respect extends
beyond its primary duty to secure the right to life by putting in place effective criminal law provisions
to deter the commission of offences against the person backed up by law-enforcement machinery for
the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by
those appearing before the Court that Article 2 of the Convention may also imply in certain well-
defined circumstances a positive obligation on the authorities to take preventive operational measures
to protect an individual whose life is at risk from the criminal acts of another individual. The scope of
this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the
unpredictability of human conduct and the operational choices which must be made in terms of
priorities and resources, such an obligation must be interpreted in a way which does not impose an
impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life
can entail for the authorities a Convention requirement to take operational measures to prevent that
risk from materialising. Another relevant consideration is the need to ensure that the police exercise
their powers to control and prevent crime in a manner which fully respects the due process and other
guarantees which legitimately place restraints on the scope of their action to investigate crime and
bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.'
The obligation to protect citizens from killings by security forces
Case law: McCann & Others v the United Kingdom, Application No. 18984/91
The UN regulations on use of force and firearms provides guidelines on use of force by security
agencies.
Court held that the use of force in the circumstances of the case was disproportionate. It could have
been prevented: the police allowed the terrorists to leave the forces to Gibraltar and used special
forces, a unit trained to kill. The failure to make allowances that the intelligence was erroneous led to
the conclusion that the killing of the terrorist suspects was not proportionate use of force and in
violation of Article 2(2). It was as though they had predetermined to kill the terrorist suspects.
The obligation to prevent enforced disappearances of persons
“The right to life guaranteed by article 6 of the Covenant, including the right to protection of life
under article 6, paragraph 1, may overlap with the right to security of person guaranteed by article 9,
paragraph 1. Extreme forms of arbitrary detention that are themselves life-threatening, in particular
enforced disappearances, violate the right to personal liberty and personal security and are
incompatible with the right to life. Failure to respect the procedural guarantees found in article 9,
paragraphs 3 and 4, designed inter alia to prevent disappearances, could also result in a violation of
article 6. Enforced disappearance constitutes a unique and integrated series of acts and omissions
representing a grave threat to life. The deprivation of liberty, followed by a refusal to acknowledge
that deprivation of liberty or by concealment of the fate of the disappeared person, in effect removes
that person from the protection of the law and places his or her life at serious and constant risk, for
which the State is accountable. It thus results in a violation of the right to life as well as other rights
recognized in the Covenant, in particular, article 7 (prohibition of torture or cruel, inhuman or
degrading treatment or punishment), article 9 (liberty and security of persons), and article 16 (right to
recognition of a person before the law). States parties must take adequate measures to prevent the
enforced disappearance of individuals, and conduct an effective and speedy inquiry to establish
the fate and whereabouts of persons who may have been subject to enforced disappearance.
States parties should also ensure that the enforced disappearance of persons is punished with
appropriate criminal sanctions and introduce prompt and effective procedures to investigate
cases of disappearances thoroughly, by independent and impartial bodies that operate, as a rule,
within the ordinary criminal justice system. They should bring to justice the perpetrators of such
acts and omissions and ensure that victims of enforced disappearance and their relatives are informed
about the outcome of the investigation and are provided with full reparation. Under no circumstances
should families of victims of enforced disappearance be obliged to declare them dead in order to be
eligible for reparation. States parties should also provide families of victims of disappeared persons
with means to regularize their legal status in relation to the disappeared persons after an appropriate
period of time. A particular connection exists between article 6 and article 20, which prohibits any
propaganda for war and certain forms of advocacy constituting incitement to discrimination, hostility
or violence. Failure to comply with these obligations under article 20, may also constitute a failure to
take the necessary measures to protect the right to life under article 6.
Enforced disappearances are believed to be some of the worst forms of human rights abuses. There
are processes for how people are supposed to be lawfully arrested: an enforced disappearance takes
one outside the framework of the law. These are usually at the hands of law enforcement officials.
International law states that enforced disappearance constitutes an international crime.
There is an International Convention for the Protection of all Persons from Enforced Disappearance.
[read its preamble and Article 2 for definition of an enforced disappearance: “…outside the protection
of the law.”]
Usually, when people are disappeared, there is a strong likelihood that it will cause other human rights
violations, e.g., loss of the rights to liberty, a fair hearing, freedom from torture etc.
Case law:
- Bleier v Uruguay, Communication No. 30/1978
- Quinteros Almeida v Uruguay, Communication No. 107/1981
Declaration of States of Emergency
Next lecture: The Right to Life and the Death Penalty
Lecture 6 – March 1st 2022
The use of the death penalty
International human rights law does not contain a general prohibition on the use of the death penalty.
Under Article 6(4) of the UDHR, anyone sentenced to death shall have the right to seek pardon or
commutation; sentence of death shall not be imposed on persons under the age of 18 and shall not be
carried out on pregnant women.
There is only a framework for the use of the death penalty. It is only to be imposed for the most
serious crimes – Article 6(2). It can only be carried out pursuant to a final judgment of a final court –
one that renders a non-appealable judgment. It cannot be imposed on juveniles or pregnant women.
There is an optional protocol to the ICCPR; the second optional protocol is an instrument aimed at the
abolition of the death penalty. Read Article 1.
It is possible for a country to be party to the ICCPR and not be a state party to the second optional
protocol.
The obligation to protect people within one’s jurisdiction means they cannot send people to a country
where they may be subject to the death penalty.
- Kindler v. Canada, Commn. No. 470/91, UN Doc. CCPR/C/48/D/470/91 (1993) (HRC).
The second optional protocol expands the scope of obligation undertaken by the state parties: under
international law, extradition is transfer of a criminal suspect from one jurisdiction to another. It is a
judicial process. There is an obligation on countries which have abolished the death penalty not to
extradite individuals to countries where they may be subject to the death penalty.
CCPR/C/GC/36, para 34: “States parties that abolished the death penalty cannot deport, extradite or
otherwise transfer persons to a country in which they are facing criminal charges that carry the death
penalty, unless credible and effective assurances against the imposition of the death penalty have been
obtained. In the same vein, the obligation not to reintroduce the death penalty for any specific crime
requires States parties not to deport, extradite or otherwise transfer an individual to a country in which
he or she is expected to stand trial for a capital offence, if the same offence does not carry the death
penalty in the removing State, unless credible and effective assurances against exposing the individual
to the death penalty have been obtained.”
- Chitat Ng v. Canada, Commn. No. 469/91, U.N. Doc. CCPR/C/49/D/469/91 (1994) (HRC).
Reading: General Comment in Regard to the Right to Life, CCPR/C/GC/36
“States parties are required pursuant to Article 6, paragraph 4, to allow individuals sentenced to death
to seek pardon or commutation, to ensure that amnesties, pardons and commutation can be granted to
them in appropriate circumstances, and to ensure that sentences are not carried out before requests for
pardon or commutation have been meaningfully considered and conclusively decided upon according
to applicable procedures” – para 47.
In such cases, the extraditing country is in violation of international human rights – not the sentencing
country.
The right to life and abortion
Case law: The case of Baby Boy, Inter-American Commission on Human Rights, Case 2141, United
States, 1981.
There legality or illegality of abortion under international jurisprudence seems to point to the position
that the unborn do not have a right to life.
Suicide
Haas v Switzerland
Pretty v UK
Next Lecture: Article 7 of the ICCPR
Lecture 8 – March 4th, 2022: The Prohibition on Torture
Article 7 of the ICCPR does not define torture. However, the closest we can get to a definition is
General Comment No. 20 on Article 7
No derogation is permitted from Article 7 – it is a peremptory norm.
“The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to
protect both the dignity and the physical and mental integrity of the individual. It is the duty of the
State party to afford everyone protection through legislative and other measures as may be necessary
against the acts prohibited by article 7, whether inflicted by people acting in their official capacity,
outside their official capacity or in a private capacity. The prohibition in article 7 is complemented by
the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that “All
persons deprived of their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.”
The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of
public emergency such as those referred to in article 4 of the Covenant, no derogation from the
provision of article 7 is allowed and its provisions must remain in force. The Committee likewise
observes that no justification or extenuating circumstances may be invoked to excuse a violation of
article 7 for any reasons, including those based on an order from a superior officer or public authority.
The Covenant does not contain any definition of the concepts covered by article 7, nor does the
Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions
between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose
and severity of the treatment applied.”
Limitations and Derogations
[Presentation by Monica Acayo]
In some instances, states are permitted derogate from certain human rights in some circumstances.
There are certain principles on limitations and derogations in the ICCPR – Article 4 of the ICCPR
provides for this, essentially meaning a temporary suspension of rights (obligations) in times of public
emergencies which threaten public life, which the state has declared.
Some rights cannot be derogated e.g. in Article 7, Article 8 and Article 11.
General Comment No. 20: “The text of article 7 allows of no limitation. The Committee also
reaffirms that, even in situations of public emergency such as those referred to in article 4 of
the Covenant, no derogation from the provision of article 7 is allowed and its provisions must
remain in force. The Committee likewise observes that no justification or extenuating
circumstances may be invoked to excuse a violation of article 7 for any reasons, including
those based on an order from a superior officer or public authority. The Covenant does not
contain any definition of the concepts covered by article 7, nor does the Committee consider
it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the
different kinds of punishment or treatment; the distinctions depend on the nature, purpose and
severity of the treatment applied.”
The move to abolish torture gained formal recognition with the adoption of the ICCPR and has
attained the status of jus cogens.
In 1984, the UN General Assembly adopted the Convention against Torture and other Cruel and
Degrading Treatment. The Preambular Text reads:
“The States Parties to this Convention,
Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world,
Recognizing that those rights derive from the inherent dignity of the human person,
Considering the obligation of States under the Charter, in particular Article 55, to promote
universal respect for, and observance of, human rights and fundamental freedoms,
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the
International Covenant on Civil and Political Rights, both of which provide that no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
 Having regard also to the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the
General Assembly on 9 December 1975,
Desiring to make more effective the struggle against torture and other cruel, inhuman
or degrading treatment or punishment throughout the world,
Have agreed as follows…”
The Convention defines torture in Article 1: “For the purposes of this Convention, the term "torture"
means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.”
(Note the emphasis on the act being done by a person acting in an official capacity, and the purpose
for which it is done.)
General Comment No 20 on the Prohibition lays out the obligations on the state:
The Committee notes that prolonged solitary confinement of the detained or imprisoned
person may amount to acts prohibited by article 7. As the Committee has stated in its general
comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death
penalty in terms that strongly suggest that abolition is desirable. Moreover, when the death
penalty is applied by a State party for the most serious crimes, it must not only be strictly
limited in accordance with article 6 but it must be carried out in such a way as to cause the
least possible physical and mental suffering.
7. Article 7 expressly prohibits medical or scientific experimentation without the free consent
of the person concerned. The Committee notes that the reports of States parties generally
contain little information on this point. More attention should be given to the need and means
to ensure observance of this provision. The Committee also observes that special protection in
regard to such experiments is necessary in the case of persons not capable of giving valid
consent, and in particular those under any form of detention or imprisonment. Such persons
should not be subjected to any medical or scientific experimentation that may be detrimental
to their health.
8. The Committee notes that it is not sufficient for the implementation of article 7 to prohibit
such treatment or punishment or to make it a crime. States parties should inform the
Committee of the legislative, administrative, judicial and other measures they take to prevent
and punish acts of torture and cruel, inhuman and degrading treatment in any territory under
their jurisdiction.
9. In the view of the Committee, States parties must not expose individuals to the danger of
torture or cruel, inhuman or degrading treatment or punishment upon return to another
country by way of their extradition, expulsion or refoulement. States parties should indicate in
their reports what measures they have adopted to that end.
Article 2 of the Convention against Torture imposes an obligation to prohibit and criminalize torture
in municipal law;
Article 5 imposes the obligation to establish jurisdiction over the offence of torture: (a) When the
offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered
in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a
national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such
measures as may be necessary to establish its jurisdiction over such offences in cases where the
alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant
to article 8 to any of the States mentioned in paragraph I of this article. (this provision is meant to
ensure that there are no safe havens for people who commit torture.)
Case law: Guengueng vs. Senegal; CAT CAT/C/36/D/181/2001
[Presentation by J. Nabuyanda]
There is an obligation not to extradite a person to a place where they may be subject to torture.
Case law: Othman (Abu Qatada) v. The United Kingdom, European Court of Human Rights,
(Application no. 8139/09)