The Right to Life

UNIVERSITY OF MALAYA
FACULTY OF LAW
INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW
The Right to Life has been said to be the most basic and fundamental of all rights and therefore it must be binding irrespective of whether or not states have subscribed international conventions containing guarantees of this right and further the non derogability of the Right to Life has a peremptory character at all times, circumstances and situations. Discuss

And here, over an acre of ground, lay dead and dying people. You could not see which was which except perhaps by a convulsive movement, or the last quiver of a sigh from a living skeleton, too weak to move. The living lay with their heads against the corpses, and around them moved the ghastly procession of emaciated, aimless people, with nothing to do, and no hope of life, unable to move out of your way, unable to look at the terrible sights around them… Babies had been born here, tiny wizened things that could not live. A mother, driven mad, screamed at a British sentry to give her milk for her child, and thrust the tiny mite into his arms and ran off, crying terribly. He opened the bundle, and found the baby had been dead for days. This day at Belsen was the most horrible day of my life.

Richard Dimbleby

BBC broadcast from Belsen, 13May 1945



Humeirah F
LGA050031
26th October 2005
Introduction

Thomas Hobbes devised the theory of social contract to rationalize the relationship between Man and the State. John Locke further refined the philosophy by providing limitations to this nexus which according to him, could be dissolved if the government failed in furthering the purpose of the compact. Karl Marx later denied the need for this supreme governing body known as the ‘State’, which was according to him solely an instrument of control at the hands of capitalists. In all these jurisprudential deliberations exists one ultimate objective: to expose Man as being a social creature requiring well-defined limitations to be drawn out over his conduct vis-à-vis his fellow mates. From this thought emanates the notion of the mutual co-existence of rights and duties. Suffice to say that Human rights do not operate unilaterally.

Recognition of the right to life is therefore insufficient. Safeguarding it is equally essential and this implies that there exists a duty on the World, the State as well as the individual to uphold it at all times. After Second World War, the focus of the United Nations was on safeguarding Human Rights which had been blatantly violated during the Holocaust. The most basic and fundamental of rights that could be envisaged was obviously the right to life because it constituted the starting point of all other rights. The right to life is the fundamental right, of which all other are corollaries.

Other international conventions came into being over the years all containing the guarantee of the right to life, directly or indirectly. While State Parties have not always complied with the provisions and have furthered the defense that they have not signed any relevant conventions containing guarantee of this right, the right to life has been acknowledged as a norm of customary international law.

However it must be remembered that the right to life is not absolute and its limits are yet to be fixed by courts and legislatures.




• What is the Right to Life? Is it really basic and fundamental of all rights?

(i) The right to life on the international and regional forefront

All basic international instruments contain provisions relating to the Right to life. The reason why it occupies a primary status is because it is the foundation upon which other rights depend. Unfortunately it is also the right that is subject to most violations.

Examples of universal instruments that uphold the Right to Life are the Universal Declaration of Human Rights 1948 , Convention on the Protection and Punishment of the Crime of Genocide 1948, American Convention on Human Rights 1969 , International Convention on protection of Civil and Political Rights 1966 , Convention on the Rights of the Child 1989 . Regional instruments comprise the American Declaration on the Rights and Duties of Man 1948 , European Convention on Human Rights 1950 , African Charter on Humans and Peoples Rights 1981 , African Charter on the Rights and Welfare of the Child 1990 , Charter of Fundamental Rights of the European Union 2000 . Other lesser known political and legal instruments exist to this effect such as the Universal Islamic Declaration of Human Rights 1981 and the Wu Hsiang Yuan Tse/Paanch Sheel .

While the above similarities exist in the drafting of the instruments, there are also differences which can have considerable impact on implementation measures. Both the declarations of Universal Human Rights and American Rights and Duties explicitly declare a ‘right to life’ whereas only one of the treaties (the ICCPR) does likewise, adding the adjective ‘inherent’ . The ECHR does not declare the right, but presupposes its existence by stipulating, together with the ICCPR and American Convention, that it ‘shall be protected by law’. The American Convention and the African Charter differ from other instruments in defining the right as one to have life respected. Other differences will be pointed out during the course of this paper.

(ii) All-encompassing power of the right to life, revealing its primacy


The wide discretion conferred on individuals to enforce their Right to Life can be effectively illustrated through the cases of Olga Tellis v Bombay Municipal Council and Delhi Transport Corporation v DTC Majdoor Congress . These judgments reveal the complacency of courts favouring complainants who allege its violation, thereby reinforcing the notion of its undeniable importance. The former case involved a complaint made by slum and pavement dwellers against the Bombay Municipal Council subsequent to its decision that they were to be evicted forcibly and deported to their respective places of origin due to road repairs and renovations that had been envisaged. It was alleged by the pavement dwellers that by virtue of Art 21 of the Constitution that since ‘no person shall be deprived of his right to life except according to procedure established by law’, it was constitutionally impermissible to characterize the pavement dwellers as ‘trespassers’ and evict them because their occupation of pavements arose from economic compulsions. In his judgment Hon. CJ Chandrachaud thus explained that Art 21 is to be interpreted widely and that upholding it does not simply mean that life cannot be taken away except according to procedure established by law. Upholding the right to livelihood was also a way to protect the right to life because nobody can live without the means of living. Thus he stated that:

“If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his right to livelihood to the point of abrogation. Such deprivation would not only deny the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed an integral part of the right of life.”

His often-quoted statement that “Human compassion must soften the rough edges of justice in all situations” succinctly summarizes the court’s sympathetic interpretation of the provision on the Right to life. This was also apparent in the case of Delhi Transport Corporation v DTC Majdoor Congress whereby the Supreme Court ruled that the depriving employment to employees of the bus company amounted to a violation of the right to livelihood which related once again to the right to life as stated above. It must be noted that this case was decided on the premise that the salaries of the employees constituted the only means of financial support available to them, the denial of which would be a threat to their existence. Recently however the Calcutta High Court explained that the scope of this right was not to increase one’s opulence but applied only where it was so necessary for the sustenance of a person that such deprivation would be a ‘threat to (their) existence’.

D J De also opines that the right to Life calls for consideration of ensuring quality of life as well. Hence for residents of hill areas, access to road is effectively access to life itself, and so necessity of road communication in reasonable condition was held to be a part of constitutional imperative.’ There are other rights which have been held to be part of the right to life under art 21 of the Constitution of India such as The right to go abroad, the right to privacy , the right to Speedy trial, the right to doctor’s assistance and the right to shelter among others.

(iii) Right to life also signifies a positive duty to protect

Upholding the Right to life also signifies that there is a positive duty to protect people from possible violations of their right. This reasoning emanates from the second phrase used in art 6(1) of ICCPR when it is stated that ‘This right shall be protected by law’. In X v Ireland the Commission did not accept that the State was under a continuous obligation to provide continuous police protection from terrorist activities of the IRA where a specific threat to life existed. Protection had already been provided for an extended period and it would be impracticable to expect this to be indefinite. There was thus found to be no violation of Art 2. But it must however be noted that the Commission did acknowledge the existence of state protection under art 2, the extent of which would be evaluated based on the question of how practicable it would be. Similarly in the ground-breaking judgment of Osman v UK , it was held that Art 2 “may 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.” Such measures should not however “impose an impossible or disproportionate burden on the authorities and “not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent the risk from materializing.” The Court held that the State would be liable where “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual/s from the criminal acts of a third party” and “they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”- this has been termed the ‘Osman test’.

The Osman test has also been applied in subsequent cases during the political unrest in south east of Turkey. In Mahmut Kaya v Turkey the State was found to be in violation of Art 2 for failing to provide protection to Kaya, a doctor who provided medical care to the wounded of PKK, and who thus needed special protection from contra guerilla groups. There was found to be a serious risk whereby previous threats had been made against him due to the help he extended to the members of PKK.

There would thus also be an active duty to protect where facilities must be provide under the aegis of the State in a country such as education and health care, among others. Similarly in Association X v UK the plaintiff parents alleged that failings in the administration of baby vaccination by a State-run scheme had caused severe damage and death to recipients and this involved a breach of the Right to life under art 2(1) of the ECHR. The Commission noted that “(t)he concept that ‘everyone’s life shall be protected by law’ enjoins the State not only to refrain from taking life ‘intentionally’ but, further, to take appropriate steps to safeguard life.”

However it must be noted that despite the right to Life being recognized as basic and fundamental, it is often subjected to a wide variety of abuses and violations, despite its international recognition as being basic and fundamental.

• Common violations of the right to Life

(i) Genocide

The first principal genocide of the twentieth century was the Armenian massacres of 1915 which claimed the lives of 1.5 million Armenians. The Convention on the Prevention and Punishment of Crime of Genocide 1948 which has been subscribed by 130 State Members has not however put an end to further massacres. Victimized groups include those of the Holocaust during World war 2, 400,000 civilians in the Vietnam War between 1965 and 1974; more than 1 million Bengali in Bangladesh in 1971; 150,000 Hutu in Burundi in 1972; 1.5 million Cambodians between 1975 and 1979; 200,000 Bosnian Muslims and Croats in the Former Yugoslavia in 1992; and 800,000 Tutsi in Rwanda in 1994 , the latest one being the Darfur crisis .

The definition of genocide in the Convention is wide and far reaching including any other means of wiping out whole populations, thereby denying them the right to existence/life. Thus lesser known methods of eradicating Ukrainian farmers through forced starvation under Stalin’s rule and Mao’s extermination of 20 to 30 million Chinese also fall under the definition of genocide. The prohibition of genocide is seen today as part of jus cogens. It is noteworthy that the Convention does not contain any measures of implementation and much remains to be done therefore to ensure that the right to life is upheld.

(ii) Ecocide

Ecocide is the killing of an ecosystem. Examples would be the advance of the Sahara system into the Romanian grain-producing region, the erasure and poisoning of farm lands along the Western Front during the World War 1 and the total loss of all trees from Easter island which today is grassland incapable of supporting a large population. Even natural disasters such as storms, earthquakes and the recent tsunami which caused havoc in Bandar Aceh can be classified as ecocides because they carry human finger prints due to exploitation of the environmental resources which cause disturbances and imbalances in nature.

The right to life can thus be denied by events that have environmental consequences. A State may thus be under a positive obligation ‘to take appropriate steps to safeguard the lives of those within its jurisdiction’ which would comprise a duty to protect people from life-threatening environmental hazards. The only case decided under this thread was LCB v United Kingdom where the Court found that there was no breach of art 2 where the State was found to be involved in nuclear tests which, exposure of which according to the applicant resulted in her suffering from leukaemia. The Court preferred that similar issues be dealt with under art 8 which imposed a duty upon States to provide information to citizens where any activities they engage in are potentially hazardous to their health. Thus in Eggan v United Kingdom it was stated that “Where a government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under art 8 requires that an effective and accessible procedure be established which enables persons to seek all relevant and appropriate information.”

In Guerra v Italy the Court held that the State had violated art 8 by failing to inform residents of a town situated near a plant producing fertilizers of the potential risk to their safety due to the plant’s toxic emissions. Although a European Directive, requiring mayors to inform residents about any environmental hazards present in the locality had been incorporated into Italian law in 1988, no information had been produced as of195, when the case was brought. The fact that a number of workers at the factory had died suffering from cancer due to the factory’s toxic emissions was deemed admissible. It is noteworthy that the court still held that raising this provision was unnecessary. Complaints under art 2 have so far been limited to toxic emissions denying legitimacy to other health hazards such as passive smoking, CJD , SARS infections or even inadequate infrastructural facilities such as unsafe road networks.

(iii) Imprisonment

Prisoners are particularly vulnerable to violation of their rights because they are exposed to regulated surroundings. Thus their right to life is deemed to be ‘in the hands’ of the State which therefore has a positive duty to protect it . This explains why the State has a duty to provide explanation if death occurs whilst in detention.

The State has a duty not only to protect prisoners from actions of state agents but also from other inmates. In 2002, the United Kingdom was found to be in violation of art 2 for failing to prevent the death of a prisoner who shared the same cell of his assailant . Christopher Edwards was tentatively diagnosed with mental illness in 1991. He was arrested in 1994 and put in prison for approaching women in the street and making inappropriate suggestions. Richard Linford, who had a record of violent and aggressive behaviour, including previous assault on a cellmate, was put in the same cell as him the next day. Edwards was found stamped and kicked to death in his cell the next day. Moreover the emergency call system was found to be malfunctioning. The Court found that information on the behaviour of Linford was available to the prison authorities and they had thus been careless in assigning the same cell to him. The Court concluded that failure and inadequacy in risk assessment amounted to a violation of art 2 .

An interesting question considered by the Commission was whether it was under a duty to forcibly feed a prisoner on hunger strike to save his life. In concluding that this would not constitute a breach of art 3 in the case X v FRG the Commission noted that the obligation under art 2 to secure the right to life ‘should in certain circumstances call for positive action on the part of the contracting parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody.’ Thus sanctioning force feeding to safeguard the right to life exposes the supremacy of that right over others although it is still questionable whether or not this policy trespasses over the will and physical integrity of a person to do what he pleases with his life.


(iv) Disappearances

The United Nations Working Group on Enforced or Involuntary Disappearances has identified the right to life as one of the ‘principal human rights’ denied to a disappeared person . This is because an individual in detention whose whereabouts are not disclosed is particularly vulnerable to being killed. However, categorizing disappearances as a violation of the right to life presents some problems as the victim might still be alive no matter how much time has elapsed from the disappearance making it improper for an international body to presume the individual has died in custody and consequently accuse the State of murder. Hence no violation of art 2 was found when Cyprus complained to the Commission that 3000 Greek Cypriots who had last been seen in the Turkish occupied area, were still unaccounted for and therefore might have been killed. The Commission had even concluded that a number of the missing Greek Cypriots had indeed been taken prisoners by the Turkish Army. However while the Commission held that there was a presumption of Turkish responsibility for the fate of persons shown to have been in Turkish custody, it was unable to determine whether the missing prisoners had been deprived of their life.

In subsequent cases however, the Court has been more willing to decide whether missing persons have died based on substantial circumstantial evidence. In Timurtas v Turkey, the Court identified that, to determine whether a person could be presumed to have died, the period of time elapsed since a person has been held in detention (in this case 6 and a half years) and the lack of co-operation from the Government in providing relevant information, should be taken into account. Similarly in the case of Tas v Turkey , the State had failed to provide records of any kind showing where the applicant’s son was held after he had been taken into custody. Turkey also claimed that the prisoner had escaped from custody. However the Court found that the report of the alleged escape was unsubstantiated, not detailed enough, and the signatories could not be traced. Further given the period of time that has elapsed since his disappearance and the political unrest in south-east Turkey, the Court considered that it must be presumed that the applicant’s son had died.


• Is the right to life peremptory at all times, circumstances and situations?

A right can be peremptory if it carries the status of a “jus cogens” norm. “Jus cogens” stands for ‘compelling law’ and this signifies that it is non-derogable in all circumstances except where it there is a clash with another norm of equal status. Its origin lies in natural law. The four established Jus Cogens norms, which are non- derogable and figure in the ECHR, American Declaration and ICCPR are the right to life, the freedom from slavery, the freedom from inhuman and degrading treatment and the principle of non-retroactivity of penal laws. The basic requirement of norms of jus cogens is that they be universally recognized and accepted as norms of customary international law. Hence even if not states are not signatory parties to relevant conventions containing guarantees of the rights they are under a duty to uphold them. Art 53 of Vienna Declaration on the Law of Treatises recognizes the peremptory nature of such norms.

To understand the relevance of accepting certain norms as Jus Cogens, the case of United States v Iran is an example of where it was held that there is a core of sacrosanct rules that must be respected. In this case the ICJ held that the UN charter and the Universal Declaration of Human Rights were Jus Cogens.

The force of Jus Cogens has been observed even in some instances where the international court is unable to render a judgment. For example, in the case of the destruction of an Israel Civilan airliner that had stayed into Bulgarian Air space, the court held that it lacked the required jurisdiction to proceed with the merits. Nonetheless Bulgaria paid compensation, pursuant to a recognition of a duty owed to the world community.”

The application of the emerging Jus cogens towards the safeguard of the right to life will result in the higher degree of protection than is presently afforded by the non-derogability provision in art 4 of ICCPR or article 11 of European convention. Hence it is essential to consider the future application of jus cogens because this norm will increase in stature.

The right to life can also be deemed an obligation erga omnes, a term attributed to ‘rights which are binding on the community’ These obligations hold such status because all states have an interest in the protection of the rights involved and are thus binding irrespective of whether states have signed any relevant treaties containing the guarantee of this right.

However the right to life is not peremptory at all times, circumstances and situations. International and regional instruments provide for the death penalty thereby proving that the right to life is not absolute. Moreover art 2(2) ECHR contains clear-cut provisions that allow the right to life to be derogated from and it is clear that in emergency situations, other rights which are corollaries of the right to life can be derogated from. Furthermore the use of the term ‘arbitrarily’ meaning that life cannot be taken arbitrarily, suggests that there exist lawful instances where the right to life can be derogated from. These will be analysed in turn.


1. Death Penalty

All the treaties other than the African Charter expressly save the death penalty. Beyond that, ICCPR, American Declaration and African Charter prohibit ‘arbitrary’ deprivation of life; The European Convention differs in prohibiting ‘intentional’ killing and in specifying (in addition to the death penalty), exceptions to that prohibition. Both ICCPR and American Declaration restrict the imposition of death penalty to the ‘most serious crimes’, require it to be imposed only by a ‘final judgment’ of a ‘competent court’ in accordance with non-retroactive laws, confer a right to seek ‘pardon or commutation of sentence’, and provide that amnesty, pardon or commutation of sentence ‘may be granted in all cases’. Both these treatises also prohibit the imposition of the death sentence on persons who are below the age of 18 at the time of commission of the crime, and its execution on pregnant women. The American declaration goes further than the ICCPR: it expressly confers a right to seek ‘amnesty’ as well as pardon or commutation of sentence, and prohibits the imposition of capital punishment while any petition for such relief is pending decision; in addition to persons under 18, it also exempts persons over 70; it prohibits capital punishment for ‘political offences or related common crimes’; and it seeks to encourage progressive reduction of the death penalty by prohibiting its extension to new crimes, or its re-establishment once it has been abolished. ICCPR appears to exhibit a bias in favour of abolition, reinforced by the provision that ‘nothing in this Article shall be invoked to delay or prevent’ it. The European Convention is silent on all these matters; for the death penalty to be legitimately carried out, it is enough for it to have been imposed by a court, following conviction of a crime for which it is provided by law. The drafting of these provisions betrays the lack of uniformity of recognition of the right to life.

Several provisions exist to the effect that the right to life can be abrogated during the imposition of the sentence of the death penalty. Examples would be art 6(2) ICCPR , However it should be noted that the passing of the 2nd Optional Protocol by the UN General Assembly to the ICCPR shows that the objective is more towards abolishing it in the long run. As for the American Convention on Human Rights, in addition to substantive and procedural limitations mentioned in Art 6, there are three further constraints on the use and imposition of the death penalty which show a gradual tendency to abolish the death penalty. Recently the Protocol to the American Convention also abolished the death penalty. As for the ECHR art 2(1) allows it but this should be considered in the light of the 6th Protocol that abolishes death penalty .

But while most countries are willing to uphold the right to life by establishing a progressive program for the abolition of the death penalty, others are still stubbornly clinging to their draconian laws and committing grave violations of Human Rights. These countries are not parties to the Optional Protocols putting a definite end to the practice of Capital punishment. Thus in the UK for example, the death penalty remains the sentence for treason and in England and Wales for piracy with violence. The imposition of this sentence is however limited to ‘most serious crimes’ and also subjected to the fair trial guarantee in art 6 and the prohibition of retroactive criminal punishment in art 7 as well as to the non-discrimination requirement in art 14. This guarantee certainly does not signify that the right to life is upheld absolutely but it provides reassurance that the fundamental right is treated with the utmost care.

Art 1210(1) of the Iranian Civil Code states that persons under 18 may be prosecuted for crimes in the same manner as adults, without special procedures and may be held in detention with adults. Thus in June 2001, 13 year old Azizullah Shenwani was sentenced to death when in November, the Iranian authority reportedly informed his family that he had been arrested, charged with drug trafficking and sentenced to death. This was done following a phone call to his family in Pakistan to whom he complained of being kidnapped from Pakistan to Iran to work in a factory. On 15 August 2004, Atefeh Rajabi, reportedly aged 16 was hanged. She was sentenced after a grossly unfair trial during which she was publicly insulted. Doubts regarding her mental balance were discarded during the course of sentencing her to the death penalty.

The provision in the Iranian Civil Code goes in stark violation of art 6 and 37 of Convention on the Rights of the Child (CRC) to which Iran is a State party. The execution of children also breaches customary international law. In the last 6 years only 5 countries are known to have executed child offenders.

The fact that the ICCPR, the ECHR and the American Convention all tolerate the death penalty to be applied even though to a limited extent means that the right to life is not absolute. It is an acknowledgment that the death penalty is an exception to the Right to life. The Human Rights Committee interpreted “most serious crimes” as meaning that the death penalty is quite an exceptional measure. However as it can be seen through
the examples of Iran and USA, although these countries are parties to the ICCPR, there have been violations of the right to life by sanctioning the imposition of death penalty on child offenders. Such outrageous violations of the right to life should not however be accepted as denying it its basic and fundamental characteristic.

The following 8 limitations on the application of death penalty are required at this juncture by the international human rights law.

1. The nature of the offence: Since the death penalty may be imposed only for most serious crimes, it must be applied only in exceptional cases. Murders vary so much in heinousness (euthanasia and domestic crimes of passion to contract killings and hostage executions) so that any automatic infliction of death sentence on murderers would infringe this rule.
2. Fairness of the trial: Those sentenced to death are predominantly poor and illiterate, and the spectacle of them being tried and sentenced without legal representation or by newly admitted counselors with questionable competence should be discouraged, even if the nation is financially incapable of provising such adequate recourse to justice. In MBenge v Zaire the Human Rights Commission ruled that violation of any due process rights in Art 14 of covenant in a capital case is a breach of Art 6(2) because this would mean the sentence would be imposed contrary to the provisions of the covenant. The state was then under a duty to vacate a death sentence passed in absentia and to compensate Mbenge-probably for shock since he first heard of his trial and conviction when he read it in the newspaper.

It is widely accepted that an execution should not take place in any period during which there is a real political prospect that death penalty will be abolished. Thus death sentence were committed in Britain in 1948 during a period when punishment was divided over abolition, and executions suspended in Jamaica between 1977 and 1981 while a Royal Commission studied the issue.
3. Rights of Appeal: Wrongful conviction of Birmingham 6, Guildford 4 and McGuire 7 has ensured that the gallows will not return to Britain. In Jamaica the Royal Commission reported in 1981 that nearly 20 percent of victims of death penalty innocent dreadlocked Rastafarians convicted on unreliable eyewitness evidence.
4. Petitioning for mercy: Under 6(4) a prisoner must be accorded right to seek pardon or communication of sentence after appeals to court exhausted. Essential to provide extra legal forum in which issue of prisoner may be resolved as a matter of common humanity. There may be mitigating features which make execution a punishment disproportionate to his moral culpability. Little attention is paid to procedure of clemency petitions.
5. Stays of executions pending appellate and clemency procedures: governments capable of inflicting death penalties often resort to dishonest and devious ways of carrying them out. Trinidad, for eg, hanged Black Power leader Michael X a few hours after serving execution warrant late at night, when court registry closed and lawyers asleep. In 1994, it deliberately executed a prisoner named Glen Ashby while the court was considering his application for a stay and after AG had given an undertaking to PC the previous day that execution not proceed.
6. Exempted persons: Pregnant women are normally exempted from the punishment. But Iran, for example, still engages in the practice. Only additional Geneva protocols forbid executed of women with dependent infants: state practice variously allows execution after delivery (UAE, Turkey, South Korea), 40 days after birth (Indonesia), 2 months after birth(Libya and Egypt).. Yemen allows 2 years of lactation before orphaning child. There is a clear rule of international law forbidding execution of children under 18 at commission of offence. US has by 5-4 majority permitted killing of juveniles who have offended laws at ages of 16-17.
7. Delayed executions: What is termed ‘The death row phenomenon’ means that the very fact of contemplating death over an extended period of time make it unlawful to execute a prisoner who held for substantial period under death row conditions, because it amounts to torture. In Pratt and Morgan v Ag of Jamaica Senior Ct of Commonwealth it was decided that no execution would take place in its jurisdiction if prisoners on the death row were still in jail for more than 5 years after the sentence was passed.
8. Cruel and inhuman executions and preliminaries: In China procedures for those undergoing capital punishment are designed to keep the prisoner alive while organs (mainly kidneys and corneas) are removed for subsequent transplant to ‘worthier citizens’. According to the practice of such countries defying international norms, such executions as well as those in public are regarded as essential for deterrent purposes in others but severely condemned by international bodies.

What national and international courts are increasingly prepared to do is make executions are difficult as possible, by applying Human Rights principles so as to limit cases of offenders. The role of international law at this stage of its development is to play Portia: the state may have its pound of flesh, on the condition that it shed no drop of blood. A set of safeguards, as those pointed above have developed which limit the applicability of the death penalty in retentionist countries. The international law status of these safeguards follows from a reference to them in Art 3 of Geneva Convention 1949. This was recognized by ICJ in Nicaragua v US as expressing customary international law applicable in times of war and insurgency, so it follows that this rule must apply with all the more force in peacetime.

The IA Court of Human Rights addressed this question in its advisory opening on the validity of Guatemala’s intention to extend reservation to art 4(4) of the same article 4 of American Convention which deals with Right to Life. When Guatemala ratified the convention on 25th May 1978, it held reservation to art 4(4) because art 54 of Guatemala constitution only excludes political crimes from Death Penalty. After the Coup d’Etat on 1st July 1982 by regime of General Rios Montt, a court was created to deal with subversive activities. 18 crimes which were previously not punishable were unveiled leading to imposition of death penalty. Reservations are therefore valid provided that they are not incompatible with the purpose and objective of the treaty.

Another way of looking at the morality of imposing the death penalty on ‘criminals’ is surprisingly from a stance of upholding the right to life. The Tanzanian Supreme Court decided in 1995 that the mandatory death penalty, while cruel and degrading, was none the less constitutional because it was ‘reasonable and necessary measure to protect the ‘right to life’ of law abiding citizens.

2. Provisions in art 2(2) ECHR

Art 2(2) of the ECHR bears concrete proof that the right to life is not peremptory at all times, circumstances and situations . The rationale behind these exceptions is that the use of force is justified when it enables the State to maintain law and order, a societal interest that outweighs an individual’s right to life. However although the exceptions in art 2(2) exist, the Court and Commission have held that they must be strictly construed .

Art 2(2)(a) includes using force for self-defence as well as for the defence of others. In the case of Wolfgram v Germany the police arrested five men who they reasonably believed were on their way to carry out an armed robbery, and were armed for the purpose. When one of them detonated a grenande, the police responded with lethal force, opening fire and killing two of them. The Commission held that the use of force was justified both in terms of self-defence and to effect a lawful arrest. The force used was deemed no more than ‘absolutely necessary’.

Farell v United Kingdom raised issues under art 2(2)(b) where it was argued that there had been a violation of art 2 not only because of the killings carriedout by the soldiers but also because of the negligent planning of the whole operation. The British Army had received information that a bomb attack on a bank was going to be carried out by three men. When the four soldiers spotted three men they assumed they were terroritsts in the course of an attack. In fact they were robbing two other individuals, who were depositing money in the bank’s night safe. The soldier who shouted at them to stop caused them to flee which prompted the soldiers to open fire with the intent to kill in order to effect an arrest. The three men died. The jury in Northern Ireland found that the force used was reasonable since the only conceivable thing to do was to open fire to prevent their escape. The case reached a friendly settlement so that nited Kingdom did not have to admit any breach of art 2, claiming that the killing of the men was an unfortunate mistake.

Under art 2(2)(c) it was held in Stewart v United Kingdom that the term ‘riot’ has an autonomous Convention meaning. This would also apply to term ‘insurrection’ but since neither the Commission nor the Court has attempted to define these terms, they still remain contentious. This should therefore be decided on the facts of each case. In Stewart, the Commission stated, “an assembly of 150 persons throwing missiles at a patrol of soldiers to the point that they risked serious injury must be considered, by any standard, to constitute a riot”. The Court and Commission have also noted that in times of riots, the right to life is more susceptible to violations and it is thus crucial that any force is exercised with the utmost caution. Therefore the ‘absolutely necessary’ test has been strictly applied.


It must be pointed out that there are other cases in which the taking of life does not usually give rise to liability under European national law. Examples are killings in self-defence committed by private persons (and hence not within art 2(2) and accidental deaths in sporting contests. More problematic, and arguably not allowed by art 2, are laws that permit a private person to use deadly force to defend his property or to effect a citizen’s arrest. Causing death by omission also generally escapes liability. All this further shows that the right to life is not peremptory at all times.

What constitutes force that is ‘no more than absolutely necessary’ has occupied the minds of jurists. The use of the term ‘absolutely’ has been construed to signify that it should be restricted to particular situations under the doctrine of proportionality. This means that the aim pursued must be in proportion to the threat forwarded. For the force to be absolutely necessary, the use of lethal force must be ‘strictly proportionate’ and the state operation to achieve one of the aims must have been ‘planned and controlled by the authorities so as to minimize, to the greatest extent possible, recourse to lethal force. ” Both factors have proved to carry considerable debate in every case that has come forward before the Commission and the Court because of the need for a subjective evaluation. Determining what is really ‘absolutely necessary’ may therefore give rise to situations where judicial decisions may turn on political factors rather than upholding Human Rights.



3. What happens to the status of the right to life during times of emergency?

The balancing of interests between those of restoring order in a state of emergency while at the same time respecting fundamental human rights can be troublesome. What makes it worst is that almost half of the States of the international community are not parties to the international treaties on human rights which establish a legal regime for emergencies, thereby UN monitoring organs of the status of those rights. Thus Art 4 ICCPR refers to ‘a public emergency which threatens the life of the nation’; the Art 15 ECHR refers to a “War or other public emergency threatening the life of a nation” and Art 27(1) American Convention of HR to a “War, public danger, or other public emergency that threatens the independence or security of a State party .” The African Charter does not contain any derogation clauses. There is thus a dangers that this absence will be used to infer that the Charter implicitly allows states to invoke the customary law exception of state of necessity to derogate from the right to life . Whatever be the gravity of the emergencies certain rights remain cannot be derogated from. The list of rights which are non derogable is not however similar in all the instruments: art 15(2) of the ECHR has four rights; art 4(2) of the ICCPR seven; and article 27(2) of the American Convention eleven. However among all these rights the right to life is the only one common to all.

The declaration of a public emergency and the derogation of Human Rights are perfectly lawful under the instruments provided they the situation calls for it. Emergencies were thus proclaimed in Chile, Uruguay and Peru due to terrorist activities and economic crises; in Peru due to Natural disasters; in Nicaragua due to external aggression; in Jordan due to the State of war in the Middle East and the refugee problem; and in Uruguay due to subversion.

The emergency which justifies derogating measures must thus be of an exceptional nature. A state which wants to derogate from some fundamental Human Right in a situation of emergency according to the doctrine of necessity must prove that the derogation is necessary and proportionate to the threat. (principles of proportionality)

In other words, not every emergency even if legal under municipal law, is legitimate under the covenant; it must attain a certain degree of gravity. The state of emergency declared in Chile was considered not to be justified by any circumstances. In reviewing the 1981 Chilean report several members of the Committee noticed that the Government of Chile was continuing “without any objective justification to apply measures intended for exceptional conditions of internal unrest. ” Similarly when Chile presented its 2nd report in 1985, the majority of the committee found that at that time the emergency was not justified under Art 4. In a rather strong statement several members of the committee said that “what was called an emergency in Chile had nothing to do with what was intended by the same term in Art 4”. On this occasion Chile adduced the existence of terrorist activities and the world economic situation, which are having an adverse effect on the country, as justifications for the state of emergency. Under Art 4(3) Chile was deemed to have failed to give notice of derogation as required.

One of the elements that the Committee underlined in its general comment on Art 4 and its practice was that the concept of “public emergency” has a temporary nature. One of the greatest problems in situations of emergency is the permanent character that derogations assume in some countries; in other words the maintenance of the derogating measures for a protracted period although the emergency has ended. This is called institutionalization of states of emergency.

The main features of the Emergency envisaged in the treatises:
1. The emergency must be actual or at least imminent: recognized first time in Greek case.
2. Its effects must involve the whole population. But the question of whether a state of emergency in one part of the territory affecting the whole nation against an emergency in one part of the territory and only affecting that part of the nation is legitimate is still contentious.
3. The threat must be to the very existence of the nation: in Lawless case Prof Ermacora construed emergency under Art 15(1) in a strict way, saying that when organs of state are functioning normally as in Ireland, no grave threat to the life of nation. However majority of the committee ruled otherwise.
4. Declaration of emergency must be a last resort
5. Declarations of emergency must be a temporary measure. In countries like Malaysia after the racial conflicts and the proclamation of a state of emergency, no steps were taken to remove it even after things had calmed down.

Despite the existence of rights that cannot be derogated from even in times of emergencies, gross violations of the right to life are beyond control because of the above lack of clarity over the definition of ‘emergency’ and hence the resulting safety measures expected to be implemented.

(v) What is meant by “Arbitrary”?

Another proof that the right to life is sacred and inviolable at all times and circumstances is evident by the recurrent sentence used in Art 6(1) of ICCPR, Art 4 American Convention, Art 4 African Charter when it is stated “no one shall be arbitrarily deprived of life”. Although this carries a positive duty to protect life it also signifies that the right to life is not absolute because it can be ‘violated’ whenever it is considered lawful. It is thus indirectly recognized that it is sometimes legitimate to sacrifice an individual’s right to life. The earliest national statute prohibiting the arbitrary deprivation of life spells this out clearly:

“No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land.”

Arbitrarily could mean ‘illegal’ or ‘in manner contrary to law’ or ‘unjustly’, ‘contrary to justice or law’, ‘summarily’, ‘without due process of law’ or ‘pursuant to national law’ which conflicted with natural law or international morality. To clear such ambiguities, art 2 ECHR has been drafted to replace the word ‘arbitrarily’ by ‘intentionally’.

Some illegal arbitrary instances of deprivation of life:
• Summary Executions: eg coup detat in Guatemala
• Extra Judicial executions and involuntary disappearances (while summary killings may have some appear legal, extra judicial execution along with involuntary disappearances are clearly not.
• Law enforcement abuses of power: s65 Uganda Penal Code requires officer detailed to disperse an unlawful assembly first to make a public proclamation requiring all persons illegally assembled to disperse immediately. If they do not officer “may do all things necessary for dispersing the persons so assembled, or for apprehending them or any of them.” If any person makes resistance the officer “may use all such force as is reasonably necessary for overcoming such resistance and shall not be liable in any criminal or civil proceeding for having by the use of such force, caused harm or death to any person.” South Africa: 1970-1979:1273people killed by police in their execution of their duties. In Indonesia authorities also publicly acknowledged that with first half of 1983 special army squads killed 500 suspected criminals in a shoot to kill basis, idolizing the killers as “guardian angels”
• Military Excesses: eg war


The above examples show beyond doubt that the right to life is not peremptory at all times, circumstances and situations. There exists also certain grey areas whereby the limits of the right to life have not been clearly defined so that philosophers are still strangling over whether the right to life is being violated or not. Thus although the right to life is admittedly basic and fundamental, it is yet completely incomprehensible. Below are exposed some examples.

a. Abortion

Abortion is a contentious within the context of the Right to life. The question that has preoccupied the minds of great philosophers and jurists is when exactly does the right to life begin so as to know the time at which the duty to protect it arises. Art 6 ICCPR is silent on the question of abortion, although during the drafting stage efforts were made to include within its ambit human life ‘from the moment of conception’ or ‘at any stage of its development.’

There is thus no clear or unequivocal support for the right to life of a fetus. This is pursuant to the philosophy that rights are not handed out by edicts but are corollaries of an entity’s nature. Rights give the freedom of action and a fetus cannot be expected to act alone and is thus denied ‘rights’ per se. The American Declaration on the Rights and Duties of Man, the Universal Declaration of Human Rights, the European Convention on Human Rights and the African Charter on Human Rights all employ the term ‘human being’ and ‘everyone’ when it refers to the right to life. The American Convention on Human Rights is the only exception; it refers to the right to Life which it says ‘shall be protected by law, in general from the moment of conception’ . None the less its attempt to protect human life from the moment of conception is qualified by the phrase ‘in general’.

In Paton v UK a father’s complaint that his wife had a termination against his wishes was rejected. The Commission had to consider whether art 2 (a) conferred absolute protection to the unborn child (b) conferred limited protection to the fetus or (c) conferred no protection at all. The latter was rejected because it was too strict an interpretation. As for (a) conferring absolute protection would imply that the right of life of the fetus would have to be upheld even if it endangered the life of its mother and this would be inconceivable and impracticable. The commission however stopped at this evaluation noting that the extent of which art 2 should grant protection to the fetus would depend on the particular facts of the case.

The Baby Boy Case is the only case in which the Inter-American Commission on Human Rights (IACHR) examined the meaning of Art 1 of the American Declaration. The IACHR resolved that the US had not violated the Declaration by way of decision of Roe v Wade. The Commission concluded that the legislative history of the Declaration did not support the view that Art 1 intended to cover human life from conception. When this matter went to the ECHR its position was not sufficiently definite to have concrete bearing on abortion rights – Private life under Art 8((2) did not encompass the right to abortion. Majority of commission took the view that private life or one’s personal sphere is limited and that “pregnancy cannot be said to pertain uniquely to the sphere of private life.” Noting that abortion is permitted if the health or life of the mother is in danger and that the mother is exempted from sanctions for an abortion performed by a doctor in the first 22 weeks, the Commission concluded that there was no violation of Art 8. However the implication of this discussion seems to be that if there were to be an absolute prohibition of abortion there would be a violation of Art 8.

Similarly, the Tennesse Frozen Embryo Case involved a dispute between a couple over seven frozen embryos created extra corporeally by in vitro fertilization. The Court was asked to rule on the question of the custody of 7 embryos. The wife asserted that she should be allowed to use them for future implantation for having children, while the husband argued nothing should happen to them without his consent. He also objected to implantation in wife and other couples by donation. The judge presiding over the case stated that: “Human life begins at conception.” Thus the Court held that unless the embryos were implanted, their lives would be lost. It was in the best interests of the embryos that they should be available for implantation to assure them the opportunity for their birth. Temporary custody was thereby granted to the wife. Ironically this case goes to show that more protection is accorded embryo in vitro than an embryo in vivo.

The law recognizes that a woman should not be sentenced to death is she is with child because child cannot be blamed for deeds of the mother. This is a reflection of the idea that the child does have a right to life even before being born.

One can conclude that the international human rights perspective, abortion is not an important issue in the context of the Right to life. More often not, abortion together with other methods of family planning are discussed in the context of material welfare and family planning. Hence human rights declarations have stressed that “all couples and individuals have the basic rights to decide freely and responsibly the manner and spacing of their children and to have information education and the means to do so. (Teheran Proclamation on HR), UN declaration on social progress and development. Other international instruments deal with the question of pre natal and post natal protection as opposed to the RTL of the unborn.
There is also a sequel to the issue of abortion in the context of the right to life. If the fetus is denied the right to life, then the argument that surfaces is whether the mother can exercise her right to life since it is her body and she can do what she pleases with it, thereby indirectly controlling the fate of the unborn child.


While it is undeniable to admit the omni presence of the right to life in most convention and declarations, the implementation of the laws and principles remain deplorable and lack homogeneity. In the case of abortion for example, while the ACHR clearly refers to the protection of life from ‘the moment of conception’, the Commission commented that the purpose was to reflect the diversity of national legislations, some of which banned abortion while others did not. In consideration of this diversity, it is argued, the Commission affirmed that the inter-American system had undertaken to respect states’ “margin of appreciation” to decide on whether to ban abortion and other methods of pregnancy interruption outright, partially, or not at all. It refrained from setting a regional standard in this area. This second view is inspired by a pragmatism that acknowledges the present limits of international human rights law, which has not yet explicitly enshrined women’s positive right to reproductive health, including access to abortion, in a treaty. Thus, this approach goes no further than to determine whether the current text of Article 4(1) ACHR is likely to impose a regional standard (for the Americas) on the prohibition, regulation, criminalization, or recriminalization of abortion
The IACHR’s position that it would not get involved in the domestic law of Convention parties is similar to that of other regional human rights courts, such as the European Court of Human Rights. Though it was not called on to examine whether the foetus has a right to life “from the moment of conception,” the European Court held that it should refrain from interfering in the internal affairs of a state as they concern access to information on reproductive health and abortion. In Open Door and Dublin Well Women v. Ireland , the Court ruled that a Supreme Court of Ireland injunction prohibiting a women’s centre from distributing information on abortion services abroad contravened the freedom of expression provisions of Article 10 of the European Convention on Human Rights and could not be upheld because it did not constitute a reasonable infringement of this right in a free and democratic society. The European Court further ruled that this restriction posed a threat to the health of Irish women. It refused to rule on the Irish government’s argument that the foetus is encompassed by the “right to life” as contained in Article 2 of the European Convention.
In summary, all evidence suggests that the “regional courts“ of justice will avoid deciding the matter of whether the fetus has a right to life, not because they consider the instruments unclear on this point but out of respect for the margin of appreciation of sovereign states. This position is consistent with the drafting history of Article 4(1) ACHR. The comparison between the positions of the Inter-American and European human rights systems is eloquent in showing how the status of legislation in Europe is no less diverse or contradictory than in the Americas. Still, the right of each state to interpret the scope of the right to life after its own fashion is slim consolation for women living in countries where abortion is banned or otherwise off limits.


b. Euthanasia

The reason why euthanasia involves the consideration of the right to Life is because what is sought during voluntary euthanasia involves the exercise of the right to die, which is its corresponding right.

The word euthanasia comes from the Greek term meaning “good death”. It is the intentional killing by act or omission of a dependent human being for his or her alleged benefit. More specifically it is the deliberate and intentional killing of a human being by a direct action, such as a lethal injection, or the failure to perform even the most basic medical management such as the provision of nutrition and hydration, necessary to maintain life.
Perhaps the earliest reference to what is today understood to be euthanasia was made by Hippocrates (circa 400 B.C.) in the Hippocratic Oath:

“I will give no deadly medicine to any one if asked, nor suggest any such counsel”.

This was an outright rejection of the idea of voluntarily ending someone’s life, irrespective of the circumstances. Although assisted suicide has long been tolerated in Switzerland and the Netherlands (provided it adhered to a strict set of guidelines pertaining to the patients mental competency to take an informed decision and the unavailability of satisfactory palliating treatment), it is only in the recent decades that there have been concerted efforts to make legal provision for euthanasia. Australia’s Northern Territory was the first state to enact euthanasia in 1996 . In 2000, the Netherlands legalized physician-assisted suicide, followed by Belgium in 2002.

Euthanasia can be classified into three broad categories: voluntary euthanasia is when the patient explicitly requests that action be taken to end his life (active), or that life-saving treatment be stopped (passive), with full knowledge that this will lead to his death. Non-voluntary euthanasia occurs when administration of life-prolonging measures and resources to a patient are withheld without the patient's knowledge or approval that death will follow. Involuntary euthanasia is when a patient's life is ended without the patient’s consent. The patient cannot oppose to the taking of his life, because he usually is unconscious, unable to communicate, or is too sick and weak to be aware of what is happening or to take any action on his own behalf.

 Voluntary Euthanasia

This is the truest and fullest form of euthanasia wherein the individual requests euthanasia - either during illness or before, if complete incapacitation is expected (coma would be an example). Euthanasia in these cases differs from suicide by existing only within the context of the amelioration of suffering in the process of death. It is assumed that the patient requesting to end his life is mentally competent to make such a request, and that decision is informed and free (i.e. not under duress from any third party). It is also assumed that effective palliative care is not available.

The issue of voluntary euthanasia raises a very sensitive debate concerning the definition of the right to life. Proponents to voluntary euthanasia argue that the process of dying is part of life and since the right to life is a right to life with a minimum quality and value, people have a right to die in a proper and dignified way. This implies that if the dying process is unpleasant, people should have the right to shorten it. If it is assumed that the right to life as a discretionary right, then human beings are sovereign over their lives, and therefore can waive his right by voluntarily choosing to die.

It is argued by others that the Articles on the Right to Life in the various conventions do not imply the right to death but simply prohibits others from intentionally taking one’s life away. It is said to be a mandatory right, and it is necessary that a human being exercise this right in only one way, and have a duty not to take his or her own life and not to co-operate with others in taking his or her own life.

It is to be noted that some countries make voluntary (active) euthanasia by means of assisted suicide unlawful. For instance the United Kingdom Suicide Act of 1961, in spite of making it legal for people to take their own lives, makes it illegal to help someone commit suicide, although it is argued by some that this provision is really there to make it impossible to escape a murder charge by disguising it as a suicide.

In Pretty v United Kingdom , the applicant, Diane Pretty, was diagnosed with Motor Neurone Disease. Her condition grew steadily worse until she was paralyzed from the neck down and completely dependent on others. She wanted to die but to do so would require the help of her husband, which was made illegal under the Suicide Act. After immunity from prosecution was refused by the Department of Public Prosecutions, the Divisional Court and later on the House of Lords, Ms. Pretty appealed to the European Court, arguing that the prohibition against ‘deprivation of life’ set out in Article 2(1) of the ECHR is designed to protect individuals from third parties, not from themselves. According to her, art 2 therefore gave an individual not only the right to life but also the right to die. The Court held that:

“Article 2 cannot, without distortion of language, be interpreted as conferring the diametrically opposite right, namely 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”.

The court however pointed out that Ms. Pretty’s argument that not reading a right to die in Art 2 would make all States allowing assisted suicide practices in breach of the Convention was not an issue under scrutiny, but simply that it had ruled only on whether the UK Suicide Act violated art 2. As of yet, there have been no cases brought before the European Court challenging the compatibility of State laws allowing assisted suicide with art 2 of the ECHR.

 Non-voluntary euthanasia

This occurs when an individual lacks sentience (in a coma, for example) and hence cannot decide, or distinguish, between life and death; such a person cannot give consent or cannot give informed consent. It is often done when resuscitation is not expected, or after severe brain damage that renders a person incapable of making life decisions. It is argues that non voluntary euthanasia is such a logical extension of voluntary euthanasia that the moral or legal acceptance of voluntary euthanasia should entail a similar acceptance of non voluntary euthanasia. The rationale put forward to support this argument is that once it had been decided that taking life provided a benefit to one whose quality of life had led him/her to ask for death, it follows that it is discriminatory and unfair to withhold that supposed benefit from others in a similar situation, just because they did not or could not express their wish to have their lives taken away. This argument leads to another sensitive issue: if one cannot express one’s wish to have his/her life taken away, then what are the criteria used to determine who takes the life/death decision and what are the set of criteria used to determine whether the patient in question has reached a stage where it is more beneficial to have his/her life ended? Although there have been numerous attempts to define such criteria, no consensus has been reached on the issue, and discussion of the merits of these criteria is outside the scope of this paper.
In Widmer v Switzerland , the applicant alleged that his father had died overnight in a hospital as a result of hospital personnel withdrawing life sustaining treatment. His argument was based on the fact that Swiss law did not protect individuals from passive euthanasia, and therefore violated Art 2 of the EHCR. The Commission held that art 2 does not require States to make passive euthanasia a crime, if the right to life is otherwise sufficiently protected by criminal provisions. In this case, life of patients was safeguarded by attaching criminal liability to medical negligence.

 Involuntary euthanasia

This occurs when an individual distinguish between life and death, and fully realises the difference between them, but is still put to death, the reason being that his/her death would be more beneficial to himself and/or others. For example, any time that medical personnel determine on behalf of a sentient and responsible individual that his or her life is not worth living, the medical killing of such a person as it is considered to be done for the prevention of suffering is involuntary euthanasia. Advocates of involuntary euthanasia claim that the right to life extends to the right to a good quality of life and therefore someone who cannot enjoy such a good quality of life has a life ‘not worthy of living’ and that person’s life should be taken away irrespective of whether the person gives consent or not. Here again, the question of what criteria are used to define good quality of life comes up, and once it starts becoming acceptable that people’s lives be taken away on the grounds of poor quality of life, society starts engaging itself on a slippery slope. In 1939, in an operation code named ‘Atkion T 4’, the Nazis started forcibly sterilizing those with physical and/or mental handicaps, murdering infants with similar handicaps, and later on started murdering handicapped adults. All this was done under the banner of upholding quality of life and eliminating all “life unworthy of life”. In Hitler’s own written words :

“Reichsleiter Bouhler and Dr. med. Brandt are instructed to broaden the powers of physicians designated by name, who will decide whether those who have - as far as can be humanly determined - incurable illnesses can, after the most careful evaluation, be granted a mercy death.”

Although the primary targets were the so-called Aryans, this widespread euthanasia programme set the tone to subsequent acts of crime against humanity which culminated in the genocide of millions of Jews in what is known as the Holocaust.

Taking someone’s life without even seeking his/her opinion not only is a clear violation of the provisions to the right to life set forth in the various regional and international conventions, but also constitutes a breach to the domestic laws in most (if not all) countries; it is simply called murder and there is no contention as to how unlawful and immoral it is.



Voluntary euthanasia means bringing about an easy and painless death for persons suffering from an incurable disease. One may argue that Voluntary Euthanasia may be performed only in extraordinary situations: 1) Under the decision of a court 2) When it is absolutely necessary 3) when it is a result of another condition than socio-political objectives.

If one assesses that the Right to life is a discretionary right, it is possible to argue that a human being is sovereign over his life, and therefore can waive his right by voluntarily choosing to die; but if one assumes that the right to life is a mandatory right, it is necessary that a human being has only one way of exercising this right, and a duty not to take his or her own life and not to co-operate with others in taking his or her own life.

It must also be considered that if the right to life is an inalienable right, suicide constitutes an essential violation of this right, and although in modern societies it is not a crime it is not permissible in different moral dimensions. A person who commits suicide may be treated as an unhappy individual who cannot find sense in life; but he may also be treated as a hero who died to save his honour as in ancient Rome, or for his own country or nation (Japanese pilots during World War 2).

Conclusion

The right to life thus stands in marked contrast to some of the other rights protected by the same instruments: for example, the freedom from torture and other ill-treatment and the freedom from slavery and servitude are both absolute, and subject to no exceptions of any kind. It may therefore be said that international human rights law assigns a higher value to the quality of living as a process, than to the existence of life as a state. It has been opined that this reflects a similar apparent anomaly found in many national legal systems, which award higher measures of compensation for the suffering of pain or long-term debilitating injuries (eg as a result of some avoidable accident) than for death caused in similar circumstances .

No longer are we living in an age where the rules of battle are rudimentary and the punishment of the greatest crimes is left in the hands of God. Violations of the right to life, especially of vulnerable groups that can be easy victims in this increasingly materialistic world, must be condemned. What is clearly lacking in legislative commandments are enforcement measures that would deter prospective Hitlers of this world.























Bibliography

o Lerner, N., Group Rights and Discrimination in International law,(1991) The Netherlands: Kluwer Academic
o Harris, D J., O’Boyle, M., Warbrick, C., Law of the European Convention on Human Rights, (1995) Butterworths: Edinburgh
o Sieghart, P., The International law of Human Rights, (1995) Clarendon: Oxford
o Steiner H J., Alston P., International Human Rights in context, 2nd edition (2000) Oxford University: Oxford
o Oraa, J., Human Rights in States of Emergency in International law,(1992) Calarendon Press: Oxford
o Meron, T., Human Rights and Humanitarian Norms as Customary law, (1989) Calendron Press: Oxford
o Brownlie, I., (ed), Basic Documents in International Law,(1983) Third Edition, Calendron Press: Oxford
o Nagendra Singh, Enforcement of Human Rights in Peace & War and the Future of Humanity, 1986 Martinus Nijhoff: New Delhi
o Robertson, G., Crimes against Humanity,(1999) Penguin Press: England
o Umozurike, The African Charter on Human and Peoples’ Rights, 77 AJIL 902, 909-10 (1983)
o Enhancing Canada's Role in the OAS: Canadian Adherence to the American Convention on Human Rights. Report of the Standing Senate Committee on Human Rights, May 2003, p. 62. Available online at www.senate-senat.ca/dp.asp
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