Examine any one of the core human rights addressed by this module, discuss the extent to which it is a negative or positive right, and consider the arguments for and against its application to different situations.

Introduction

The Right to Life is the most basic and fundamental Human Right. The need to be alive and stay in that way is the sine qua non prerequisite for any being and thus it is for human beings too.

 

 In what it follows a general depiction of the structure of our analysis will be given:

1) We will first identify and define this Human Right as it is identified and defined in: a) Universal Declaration of Human Rights (UDHR), article 3, b) International Covenant on Civil and Political Rights, (ICCPR), article 6, c) European Convention on Human Rights,  (ECHR), article 2 and d) European Union’s Charter of Fundamental Rights of the European Union, article 2.

2) We will distinguish the Right to Life as a negative Human Right that obliges inaction from the part of the state from the Right to Life as a positive Human Right that requires positive state interventions.

3) After that, the meaning and the scope of the Right to Life will be examined and analysed.

4) We will then bring forward the issues that arise from the application of the Right to Life and we will distinguish positive and negative sides of its application in real life contexts.

 

  1.     Identification and definition of the Human Right to Life

 

In our modern western society the right to be alive and stay in that way seems self-evident and quite obvious. What we tend to forget is that this right was not always so easily acquired by human beings. Slaves in ancient Greece and Rome did not have it. Their masters were able to take their slaves’ lives without facing any legal, social and political penalties. During wars the fate of the captured soldiers was also very dark, usually they were sold as slaves or they were killed, again without any negative consequences for the winners of these wars. Even during the 20th century in Europe, people were killed by the state as part of a social ‘clearing’.

 

The Human Right to Life is considered as a ‘sacred’ right for many cultures and religions (for Christians and Muslims for example) but at the same time we see people killed in the name of these religions. Although many would argue that the Right to Life is the most fundamental natural right and as such the protection of human life should be at least a universal moral obligation, at the same time we see everywhere around us civilians being killed in wars and this loss is named a ‘collateral damage’.

 

In our effort to identify and define the Right to Life we will directly refer to specific legal texts, with the purpose to find an undisputable basis for our identification and definition. Without necessarily endorsing ‘legal positivism’, we cannot find any other objective way to refer to the Right to Life. We will specifically refer to four treaties which represent the main and most important texts in regard with the Human Right to Life. UDHR, ICCPR, ECHR and the EU treaty are the most important texts regarding ‘Human Rights in International and European Contexts’ because they summarise the general legal approach to the Human Right to Life of both United Nations and the European Community. We will then closely examine the specific articles from these texts which identify and define the Human Right to Life.

 

Universal Declaration of Human Rights (1948), article 3: ‘Everyone has the right to life, liberty and security of person.’[1] The Right to Life here is only acknowledged along with the right to liberty and the right to security. We cannot really however say something more specific about the exact content of the Right to Life apart from the fact that this right is universal and it is connected (in some undefined ways however) with the right to liberty and the right to security. The two main conclusions thus, coming from the UDHR are: a) that ‘everyone’ has the right to life and b) ‘liberty’ and ‘security of person’ constitute along with the Right to Life a very important triad of Human Rights.

 

International Covenant on Civil and Political Rights (1966), article 6, paragraph 1: ‘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.’[2] Here we can detect a more completed approach to the matter of the identification and the definition of the Right to Life. We can therefore find these main elements:

1) ‘Universality’. ‘Every human being’ has this right.

2) ‘Naturality’. This right is ‘inherent’ to human beings. There is for everybody therefore no other need but the need of being a human being in order to possess this right.

3) ‘Positivity’. This right must ‘be protected by law’, which necessarily entails the need for the state to take certain actions in order to protect the Right to Life.

4) ‘Negativity’. No one, persons or states, can ‘arbitrarily’ take the life of anyone. That means that everybody must, within certain limits (and thus not arbitrarily), not act in order to deprived someone of his life.

 

We choose for the time being to refer only to the first paragraph of this article and not in the other five paragraphs, only because we focus to a possible definition of the Right to Life. For this purpose, the first paragraph is the most important one. The next five paragraphs however are also important for our understanding of the Human Right to Life because they refer to the problems of the ‘death sentence’ and the ‘genocide’. The death sentence constitute an extreme legal defence against people who commit crimes against the society and the genocide is, historically speaking, a rather usual method of ‘social clearing’ through the massive killing of people belonging in the same nationality or in the same religion. Both ‘death sentence’ and ‘genocide’ represent the most usual threats against the Human Right to Life.

 

European Convention on Human Rights (1950), article 2:

 -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.

 -Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

-in defence of any person from unlawful violence;

-in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

-in action lawfully taken for the purpose of quelling a riot or insurrection.[3]

 

Here we have a more detailed and complex definition of the Human Right to Life. What is of great importance here is that the Right to Life has certain limits and can be nullified under certain circumstances. The element of ‘universality’ is clearly stated. The right is recognised and defined as universal: ‘everyone’s right to life’. There is no reference however to any kind of ‘inherence’ and thus we cannot say that ECHR regards Right to Life as a ‘natural’ right. What we have instead are: a) the Right to Life is a positive right in regard with the obligation of the state to protect it through laws, b) the Right to Life is a negative right in regard with the obligation of the state to abstain from acts that could deprive someone from his life and c) the Right to Life is not an ‘absolute right’ like prohibition of torture for example, it is instead a ‘special right’ which means that the Right to Life can be revoked in specific and certain occasions.

 

The definition of the Right to Life that ECHR provides us is different from UDHR’s and ICCPR’s in that it is focussed more in the cases where the Right to Life is revoked. The death sentence is part of ICCPR’s approach to the Right to Life, the rest of the occasions however are not: defence from unlawful violence, effection of a lawful arrest, prevention of an escape of a person lawfully detained and the lawful ‘quelling’ of a riot are the ECHR’s specific occasions where a life can ‘lawfully’ be taken. It remains of course a huge problem to exactly define in any occasion the ‘lawfulness’ of the action.

 

 Someone could argue that is apparent that ECHR puts a great number of limits to the Right to Life. The immediate response to this accusation is that ECHR by providing very specific occasions, where the Right to Life is revoked, strengthens this right because certain limits are defined in an extreme detailed manner. Another possible objection here would be that ECHR seems to care more to restrict the Right to Life then to provide us with specific actions that could enforce it. Unless someone considers enough that our right to stay alive ‘shall be protected by law’.

 

European Union, Charter of Fundamental Rights of the European Union (2000), article 2: ‘1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed.’[4] The most important aspect here is that the death sentence does not exist anymore as an option. This treaty obliges only the members of the European Union and thus has not the global impact of UDHR and ICCPR. It is very important however for the way the Human Right to Life is viewed and actualised in Europe and because of the global importance of the EU can be used as an example that could affect other countries to change their attitude towards the limitations of the Right to Life.

 

To be more specific, death sentence is no longer an option for the state members of the European Union, while according to ECHR it was. In this way, the Right to Life is greatly enforced because the state cannot longer take a life even after a fair trial. The Right to Life then acquires fewer limits and reflects the fundamental importance for every human being to be alive. Its universality remains, ‘everyone has the right to life’. The problem however here is that we do not see any detailed plan that could protect the Right to Life either through obliging states to take actions in favour of its protection or through obliging states to stay away from any action that could endanger the lives of the people.

 

The Right to Life is identified as a fundamental human right which only under very specific circumstances can be abolished. It is therefore defined as not an ‘absolute’ right but as a ‘special’ right. Self-defence gives us the right to defend ourselves against people who want to hurt us even by killing them. This self-defence right can generally explain why the Right to Life is not absolute:

 

The right to life is not, however, as inviolable as it might seem at first sight. There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. The use of the death penalty is one such example. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use. The use of violence in self-defence lies at the base of other justifications for the taking of human life. Killing is permitted at times of war save for the murder of civilians and prisoners of war. Human rights law thus tries to respond to the myriad of ethical dilemmas raised by the right to life by establishing a range of prohibitions and exhortations.[5]

 

As a conclusion in regard with the definition of the Right to Life in ‘International and European Contexts’ we can point out: a) the Right to Life is both a positive and a negative right, which means that in some occasions the states should take actions to protect it and in other occasions the states should stay away from taking any actions that could endanger this right, b) there is a tendency within the movement of Human Rights as these are defined in global treaties to remove the death penalty, that movement is clearly expressed in the EU’s Charter of Fundamental Rights of the European Union and is also apparent in the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (1989), article 1[6] and c) the Right to Life has certain limits and thus although it is the most fundamental Human Right, it is not an absolute right.

 

2.1 The Right to Life as a negative Human Right

 

The first approaches to Human Rights of ‘life, liberty and property’ interpret these as mainly and primarily ‘civil and political rights’. Within this philosophical/legal tradition (which is almost exclusively a ‘liberal’ ideological tradition), the Right to Life is considered to be exclusively a negative right. This means that within this tradition the Right to Life is only a ‘freedom from’ state intervention and state control. The Right to Life here represents a ‘natural’ right that belongs to every single human being. Nozick, John Locke, Dicey and Hayek belong to this tradition. The main aspect of this theoretical approach to the nature of the Right to Life is that focuses only to preventing public sector officials from ‘interfering’ with the way individuals actualise their Right to Life. In this way, for example, the state needs to abstain from taking any actions that could endanger individuals’ life and at the same time the individuals have to defend themselves against any possible dangers towards their life. This practically means that the individuals have the right and the duty to defend themselves against any life-threatening situations.

 

What becomes obvious here is that this approach is one-sided. The Right to Life cannot only mean that the state and its agents should stay away from taking actions that could endanger the individuals’ Right to Life. This right, like every other Human Right, requires legal definition, adjudication and enforcement, and this demands positive state involvement that would provide the necessary help. In other words, it is not enough to feel secure that the state will not try to kill us; we must be assured also that the state will provide us with the necessary legal and social aid, such as courts, police, prisons etc.

 

Having said that, the Right to Life clearly has a ‘negative’ side. The state should not arbitrarily try to take our life away. This means that only under very specific circumstances the state can take actions that could endanger our Right to Life. The negative aspect of the Right to Life refers also to the strict prohibition of any state ‘clearings’ of any kind of minorities or any individuals in general. It also refers to the state obligation to not take any actions that could severely restrain the possibilities for survival of the individuals. The state thus, cannot act in a way that could put in danger the natural environment or the social environment. The state thus cannot act in a way that, although it does not involve directly our Right to Life, it nevertheless affects our lives in such a way that makes our lives unbearable.

 

In this way, the Right to Life refers to the security that the individuals should feel from any possible state ‘interfering’ which could jeopardise our lives. This also refers to the very specific conditions that could give to the state the right to ‘risk’ our lives. Only matters of defence can make the state break its ‘neutrality’. This defence can refer to cases of legal persecution of individuals who first themselves tried to risk the lives of their fellow citizens. This ‘risk’ has to do with killing other people or putting in great danger the lives of others in their society. We are going to say more about specific actualisations of the negative aspect of our Right to Life in the last part of our analysis.

 

2.2 The Right to Life as a positive Human Right

 

We have already mentioned that the Right to Life cannot refer only to the general lack of any state interventions. It should, on the contrary, refer also to the necessary state actions which could ‘build’ the safest possible social and legal environment for the lives of its society members. All these actions represent the ‘positive’ aspect of our Right to Life. The state needs to provide its citizens with complete social services such as police, courts, but also a basic health system and other basic services such as fire department. These services can guarantee that our lives would not be in danger without the necessary state aid.

 

In this way, the positive side of our Right to Life forms some basic demands from the state. These demands refer to our defence from life-threatening situations. Police is needed to provide us this kind of defence but equally necessary are also an efficient health system or an efficient legal system and an army. The positive side of our Right to Life refers also to our demand for fair and public trial and to our demand for clearly knowing when the state can give us a death sentence. It also refers to specific state actions which could minimise the danger of ‘peremptoriness’ on behalf of the state.

 

The positive aspect of the Right to Life has, in general, three main dimensions. The first dimension refers to the active state aid to its citizens in order for them to defend more efficiently their lives. The police, for example, belong to this dimension. The second dimension refers to the necessary state actions which could make the social environment as safe as it could be, in order for its citizens to be able to secure in the best possible way their lives. General health system and fire brigade, for example, belong to this dimension. The third dimension refers to the need for the state to avoid arbitral actions against the lives of its citizens. The state must have specifically notified its citizens for the specific conditions which could make the state to act against the lives of its citizens. The laws that can give the right to the state to put a death sentence upon its citizens, for example, belong in this dimension. We are going to say more about specific actualisations of the positive aspect of our Right to Life in the last part of our analysis.

 

  1.     Meaning and scope of the Right to Life

 

We have, so far, identified and defined the Right to Life by referring specifically to UDHR, article 2, ICCPR, article 6, ECHR, article 2 and to the Charter of Fundamental Rights of the European Union, article 2. These texts, we have argued, can be used as an adequate general ‘textual’ horizon within which the Right to Life can be pointed out in its general aspects. The need for such an approach is that only by referring to specific legal texts can we ‘objectively’ identify and define any Human Right and thus, the Right to Life too.

 

The meaning and the scope of the Right to Life however must be analysed in more details if we aspire to really understand its real need and its practical (and thus actual) use. Our first step is to take a stance regarding the possible nature of the Right to Life. Is it purely a universal right which is, by nature, given to every human being? Is it purely a legal definition, written in some treaties? Is it a cultural and thus relative product which acquires different meanings in different cultures?

 

Michael Perry argues that the Human Rights in general are products of cultures and thus the Right to Life has different meanings in different cultures.[7] Jack Donnelly, on the contrary, argues that we cannot approach the Right to Life through ‘cultural relativism’.[8] Michael Goodhart argues that the Human Rights are neither relative nor universal.[9]

 

Our approach to the Right to Life addresses specifically its biological fundamentality. In other words, without our lives we do not exist. Our Right to Life then, if nothing else, is the most basic and fundamental ‘biological’ right. This means that we cannot but recognise the biological importance of life and thus we cannot but recognise the obvious necessity and primacy of this right. In this way, the Right to Life is something more than a simple legal right and it is also something more than a relative product of some culture. Without saying anything about morality and thus without arguing in favour or against the moral obligation towards the respect of human life, we strongly believe that the Right to Life must be recognised as the sine qua non  right for every living human being. Otherwise, the Right to Life can be nullified. Legal positivism would recognise such right only as long as it is written and defined in a legal text. Relativism of any kind would recognise such right only as long as different cultures recognise it or not. If, on the other hand, we choose to consider it a ‘natural right’, we must also be able to describe objectively what exactly we mean by the words ‘human nature’. Our approach follows the biological necessity of life for every being and so for human beings too.

 

The meaning of the Right to Life then, refers specifically to its biological importance and primacy without begging any further foundation, moral, cultural, natural or relativistic. This can explain why the Right to Life is not an absolute one. It is not an absolute one only in cases of defending the lives of other individuals who’s Right to Life is also legitimate and equally strong. In other words, if, through our actions, we try to take the lives of other people, both the state and these people can lawfully take our life, either through killing us immediately in defence or through killing us after a fair and public trial (by executing a death sentence).

 

In this way, the scope of the Right to Life is not absolute. We have already referred to the legal texts which define legally the Right to Life. Without repeating ourselves and only for the purpose of specifically defining the scope of the Right to Life we will refer to the exact restrictions of the Right to Life which are written in the article 2 of the ECHR.

 

These restrictions are: 1) Court decision. The death penalty can be imposed only by a court after a fair and public trial and must be provided by the law; Protocol No. 61 however annexed to the convention dictates that the death penalty should be abolished unless we refer to acts committed during war. We have also mentioned the article 2 of the Charter of Fundamental Rights of the European Union, which removes the death penalty from the state members of the union. 2) Legitimate defence. 3) Detaining and preventing the escape of a detainee. 4) Quelling rebellions. 5) War actions. What is important here however is that any kind of defence which results in the death of an individual must be in balance with the benefits intended to be preserved. In other words, in order to lawfully take a life of an individual in an act of defence, the danger for our lives or for the lives of other people must be imminent or quite great.

 

What is left outside of the scope of the Right to Life are: a) the right of the unborn and b) our right to euthanasia. In other words, can we legally have an abortion without this to be considered a direct ‘blow’ against the Right to Life of the unborn child and can we deliberately terminate our life if we do not wish to continue living because of medical issues?

 

What else are left outside the scope of the Right to Life are specific questions regarding the further application of the Human Right to be alive. We sententiously refer some:

1) Should the Right to Life involve secondary rights such as investigations into death?

2) What about a person dying in police custody through a dangerous restraint technique?

3) What about suicide?

4) What about ‘asylum’? Are the states obliged or not to not deporting or extraditing an individual to a country where he is going to be killed?

 

What is important for our current analysis is to point out that: a) the Right to Life although it is a fundamental right, it is not an absolute one, because people and the state should be able to defend themselves in cases of acts which endanger their existence and b) in cases such as euthanasia, suicide and abortions, although we do have a direct ‘attack’ against the Right to Life, we cannot include them (yet at least) within the scope of the Human Right to Life as it is expressed in general treaties (the four that we already mentioned).

 

  1.     Issues that arise from the application of the Right to Life-Positive and negative sides of its application in real life contexts

 

Instead of trying to analyse many different real-life cases where the Right to Life is applied we will try instead to focus on a very specific case, that of killing, in defence, a terrorist. Our reasons for such an analysis are: a) otherwise we would have to write a whole book instead of an essay, trying to basically cover every possible aspect of the application of the Right to Life and b) by analysing our defence to terrorism we can point out some of the most crucial and ambiguous parts of the application of the Right to Life.

 

We live in a very ‘unquiet’ world where the danger of terrorism is more than apparent. We will examine the Right to Life in cases of terrorism and killing terrorist suspects. We will begin with the obvious remark: everyone has the right to be alive unless with his acts puts in great danger the lives of other human beings. The negative aspect of the Right to Life obliges the state to stay away from taking any actions against the lives of the individuals. The positive aspect of the Right to Life however obliges the state to lawfully protect the lives of the human beings which are in danger because of acts of terrorism. What we have already mentioned as the right to ‘defend’ ourselves against actions which endanger our lives can be used here as a general axiom along with the necessity of an equitable balance between using force for defence and the results of this force.

 

More specifically, in ECHR, article 2:

  1. a) there is a duty not to kill somebody unless it is for legitimate purpose and absolutely necessary,
  2. b) there is a positive duty to protect life,
  3. c) there is a procedural duty to investigate death and
  4. d) in ECHR, article 2/1, there is a positive duty of the state to protect life through civil and criminal measures which would prevent death.

 

In McCann v. United Kingdom (1995) 21 EHRR 97 in the European Court of Human Rights (ECtHR)[10] we see that the court decided that the SAS soldiers were justified in killing the three IRA volunteers because of an honest belief that they were about to commit a terrorist atrocity. A similar incident occurred in the shooting of Jean Charles de Menezes, where Menezes was killed by agents of the state because they wrongly (but honestly as they claim) considered him a suspected terrorist bomber.

 

In both incidents the agents of the state were under the belief that they were defending themselves and their country from acts which could lethally harm them and harm also the lives of their fellow citizens. The question that we should ask again and again however is if their belief was justified or not under the specific circumstances. The crucial point then in such cases where usually the state agents do not have more than few seconds to respond is the justification of the agents’ believes. In McCann v. United Kingdom the ECtHR the court (by a majority of 11-10) decided that the use of lethal force had not been ‘absolutely necessary’ because the whole operation was based in wrong information and thus breached the terrorists’ right to life.

 

So the court decided that the soldiers were justified to shoot the suspects but their orders, based in wrong assumptions, were not justified as well. What is to be underlined here then is that the use of lethal force should be ‘absolutely necessary’ and this necessity sometimes can be quite difficult to be proved, especially if the victim is wrongfully taken for a terrorist. We can say then that in these cases we have both the negative aspect of the Right to Life which obliges the state to not act against the life of an individual and the positive aspect of the Right to Life which obliges the state to protect with acts the lives which are in jeopardy from terrorism and terrorists. As we have already pointed out, there always must be a balance between an action of defence and its results. In cases however such as McCann and Menezes where the results of the defence are lethal although the ‘attack’ which made the state agents to act is not as lethal the answer is not so obvious or so definite.

 

  1.     Epilogue

 

The Right to Life can hide many ‘fuzzy’ aspects. What is apparent after our analysis is the fact that in many actual cases we cannot be absolutely sure about our reaction. The problem is located (in our opinion) within the very nature of this right. It is the most fundamental but it is not an absolute one. The need for defence with ‘justified’ acts and with the ‘absolutely necessary’ force is a logical one but it is not also so easily defined.

 

The actions which refer to euthanasia, abortion, suicide, asylum or death during an interrogation make also apparent the fact that the scope of the Right to Life needs re-evaluation.

 

We have left so far outside from our analysis a very modern possible breach of the Right to Life: the current economic crisis in Europe. Only in Greece the suicides during the last three years have been tripled. Along with these unfortunate ‘incidents’ we also have many human beings who will eventually die because of the lack of any medical care and because of the heavy feeling of depression which will end earlier the lives of many Greek citizens.

 Can we say that this social/economic crisis is a life-threatening situation that needs to be taken seriously from the state members of the EU? Can we also argue that the EU citizens’ Human Right to Life is in great danger? Our answer is definitely yes. It remains however as another ‘fuzzy’ aspect of the Right to Life, which needs to be addressed properly.

 

BIBLIOGRAPHY

 

  1. Donnelly, Jack, ‘Cultural Relativism and Universal Human Rights’, Human Rights Quarterly, Vol. 6, No. 4 (Nov., 1984), pp. 400-419.
  2. Goodhart, Michael, ‘Neither Relative nor Universal: A Response to Donnelly’, Human Rights Quarterly, 30 (2008), pp. 183-193.
  3. Perry, Michael J., ‘Are Human Rights Universal? The Relativist Challenge and Related Matters’, Human Rights Quarterly, 19 (1997), pp. 461-509.

 

INTERNET RESOURCES

 

 

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[1]http://www.hrea.org/index.php?base_id=104&language_id=1&erc_doc_id=445&category_id=24&category_type=3&group=Human%20rights%20treaties%20and%20other%20instruments, accessed at 19/05/2013.

[2]http://www.hrea.org/index.php?base_id=104&language_id=1&erc_doc_id=451&category_id=24&category_type=3&group=Human%20rights%20treaties%20and%20other%20instruments, accessed at 19/05/2013.

[3] http://www.hrea.org/erc/Library/hrdocs/coe/echr.html, accessed at 19/05/2013.

[4] http://www1.umn.edu/humanrts/instree/europeanunion2.html, accessed at 19/05/2013.

[5] Hrea.org, ‘The Right to Life’, http://www.hrea.org/index.php?doc_id=427, accessed at 19/05/2013.

[6] http://www.hrea.org/index.php?base_id=104&language_id=1&erc_doc_id=454&category_id=24&category_type=3&group=Human%20rights%20treaties%20and%20other%20instruments, accessed at 19/05/2013.

[7] Michael J. Perry, ‘Are Human Rights Universal? The Relativist Challenge and Related Matters’, Human Rights Quarterly, 19 (1997), pp. 461-509.

[8] Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’, Human Rights Quarterly, Vol. 6, No. 4 (Nov., 1984), pp. 400-419.

[9] Michael Goodhart, ‘Neither Relative nor Universal: A Response to Donnelly’, Human Rights Quarterly,  30 (2008), pp. 183-193.

[10] http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/c959f053662c3ec4c1256640004c2d90?OpenDocument, accessed at 26/05/2013.