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  This module is a resource for lecturers  

 

Regional human rights instruments

 

The African region

 

African Charter on Human and Peoples' Rights

Article 4 of the African Charter deems human beings as "inviolable" and provides that "every human being [is] entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right". As the African Commission on Human and Peoples' Rights (ACommHPR) General Comment No. 3 makes clear, the African Charter should be broadly interpreted to mean the protection of a dignified life (s. I) (OAU, ACommHPR, 2015). This General Comment further interprets the African Charter's right to life provision more extensively to include the requirement of accountability. More specifically put, the General Comment suggests that if a State has failed to transparently take all necessary means to investigate deaths or to hold individuals/groups accountable for violations of the right to life then this also constitutes a violation in and of itself by the State. Transparency of laws, policies and processes is highlighted as being of equal importance in the fulfilment of a State's obligations to protect the right to life. The African Commission goes further than the Human Rights Committee in affirming that the African Charter does not recognize the use of the death penalty, even in limited circumstances, although this strong declaration is most likely explicable by the fact that there is no explicit mention of the death penalty in the Charter text (OAU, ACommHPR, 2015).

Unlike in other regional systems, the African Commission has not defined precisely the scope of the right to life. An example is the case of Organisation Mondiale Contre La Torture, Association Internationale des Juristes Démocrates, Commission Internationale des Juristes (C.I.J), and Union Interafricaine des Droits de l'Homme v Rwanda (1996). In this case, while the Commission concluded that a massacre of Tutsi villagers by members of the Rwandan armed forces amounted to a violation of the right to life, it did not specify the scope of this right. Nor did provide guidance on the (positive and negative) duties of the State relative to the right to life. The right to life does though oblige States to trigger an investigation on the right to life at its own accord ( Commission Nationale des Droits de l'Homme et des Libertés v Chad, 1995, para. 22). On this, the African Charter has in fact explicitly adopted the standard of due diligence to investigate the right to life from the Inter-American Court's judgement in Velasquez Rodriguez (1988). The accompanying positive duty of States to investigate killings has been affirmed, among other cases, in Amnesty International, Bachelard and Lawyers Comm. for Human Rights, Ass. of Members of the Episcopal Conference of East Africa v Sudan (1999) (see also, Oredraogo v Burkina Faso, 2001, para. 4). That said, the African Commission has recognized too that there may be a question of sufficient resources in order to carry out this duty. It has also, like the Inter-American Court, distinguished between its lack of jurisdiction on events taking place before ratification of the Charter and those situations that continually violate the right to life after ratification, such as the failure to investigate in Beneficiaries of the Late Norbert Zongo and Others v Burkina Faso (2014).

 

The Inter-American region

 

American Convention on Human Rights

Article 4(1) of the American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) states that "[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life." The provision, thus, affirms both positive and negative duties of the State ( Myrna Mack-Chang v Guatemala, 2003, para. 153). The Inter-American Court (IACtHR) has played a primary part in developing the interpretation of this provision. It has held that article 4 requires that States adopt "all appropriate measures" to protect this right and failure to achieve this would be a breach of the right ( Barrios Family v Venezuela, 2011, para. 48). In 2012, in the case of Artavia Murillo et al v Costa Rica, the key issue hinged around the ban on vitro fertilisation treatment. The case interpreted "every person" as "every human being" as per article 1(2) American Convention, as well as when the beginning of life occurred. More broadly, the IACtHR held that the term "in general" meant that the right to life "should not be understood as an absolute right, the alleged protection of which can justify the total negation of other rights". The Court went on to add that article 4 American Convention permitted "as appropriate, an adequate balance between competing rights and interests" (2012, paras. 258 and 263). The Inter-American Commission on Human Rights (IACommHR) has further placed the right to life into the category of jus cogens, although given that it is not an absolute right, this is contentious.

One interesting point concerns jurisdiction ratione temporis of right to life cases. The IACtHR has recognized that it does not have jurisdiction over cases that occurred before the ratification of this Convention, but it can exercise jurisdiction in cases where right to life violations took place before ratification, but where the effects continue after ratification, usually in enforced disappearance cases. The Court in Velasquez Rodriguez (1988) , as relied upon by the African Commission, also stated that all investigations into right to life (and other human rights) violations must be "serious", meaning that the State must "use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation".

The interpretation of the right to life under the Convention and the State's obligation to investigate has been shaped in many ways within the context of enforced disappearances, which has been rife in this region. In this sense, the IACtHR has insisted that the State's duty of due diligence is moulded by an enforced disappearance and more generally by the context. This is different to the European Court of Human Rights (ECtHR), which has stated that the scope of procedural obligation is unambiguous. The African Commission, although drawing upon the Inter-American Court's jurisprudence, has remained relatively silent on the impact of context on the State's positive obligations regarding the right to life. Both the IACtHR and the ECtHR require that the prosecution and punishment of perpetrators violating the right to life must be effective. Additionally, the IACtHR has refrained from detailing the duty to investigate right to life violations. This is due to the common practice of States opening formal investigations, but not seeing them through to completion. The authorities then do not investigate in substance, rendering it a mere registration, as occurred in the case of Cotton Field v Mexico (2009).

 

Protocol to the American Convention on Human Rights to Abolish the Death Penalty

The Protocol acknowledges the right to life provision in the American Convention on Human Rights and goes onto add that "everyone has the inalienable right to respect for his life, a right that cannot be suspended for any reason". It further recognizes that the abolition of the death penalty is a more effective way of protecting the right to life. However, the Protocol does not absolutely prohibit the death penalty, since its article 2 allows for a reservation to be made by State parties on the death penalty in times of war and according to international law for the most serious crimes of a military character.

 

American Declaration of the Rights and Duties of Man

Article 1 of the American Declaration recognizes that everyone has the right to "life, liberty and the security of his person". Whilst, at its adoption, the Declaration was not a legally binding instrument, the IACommHR has argued that it has since acquired that status on the basis that its text was subsequently incorporated into the Charter of the Organization of American States. The Commission's position on the American Declaration has also developed in relation to two specific right to life issues, namely, abortion and the death penalty. In the case of Roach and Pinkerton v US (1987) (see also Thompson v Oklahoma, 1988, paras. 823-831), the Commission found the US to be in violation of the right to life provision. Although article 1 is silent on the death penalty, it was argued that the US had violated the right to life, as informed by customary international law, due to prohibitions on the executions of person who had committed crimes under the age of 18. The violation was also seen in light of article 26 of the American Declaration, where persons are not to "receive cruel infamous or unusual punishment". The Commission was of the opinion that the US was legally bound by the American Declaration due to its ratification of the OAS Charter.

 

Inter-American Convention on the Forced Disappearances of Persons

Whilst this Convention does not expressly dictate protections on the right to life, it considers this more broadly within the context of the other main human rights instruments. The Convention approaches forced disappearances of persons as violations of non-derogable and essential human rights contained within the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights. This, therefore, includes the non-derogable right to life provided for in these instruments. Cases such as Osorio v Rivera and Family Members v. Peru (2013) demonstrate the IACtHR's approach on forced disappearances under the Convention, even when States have refuted its competence ratione temporis.

 

The Middle East and Gulf regions

 

Arab Charter on Human Rights

Articles 5-8 of the Arab Charter on Human Rights provide for the right to life. Article 5 declares that "[e]very human being has an inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."The right to life provision was only inserted into the revised 2004 version of the Charter, which was intended to "modernise" the League of Arab States.  The older 1994 version was seen as significantly falling short of international standards. Even with the newer 2004 version, the Charter has still been criticised for not being fully consistent with or reflective of international human rights law. For a start, it is unlikely that the Arab Charter would be interpreted in the same manner as article 6 International Covenant on Civil and Political Rights (ICCPR), since a number of Arab countries still impose the death penalty, sometimes with questionable accompanying standards of due process or a fair trial according to international human rights law. Similarly, despite the right to life provision, the Charter's article 7 permits the death penalty to be imposed on children under 18 years if provided for in national law.

 

The European region

 

European Convention for the Protection of Human Rights and Fundamental Freedoms

Article 2 of the European Convention on Human Rights (ECHR) states that "everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law". Whilst the ICCPR, the African Charter, the American Convention, the ECHR and the Arab Charter all do protect the right to life, there are variations in the scope of this protection, particularly regarding the interpretation of "arbitrary". The ECHR is the only one amongst these treaties which provides for specific circumstances that are not considered to be in violation of the right to life. Article 2 further provides that life can be deprived when the use of force is:

[A]bsolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

This, to some degree, assists in the interpretation of arbitrary deprivation of life, albeit the word "arbitrary" is not explicitly used. Article 15(2), however, does allow for derogation from article 2 for lawful acts of war. Furthermore, the standard of due diligence required to investigate the right to life is differently interpreted than from the African or Latin American regional systems. The ECHR has focused on an "effective, official investigation", as in the case of Hugh Jordan v UK (2001), where "exemplary due diligence" was required. In addition, the European Court of Human Rights (ECtHR) has relied on the Human Rights Committee and Inter-American Court of Human Rights (IACtHR) jurisprudence to assert that investigations into the right to life can bind the State even if a deprivation of life occurred before the entering into force of the Convention.

 

Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in all Circumstances

The Protocol expressly recognizes that the right to life is a basic value in a democratic society and that in order to strengthen its protection, the abolition of the death penalty is essential. The creation of this Protocol resulted from a desire to completely abolish the death penalty in Council of Europe Member States and to remove the wartime exception included in Protocol No. 6. It was also argued that Protocol No. 13 would implicitly change the right to life, article 2(1) ECHR, which would be evident through practice. The Protocol's article 5 relates to the relationship between it and the ECHR, which in fact is stated as additional to the ECHR and not as a full substitute or amendment. The Commentary on the Protocol clarifies its position on the death penalty as follows:

As an additional Protocol, it does not, as far as the Parties to the Protocol are concerned, supersede Article 2 of the Convention, since the first sentence of paragraph 1 and the whole of paragraph 2 of that article still remain valid … It is clear that the second sentence of paragraph 1 is no longer applicable in respect of the States Parties to this Protocol. (Council of Europe Treaty Series - Explanatory Reports, 2002, article 5).

The Protocol in many ways triggered a shift in collective penal policy, demonstrated by the fact that all Member States, aside from Russia, had signed and ratified Protocol No.s 6 and 13 by 2003. The change in attitude has also been reflected in the case of Öcalan v Turkey (2005) . (See further in section on Extra-territorial application of the right to life).

 

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