Published in July 2018.

 

 
  This module is a resource for lecturers  

 

International human rights instruments

 

Universal Declaration of Human Rights

Article 3 Universal Declaration of Human Rights 1948 (UDHR) states that "[e]veryone has the right to life, liberty and security of person". This article overlaps with its article 25 UDHR (which entitles all persons to a standard of living adequate for health and well-being, and offers special protection to motherhood and childhood) and has often been read alongside article 5, which discusses "torture or cruel, inhuman or degrading treatment or punishment", as well as article 9 in which nobody should be subjected to "arbitrary arrest, detention or exile".

 

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is viewed as containing the main provision on the right to life under its article 6(1), which provides that "[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." No derogation is to be permitted under article 4(2) even in times of armed conflict or public emergency. Furthermore, the use of the word "inherent" in article 6(1), followed by an explicit prohibition on the arbitrary deprivation of life, highlights the right's hierarchical status. In its General Comment No. 36 (2017), the Human Rights Committee emphasised that the right should not be interpreted narrowly and should be guaranteed for all human beings, without distinction in kind. This means that the right to life should be protected for suspected and convicted individuals of even the most serious of crimes.

The Human Rights Committee also viewed article 6(2), (4)-(6) as providing safeguards for countries which had not abolished the death penalty, which should be applied only in exceptional circumstances "under the strictest limits". The Second Optional Protocol on the death penalty similarly governs such issues. By necessitating the prohibition on "arbitrary" deprivation of life, article 6 ICCPR inadvertently acknowledges that some deprivations of life may not be arbitrary. These include self-defence in times of armed conflict, which will be discussed later in the Module. Article 6(3) also specifically regulates its relationship with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.  This means that when deprivation of life constitutes the crime of genocide, no State party to the ICCPR may derogate from any of its obligations under the Genocide Convention.

In 2017, the Human Rights Committee finalized its first reading of an updated draft General Comment on article 6 ICCPR. The draft includes observations that States parties are under a due diligence obligation to take "reasonable" positive measures which are appropriate in the specific circumstances, which do not impose on them impossible or disproportionate burdens, in response to foreseeable threats to life originating from private persons or entities whose conduct is not attributable to the State. States are therefore obliged to take adequate preventive measures in order to protect individuals against being murdered or killed by criminals or organized crime or militia groups, including armed or terrorist groups (General Assembly report A/72/316, para. 16).  Stakeholders were invited to provide submissions on the draft by 6 October 2017. 

 

Convention on the Rights of the Child

Article 6(1) of this Convention states that "States Parties recognise that every child has the inherent right to life". This overlaps with the general duty under article 6 ICCPR, as well as with article 24(1) ICCPR which requires that every child has "such measures of protection as are required by his status as a minor on the part of his family, society and the State". Article 24 further ensures that special measures are implemented in order to protect the right to life of the child, such as being registered immediately after birth, having a name and the right to acquire a nationality. The right to life under article 6 Convention on the Rights of the Child is further regarded as special and as containing one of the general principles that help to interpret the other articles of the Convention. As such, article 6 plays a fundamental role in realising the Convention rights for all children and acknowledging the right to a child's survival and development.

 

International Convention for the Protection of All Persons from Enforced Disappearance

This Convention was adopted in 2006 to deal with enforced disappearances, which are defined as a form of deprivation of liberty committed by State agents or individuals/groups acting with such State authority, support or acquiescence. This is followed by a lack of recognition on the deprivation of liberty and refusal to disclose the location of the disappeared, placing the person outside of the law. This was the first international treaty to expressly prohibit such enforced disappearance practices and requires States to criminalize enforced disappearances and provide access to legal remedies for its victims within domestic legislation. The Convention forbids secret detention, requires full transparent records of the detainee's status and location as well as the right to legal counsel.

This Convention appears to fill gaps in the protection against disappearances. Quite significantly, its inclusion of a right not to be a victim of an enforced disappearance, as well as the definition of disappearance, are notable achievements. The definition is two-pronged, in that it not only acknowledges the unique character of disappearances, but also seeks to prevent the exacerbation and escalation of enforced disappearances by State agents or those authorized by the State. Despite its positive achievements, however, the content is still ambiguous in some respects. Since States seem to integrate certain aspects of enforced disappearances within terrorist investigations, it is not clearly defined where the line is drawn on State practice that would be deemed an enforced disappearance under the Convention and whether it falls within its protective remit. Some areas of counter-terrorism strategy and its alignment to the Convention require additional clarification.

 

International Convention on the Protection of the Rights of Migrant Workers and Members of their Families

Article 9 of the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families states that "the right to life of migrant workers and members of their families shall be protected by law". The Convention is seen as recognizing rights specific to the situation of migrant workers, targeting particular areas where migrant workers may remain vulnerable or be exploited. Migrant workers may be subject to counter-terrorism strategies that involve unlawful force or even enforced disappearances, therefore the Convention re-affirms their right to life. In fact, different treaty bodies have raised anti-terrorism measures as a concern for migrants. The re-affirmation of this right is also due to the fact that other human rights treaties and domestic laws containing the right to life use language referring to "citizens" or "residents", which de jure exclude migrants.

 
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