Human Rights II: Substantive Rights
(RGMUIER016)
Condensed notes for exam
Week 1 - Right to Life
The focus of this lecture is on the right to life as in, among others, Article 6 ICCPR, Article 2
ECHR, Article 4 American Convention on Human Rights (ACHR) and Article 4
African Charter on Human and People’s Rights (ACHPR). The right to life holds a central
position in human rights law as the foundational right that allows an individual to enjoy all
other rights.
This lecture will focus on the scope of the right to life and the instances in which
a person may be lawfully deprived of their life. In looking at these examples, the lecture
focuses on the case law that has been generated on the right to life, which clarifies principles
of necessity, lawfulness, and proportionality.
The lecture will also look at the positive obligations that are part of the right to life, including the
obligation to protect life, the obligation to conduct an effective investigation and the obligation to
protect individuals from the acts of third parties.
Obligations
● Restrictions: negative obligations (death penalty, non-arbitrary)
● Positive obligations
○ Substantive: protect against lethal violence by non-state actors or circumstances
○ Procedural: investigate deaths or disappearances
Scope of right to life
1. Unborn children and abortion
a. ICCPR HRCtee Gen Comm (GC) 36: para 8 - abortion to be regulated, provide
safe conditions to women and girls
b. African system GC 3: no mention
c. Inter-American system Art 4(1) ACHR: “in general, from moment of conception” =
vague because it was political compromise
i. IACtHR
1. Artavia Murillo v Costa Rica (IVF) 2012
a. Para 263: States can decide for themselves what to
prohibit
, b. Para 264: You gradually gain rights and protection, it’s not
absolute and unconditional, exceptions are understandable
d. ECHR system
i. Unborn child: VO v France 2004
1. Accidentally removed Vo’s reproductive organs in hospital due to
mix-up. Right to life.
2. Para 82: States have margin of appreciation
3. Para 85: Court doesn’t want to draw a line specifically on whether
unborn child is a person under art 2
ii. Fetus v abortion: P and S v Poland 2012
1. Para 97: consensus among substantial majority of European
States = different possibilities are allowed
e. Courts don’t want to take a hard stance because the countries under their
jurisdiction have different cultures, political diplomacy…
2. Euthanasia
a. Assisted suicide: few States allow medical practitioners to prescribe legal drugs,
others criminalize it
b. No right to die
i. Pretty v UK 2002
1. Pretty had terminal autoimmune disease and wanted to die with
help of her husband. They started a case arguing that if there is a
right to life there should be a negative right not to live. If there is a
right to marry, it doesn’t mean everyone has to marry, they have a
right not to marry.
2. ECtHR said the right to die goes too far and Pretty lost the case.
c. Withdrawing life support
i. Burke v UK 2006
1. Margin of appreciation on how States do it but there is a
presumption strongly in favor of prolonged life (doctor tries all they
can).
2. ECtHR did not want to say that this means you can never decide
to die.
d. ECHR = usually wide margin of appreciation
i. Margin is not endless (ex. State can’t give Pretty’s husband death penalty
for “killing” his wife)
3. Other situations other than death
a. Life-threatening but not dead (someone might have gotten killed but survived it)
i. Chongwe v Zambia HRCtee 1998
ii. Makaratzis v Greece ECtHR 2004
iii. GC 3 African COmmission para 8
iv. Even if the person didn’t die but the facts show that it was
life-threatening, you can still argue that it’s right to life
, b. Unknown whether dead or alive - enforced disappearances
i. Varnava et al v Turkey
ii. State has duty to investigate what happened
iii. Temporal element: it starts the moment someone is disappeared, and
lasts until the person is found / the truth is found = continuing human
rights violations
4. Quality of life: to have a decent/dignified life (links to other rights, such as
socio-economic)
a. Inter-American system
i. Villagran Morales v Guatemala 1999
1. Street children killed by security forces. Court said beyond the
killing, the children were already living in poor circumstances in
which the context was not dignified = early recognition of right to
life meaning more
b. African system
i. ACHPR GC No 3 2015 and Social and economic rights Action Centre and
the center for economic and social rights v Nigeria 2001
1. Not only life in a narrow sense, but a dignified life = broad
definition
c. See Wick on Dignity and the Right to Life
i. Why we protect the right to life is to protect human dignity. From that
starting point, it makes sense to not only keep people alive but also give
them dignified living circumstances.
ii. Dignity can also be used to argue against right to abortion and euthanasia
Restrictions to right to life
● Relative right, not absolute
● Two exceptions:
○ Death penalty
○ Non-arbitrary use of force which may result in death
Death Penalty
● Slowly decreasing
ICCPR art 6(2)
Limitations: ICCPR 2nd OP = abolishment of death penalty and we won’t reintroduce
(over 90 States are parties)
Inter-American ACHR Art 4(2) = once you’ve abolished you can’t reintroduce it
, Both these treaties have similarities:
1. Can only be used for most serious crimes
2. Procedural guarantees (can only be decided after fair trial)
3. Not applicable for certain vulnerable groups (under 18, pregnant women, decreased
mental abilities)
4. Non-retroactivity (you can’t impose it for crimes before death penalty began)
5. Both treaties encourage abolishment of death penalty
African system ACHPR
● No mention, yet applicable
● African COmmission GC no 3
ECHR Protocol 6 and 12
● Widely ratified (abolishing) except for Azerbaijan
● Al Sadoon and Mufdhi v UK 2010 para 120: “consistent State practice indicative that Art
2 now prohibits death penalty in all circumstances”
Use of lethal force
● Most HR treaties: “arbitrarily” = there are situations where State can kill
● Examples:
○ Art 2(2) ECHR: use of force which is no more than absolutely necessary
i. In defense of any person from unlawful violence (ex. police kills school
shooter)
ii. In order to effect a lawful arrest or to prevent the escape of a person
lawfully detained (ex. Killing someone trying to escape prison = very
1950’s thinking)
iii. In action lawfully taken for the purpose of quelling a riot or insurrection
(ex. If many people become violent = also 1950s thinking)
○ Case law has made margin smaller
(Theory) Dual role of dignity
The article (Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human
Rights Treaties,’ (2012) 12 Human Rights Law Review, pp. 199-219) posits that dignity plays a
dual role: as a protective barrier against the violation of the right to life (When applied practically,
dignity as a barrier implies that individuals should be protected from degrading treatment,
inhumane living conditions, or any form of arbitrary deprivation of life that would violate their
humanity.) and as a guiding principle for its interpretation (This means that "life" in human rights
law is interpreted to mean a life of quality, where individuals have access to basic necessities, a
safe environment, and respect for their autonomy.).
(RGMUIER016)
Condensed notes for exam
Week 1 - Right to Life
The focus of this lecture is on the right to life as in, among others, Article 6 ICCPR, Article 2
ECHR, Article 4 American Convention on Human Rights (ACHR) and Article 4
African Charter on Human and People’s Rights (ACHPR). The right to life holds a central
position in human rights law as the foundational right that allows an individual to enjoy all
other rights.
This lecture will focus on the scope of the right to life and the instances in which
a person may be lawfully deprived of their life. In looking at these examples, the lecture
focuses on the case law that has been generated on the right to life, which clarifies principles
of necessity, lawfulness, and proportionality.
The lecture will also look at the positive obligations that are part of the right to life, including the
obligation to protect life, the obligation to conduct an effective investigation and the obligation to
protect individuals from the acts of third parties.
Obligations
● Restrictions: negative obligations (death penalty, non-arbitrary)
● Positive obligations
○ Substantive: protect against lethal violence by non-state actors or circumstances
○ Procedural: investigate deaths or disappearances
Scope of right to life
1. Unborn children and abortion
a. ICCPR HRCtee Gen Comm (GC) 36: para 8 - abortion to be regulated, provide
safe conditions to women and girls
b. African system GC 3: no mention
c. Inter-American system Art 4(1) ACHR: “in general, from moment of conception” =
vague because it was political compromise
i. IACtHR
1. Artavia Murillo v Costa Rica (IVF) 2012
a. Para 263: States can decide for themselves what to
prohibit
, b. Para 264: You gradually gain rights and protection, it’s not
absolute and unconditional, exceptions are understandable
d. ECHR system
i. Unborn child: VO v France 2004
1. Accidentally removed Vo’s reproductive organs in hospital due to
mix-up. Right to life.
2. Para 82: States have margin of appreciation
3. Para 85: Court doesn’t want to draw a line specifically on whether
unborn child is a person under art 2
ii. Fetus v abortion: P and S v Poland 2012
1. Para 97: consensus among substantial majority of European
States = different possibilities are allowed
e. Courts don’t want to take a hard stance because the countries under their
jurisdiction have different cultures, political diplomacy…
2. Euthanasia
a. Assisted suicide: few States allow medical practitioners to prescribe legal drugs,
others criminalize it
b. No right to die
i. Pretty v UK 2002
1. Pretty had terminal autoimmune disease and wanted to die with
help of her husband. They started a case arguing that if there is a
right to life there should be a negative right not to live. If there is a
right to marry, it doesn’t mean everyone has to marry, they have a
right not to marry.
2. ECtHR said the right to die goes too far and Pretty lost the case.
c. Withdrawing life support
i. Burke v UK 2006
1. Margin of appreciation on how States do it but there is a
presumption strongly in favor of prolonged life (doctor tries all they
can).
2. ECtHR did not want to say that this means you can never decide
to die.
d. ECHR = usually wide margin of appreciation
i. Margin is not endless (ex. State can’t give Pretty’s husband death penalty
for “killing” his wife)
3. Other situations other than death
a. Life-threatening but not dead (someone might have gotten killed but survived it)
i. Chongwe v Zambia HRCtee 1998
ii. Makaratzis v Greece ECtHR 2004
iii. GC 3 African COmmission para 8
iv. Even if the person didn’t die but the facts show that it was
life-threatening, you can still argue that it’s right to life
, b. Unknown whether dead or alive - enforced disappearances
i. Varnava et al v Turkey
ii. State has duty to investigate what happened
iii. Temporal element: it starts the moment someone is disappeared, and
lasts until the person is found / the truth is found = continuing human
rights violations
4. Quality of life: to have a decent/dignified life (links to other rights, such as
socio-economic)
a. Inter-American system
i. Villagran Morales v Guatemala 1999
1. Street children killed by security forces. Court said beyond the
killing, the children were already living in poor circumstances in
which the context was not dignified = early recognition of right to
life meaning more
b. African system
i. ACHPR GC No 3 2015 and Social and economic rights Action Centre and
the center for economic and social rights v Nigeria 2001
1. Not only life in a narrow sense, but a dignified life = broad
definition
c. See Wick on Dignity and the Right to Life
i. Why we protect the right to life is to protect human dignity. From that
starting point, it makes sense to not only keep people alive but also give
them dignified living circumstances.
ii. Dignity can also be used to argue against right to abortion and euthanasia
Restrictions to right to life
● Relative right, not absolute
● Two exceptions:
○ Death penalty
○ Non-arbitrary use of force which may result in death
Death Penalty
● Slowly decreasing
ICCPR art 6(2)
Limitations: ICCPR 2nd OP = abolishment of death penalty and we won’t reintroduce
(over 90 States are parties)
Inter-American ACHR Art 4(2) = once you’ve abolished you can’t reintroduce it
, Both these treaties have similarities:
1. Can only be used for most serious crimes
2. Procedural guarantees (can only be decided after fair trial)
3. Not applicable for certain vulnerable groups (under 18, pregnant women, decreased
mental abilities)
4. Non-retroactivity (you can’t impose it for crimes before death penalty began)
5. Both treaties encourage abolishment of death penalty
African system ACHPR
● No mention, yet applicable
● African COmmission GC no 3
ECHR Protocol 6 and 12
● Widely ratified (abolishing) except for Azerbaijan
● Al Sadoon and Mufdhi v UK 2010 para 120: “consistent State practice indicative that Art
2 now prohibits death penalty in all circumstances”
Use of lethal force
● Most HR treaties: “arbitrarily” = there are situations where State can kill
● Examples:
○ Art 2(2) ECHR: use of force which is no more than absolutely necessary
i. In defense of any person from unlawful violence (ex. police kills school
shooter)
ii. In order to effect a lawful arrest or to prevent the escape of a person
lawfully detained (ex. Killing someone trying to escape prison = very
1950’s thinking)
iii. In action lawfully taken for the purpose of quelling a riot or insurrection
(ex. If many people become violent = also 1950s thinking)
○ Case law has made margin smaller
(Theory) Dual role of dignity
The article (Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human
Rights Treaties,’ (2012) 12 Human Rights Law Review, pp. 199-219) posits that dignity plays a
dual role: as a protective barrier against the violation of the right to life (When applied practically,
dignity as a barrier implies that individuals should be protected from degrading treatment,
inhumane living conditions, or any form of arbitrary deprivation of life that would violate their
humanity.) and as a guiding principle for its interpretation (This means that "life" in human rights
law is interpreted to mean a life of quality, where individuals have access to basic necessities, a
safe environment, and respect for their autonomy.).
