There is a ‘right to life’ Article in a number of international and regional human rights treaties which is not currently being employed to give the full potential effect to the right.
There are issues arising ‘beyond the horizons’, particularly with regard to the identity of the rights-bearer, the ‘human’ in the international law of human rights, that fail to be addressed by a restrictive interpretation of the right, and consequently may permit intolerable injustice to take place with impunity. For instance, a failure to recognise the human represented by human genetic material and to record it the respect called for by an expanded notion of human dignity has implications for the future, when ‘new humans’ – clones, hybrids, chimera – might enter the realm of created beings, with, it is argued here, a valid claim to respect for their human rights entitlements, including that their right to life shall be protected by law.
The aim of this thesis is to promote a more effective interpretation of the right to life provision, by means of a dynamic and evolving interpretative theory which is both legally and morally valid in international law. This teleological approach, drawing on the ‘living instrument’ analogy which has been widely accepted by the courts and tribunals in order to best promote the object and purpose for the human rights treaties, is necessary as the horizons of the future become the realities of today. Any failure to realise the impact of those technologies on the lives of humans will be to deny those realities for whole classes of beings who should, morally and in the pursuit of justice, have a claim to be classed as human rights-bearers.
TREATIES, INTERPRETATION, AND THE
RIGHT TO LIFE
‘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.’ The right enshrined in this article is the supreme right of the human being. Human Rights Committee, Baboeram-Adhin et al. v. Suriname89
2.1 GENERAL INTRODUCTION
The nature of human rights treaties, described by the ECtHR as ‘[u]nlike international
treaties of the classic kind’,90 is more than an undertaking which establishes ‘mere
reciprocal engagements between Contracting States’.91 What the nature of that
undertaking is, and how they should be best interpreted (with particular reference, in this context, to their right to life provisions) is the subject of examination in this chapter. The aim is to secure a sound basis for an exploration of issues, currently ‘at or beyond the horizon’, which require addressing by human rights discourse, in order that the provision, ‘the right to life shall be protected by law’ shall be given full effect.
The ideal of the recognition and protection of human rights by the development of treaties
89
Baboeram-Adhin and Kamperveen et al. v. Suriname, Views, para.14(3), citing Article 6, ICCPR.
90
ECtHR, Loizidou v. Turkey (Preliminary Objections), 23 March 1995, paras.71–72.
was facilitated by the establishment of the United Nations,92 and the work that was then
undertaken to formulate a regime of international human rights protection93 served to
establish the proposition that there was – and is – a justiciable concept of human rights,
including a right to life. As Colon-Collazo94 points out, ‘the first proclamation in the
Western Hemisphere of every human being’s inherent right to life was made in 1776, in
the June 12 Declaration of Virginia95 and the July 4 United States Declaration of
Independence,96 where it was manifested that every man had inalienable rights to ‘life,
liberty and the pursuit of happiness’.
The task of this chapter is to clearly articulate the right to life provision as it is now included in major international and regional treaties, establishing where the ‘protection of life’ proposition can be found in law, and the appropriate method of interpretation. The world is now a very different place from that envisaged at the inception of the treaties, and ensuring that the object and purpose of the treaties is established and promoted will, it
92 Although it took some time; the Council of Europe’s [COE] ECHR was adopted in 1950, 16 years before the
UN’s ICCPR. For a record of the creation of human rights systems as an ‘ideological response to war’, see Simpson, (2001), Chapter 4.
93
See, for instance, Yearbook of the United Nations, 1947-1948, Section G.1.a, p.572: ‘At its fourth session, the Economic and Social Council established a procedure and a timetable for the formulation of an International Bill of Human Rights (resolution 46(IV)).’ See also Henkin (1981). Shue suggests the following list as including the necessary material for an International Bill of Rights: UN Charter, Preamble and Articles 1, 55, and 56; UDHR; ICESCR; ICCPR; ICCPR [First] Optional Protocol. Shue, (1980) Introduction, endnote 1, p.181.
94
Colon-Collazo, ‘A Legislative History of the Right to Life in the Inter-American Legal System’, in Ramcharan (ed.)(1985) at p.33.
95
George Mason, Author; adopted by the Virginia Constitutional Convention on June 12, 1776: Section 1: ‘That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.’
96 Thomas Jefferson, Author (June, 1776) In Congress, July 4, 1776. The unanimous Declaration of the thirteen United
States of America:
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, … ’.
will be argued, require a flexible interpretive theory, in order to meet the demands of issues and situations, such as the scenarios introduced earlier, which are currently ‘beyond the horizon’ but which may not stay out of reach for long.
This will then pave the way for an examination in the next chapter of the concept of the rights-bearer – who is ‘the human’ who has their life protected by law? The fourth chapter will consider more deeply the nature of that protecting law, but for the present it is important to place human rights protection in its normative context, and to consider its claim to development as a ‘living instrument’, in order to consider the validity of a dynamic interpretation of the right to life provision in those treaties, meeting the need of ‘looking beyond the horizons’.