AC.08.04.01 - Realizar acciones de diseño, implementación y seguimiento de los Planes de Igualdad de la UCA

1.5.1 A

P

S

Whilst existing work on the subject of the right to life itself78 is limited, works covering

the theories and practice of human rights generally contribute to the analysis of specific

78

See Ramcharan, (Ed.)(1985); Ramcharan (1983); Przetacznik (1976); and reviews of Ramcharan and contributors, Bedau, (August 1988) and van Aggelen, (July 1986); Orlin, ‘The Right to Life / The Right to Die: The Rights, their Interrelationship and the Jurisprudential Problems’ in Orlin, Rosas and Scheinin (Eds.) (2000); Prémont and Montant, (Eds.) (1993).

rights, whilst other texts focus on a particular aspect of the right79 (such as capital

punishment80 or the life of the unborn81). The right to life is presented, in the main, with

the civil and political rights. The general view of writers has been that such rights are negative obligations, requirements for States to refrain from action that violates the right concerned, the reasoning being that such requirements do not involve much in the way of

expenditure;82 this view is losing force in the light of evolving understandings of human

rights, their function and attendant obligations, and in the recognition of the positive

obligations to be found attached to ‘even’ the civil and political rights.83 The only major

work on The Right to Life in International Law is that edited by Ramcharan in 1985,84

which contributed to an expansion of the earlier accepted scope of the provision.85

1.5.2 M

I

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The issues involved in analysing a matter generally abbreviated to four short words – ‘the

right to life’ – but better paraphrased as ‘the right to life shall be protected by law’86 are

formidable, the fields cross-disciplinary and the arguments circular. This thesis will, at an early stage, provide a general overview of the treaty provision found in, for instance, Article 6 of the International Covenant on Civil and Political Rights [ICCPR], Article 2 of the ECHR, Article 4 of the ACHR and Article 4 of the African Convention on Human and

79 _{Joyce (1961); See also St.John-Stevas (1963); Williams (1997); Prémont, Tom, and Mayenzet, (Eds.) (1998);}

Okechukwu (1990); Plowman (1942); Keen (1992). See also texts such as The Bossuyt Report: The Adverse

Consequences of Economic Sanctions on the Enjoyment of Human Rights (2000).

80

See supra, n.11.

81

See Ibegbu (2000).

82

Joseph, Introduction, para.1.55 in Joseph, Schultz, and Castan (2000).

83

See Mowbray, (2004).

84

Including Ramcharan, (1985) ‘The Concept and Dimension of the Right to Life.’

85

See n.305, infra, and accompanying text.

86 _{To be discussed further, below; but see, for instance, the Concurring Opinion of Sir Stephen Sedley in}

ECtHR, Keenan v. United Kingdom, 03/04/2001, para.2. ‘Article 2 contains not a general assertion of the right to life but a specific obligation of states signatories to protect that right by law.’

Peoples’ Rights [ACHPR],87 the concept that is ‘the right to life shall be protected by law’. Excluded, as being beyond the scope of this thesis, will be discussion of the right in its wider context, that which has come to be known as a ‘right to living’ and which was first presented in a major context in Ramcharan’s edited text of 1986, The Right to Life in

International Law.

1.5.3 M

It is not possible to see how any attempt to define ‘life’, or what it means ‘to have life’, or to be a ‘human’ or a ‘person’ or to have not achieved these states or to have lost them in some respect or another, can be addressed without canvassing a wider field of knowledge than that found within the confines of a single academic field, and so the approach to this

thesis is cross-disciplinary.88 However, whilst philosophy, religion, biology, medicine,

physics, psychology and history are amongst the disciplines called upon to some extent or another, the focus is that of international human rights law, and therefore the full available scope will be used to clarify positions within international law. Whilst the reader may be pointed to sources on relevant matters, much descriptive and analytical detail of other

87 _{For general texts, see e.g.: Alston, (Ed.) (1996); Craven (1995); Dinstein, ‘The Right to Life, Physical}

Integrity, and Liberty’ in Henkin (Ed.) (1981); Dixon and McCorquodale (4th _{ed., 2003); Harris, O’Boyle, and}

Warbrick (1995); McCorquodale, (Ed.) (2003); Newman and Weissbrodt, (2nd _{ed.,1996); Rehof in Alfredsson}

and Eide (1999), pp.89-101; Steiner and Alston (1996).

88

Methodological note: it is incumbent upon me here to state some limitations of the research which follows. As a lawyer, and not trained in the study of philosophy, medicine, biology, anthropology, psychology, religion, economics and history – all of which receive some mention in this thesis – I have had to rely upon the scholarship of others in order to arrive at sufficient knowledge of a particular field. This I have done by consulting relevant literature including dictionaries, encyclopaedias, and commentaries, and making internet searches, initially, and where appropriate using these as pointers to original works. Current journals have been of particular help (such as the BMJ). Following this, I have checked the understandings at which I have arrived by interview with one or more people skilled in the field, (as noted throughout the text) and whilst I am grateful to these, and others, the final choice of sources, and the conclusions that I have drawn, remain mine.

disciplines’ knowledge base will not be entered into unless there is some particular point to be served by so doing, or unless there is particularly great controversy surrounding an important contribution. Additionally, there is not space to enter into a thoroughgoing analysis of some of the major themes even in law; readers will, again, be pointed to more authoritative references as appropriate.

The task of this thesis is to establish and define in international law terms that there is a ‘special spark’, something that makes humans capable of acting with dignity, and worthy of being treated with respect for their inherent dignity, and that this immaterial aspect places an obligation upon States to recognise its presence in human life and to work to promote and sustain that life in wellbeing.

To that end, the thesis will take the following form. Following this introductory first chapter, there are four substantive chapters of this thesis, and a Conclusion, drawing together the issues presented. The right to life article itself, as set out in international and regional treaties, will be considered in Chapter Two. Under examination will be aspects of the right gleaned from the texts – who the relevant right to life articles cover, how they have evolved over time, and how they should be interpreted, particularly in the light of human rights’ law’s relationship to the general canon of public international law.

This will lead into an examination of the subject matter of international human rights law, the human, in Chapter Three, and an analysis of inherent dignity, the quality which entitles that human to be singled out as a rights-bearer. Included in this, a case will be made for acknowledging the need to show respect for an extended notion of human dignity in dealings with human genetic material. A justification for this broad class will be made, and a definition suggested of what is meant by human genetic material in this

context.

The treaty provisions are re-addressed, in Chapter Four, in order to establish whether the paraphrase briefly introduced in the first substantial chapter, that of the right to life being ‘protected by law’, is a valid conclusion to draw from the right to life provisions, which is then discussed more fully in the light of an interpretation based on the ‘Radbruch formula’. In this interpretation, the notion of ‘unbearable injustice’ is assessed against a framework of ‘preventable human suffering’ and recognition of inherent human dignity, as a standard for analysis of the substantive law.

The work done in earlier chapters is then applied in Chapter Five to the offered definition of a rights-bearer, the human represented in the narrow sense by human genetic material, more generally by individual living humans, and in the broader sense by human populations at risk (including future generations). The issues briefly introduced in the first chapter will be examined in the light of the work done, particularly in the context of the work that could be accomplished by human rights discourses to protect the human’s right to life from unbearable injustice, such as may be perpetrated by an interpretation that places any requirements on the rights-bearer of ‘personhood’. The proposed solution is to argue for broader definitions, both of the human and of the life protected, than is currently the case, and for a greater realisation of what is at stake in human rights jurisprudence regarding the right, involving issues of the moral nature of the protecting law at national level.