Part III Substantive Guarantees, 9 Protection of Human Existence: Right to Life and Subsistence Rights
Walter Kälin, Jörg Künzli
- Right to life — Right to food
Human life is protected under international law by an array of rights.
The right to life plays a central role in this regard, and is generally characterized, alongside the prohibition of torture and the right to food, as one of the most fundamental human rights.1 Despite its name (right to life) it does not guarantee human existence as such. Rather, it protects against deprivation of life by state action or as a consequence of its omissions. Although the right is non-derogable in times of a public emergency, the right to life is not absolute. Treaty law provides for three exceptions to the rule that prohibits the taking of human life:
(1) Killing by state agents cannot be characterized as a violation of the right to life if the lethal outcome is unavoidable in circumstances of self-defence, defence of others, or any other legitimate and proportional law enforcement action that, although not intended, may result in death.
(2) Execution of a death sentence imposed in a fair trial in a state where capital punishment has not been abolished does not constitute a violation of human rights if certain specific and strict procedural and substantive conditions are met.
(3) Killings in the context of armed conflicts are permissible if they are compatible with the requirements set out in international humanitarian law (IHL).
Beyond the state obligation to respect, the duty to protect is of cardinal importance to the effective realization of the right to life.
Where killings are aimed at the systematic destruction of a particular national, racial, ethnic, or religious group, they meet the definition of the international crime of genocide. Deemed to be the most serious of all crimes, genocide entails individual criminal responsibility at the national and international level as well as the responsibility of the state on whose behalf the individuals act.(p. 260)
The right to food, the core of the right to an adequate standard of living, is the only right characterized as “fundamental” in the text of the UN human rights covenants. However, although many people die from hunger or lack of medical care under circumstances that could have been avoided if the state had taken appropriate measures, the threat to life from a lack of food, and indeed also from lack of health care, is far less widely perceived to be a human rights issue. Human existence, though, is not just about survival, it is also about a minimum level of dignity that is not guaranteed for the many hundreds of millions of people who are undernourished, homeless, or deprived of adequate medical care even if these deprivations are not immediately life-threatening. The protection of human life must therefore also embrace subsistence rights and the right to health.
Relevant provisions: UDHR, Article 3; ICCPR, Article 6; ICCPR-OP2; CPPCG; CRC, Article 6(2); CRPD, Article 10; ACHPR, Article 4; ArCHR, Articles 5–7; ECHR, Article 2; P 6/ECHR; P 13/ECHR; IACHR, Article 4; GC I−IV, Article 3; GC III, Articles 13 and 100 ff; GC IV, Articles 27, 32, 68, and 75; AP I, Article 75(2); AP II, Articles 4(2) and 6(4); Rome Statute, Articles 6, 7(1)(a) and 8.
1. The notion of life
Article 6(1) of the ICCPR and equivalent guarantees in the regional conventions stipulate that every human being has the inherent right to life. While the notion of human life as such does not need further clarification, the question arises as to when such life begins and when it ends. These issues are often defined for purposes of domestic law, for example, referring to birth as the time when the legal capacity as human being begins2 or considering a person deceased upon the “irreversible cessation of circulatory and respiratory functions or . . . of all functions of the entire brain, including the brain stem.”3
Treaty texts are silent on the highly controversial issue of when life begins. The only exception is IACHR Article 4(1) providing that the right to life shall be protected “in general, from the moment of conception.” The IACtHR found that conception “occurs at the moment when the embryo becomes implanted in the uterus” and held that “it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to [the foetus’] development.”4 The Grand Chamber of the ECtHR determined that, given (p. 261) the absence of uniform European legislation on the issue, states parties possess a large margin of appreciation in settling the question themselves. In the case at hand, as British law did not recognize individual rights of a fecundated egg cell, the Court decided that the destruction of human embryos did not fall under the protection of ECHR, Article 2.5 Although the HRCttee addressed abortion issues on several occasions, its focus was always on the rights of the mother.6 However, it is clear that life, as protected by human rights law, starts no later than birth. Thus, for example, euthanasia programmes for severely handicapped new-born babies arguably constitute a violation of the right to life.7
At the other end of the spectrum, the controversy surrounds not the identification of the time of death but whether mentally competent individuals derive from the right to life a right to euthanasia, that is, the deliberate termination of their life with the assistance of a third person, or by way of access to drugs used to commit suicide. The controversy extends to the question of whether the state’s duty to protect requires that the termination of life be punishable also in the case of persons who are incurably ill.8
The right to life may in exceptional cases be violated even if nobody is killed. This is the case, for example, where the victim of indiscriminate fire by the police “fortuitously” survives,9 or where a person manages to escape an attempt by a police officer to kill him.10
2. Duty to respect life
The protection of the right to life is not absolute. ICCPR, Article 6(1) and most regional conventions11 prohibit the “arbitrary” deprivation of human life, without, however, defining the notion of arbitrariness. According to the HRCttee, deprivation of life is, as a rule, arbitrary if it is in violation of domestic law. Where domestic law permits (p. 262) certain cases of killing, such acts are arbitrary if they contain “elements of inappropriateness, injustice, lack of predictability, and due process of law” as well as lack of “reasonableness, necessity, and proportionality.”12 ECHR, Article 2 contains a list of circumstances where killings by state actors do not amount to a violation of the right to life. Furthermore, ICCPR, Article 6(2) and several regional conventions13 impose certain limits on the use of the death penalty, but do not prohibit it.14
Thus, although subject to restrictive conditions, state actions may be permissible even if they result in death where they are the consequence of lawful use of force by police and other law-enforcement personnel (see (b) below); take the form of an execution of a death penalty imposed by a court (see (c) below); or take place in accordance with IHL in the context of an armed conflict (see (d) below).
(b) The prohibition of arbitrary killing by law enforcement officials
The prohibition of arbitrary deprivation of life is particularly important in the context of use of force by the police and other law enforcement officials. While acts such as the killing of political opponents or the premeditated murder of persons in custody (including in the context of disappearances) constitute clear violations of the right to life, the line between prohibited and permissible use of lethal force in the context of law enforcement is not always easy to draw.
Pursuant to ECHR, Article 2(2), law enforcement officials may use force, notwithstanding a potentially fatal outcome, in self-defence, in the defence of others, to arrest a person, and to quell an insurrection where the force used is no more than that which is absolutely necessary. This provision should not be read as enumerating the circumstances in which the state is allowed intentionally to kill, but rather as listing the conditions in which the right to life is not violated notwithstanding deprivation of life15 because the use of force in pursuit of one of the delineated aims is absolutely necessary and proportionate.16 Under these circumstances, force may be used even where there is no certainty that a fatal outcome can be avoided. Force with the deliberate aim of killing may be used in extremis and as a last resort in circumstances of genuine self-defence (p. 263) and necessity, and only in such circumstances.17 If that condition is not met, the intentional killing of a human being other than in an armed conflict is always a violation of the right to life, even, for instance, in the case of the extrajudicial killing of a terrorist.
It follows also from the less detailed jurisprudence of the HRCttee and the other regional conventions that the use of lethal force is a violation of the right to life unless it pursues a legitimate aim18 and is proportionate to the requirements of law enforcement in the circumstances of the specific case.19 Given the special importance to be attached to the safeguarding of human life, these conditions should be no less strictly construed than in the case of the ECHR. Thus, also under the ICCPR, using “potentially lethal force for law enforcement purposes is an extreme measure, which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.”20
Furthermore, all conventions introduce an additional protective element by stipulating that the right to life is to be protected “by law.” Thus, states parties are required to set out in concrete terms the circumstances in which security forces may use force, in particular the preconditions for shooting to kill.21 However, even where certain forms of killing are permitted by law, they may nevertheless constitute a breach of a state’s obligation to protect life through law in cases where the legislation in question permits or tolerates lethal actions that are incompatible with the prohibition of “arbitrary” deprivation of life.22
These are very high thresholds for the use of lethal force, and thus it should not come as a surprise that authorities planning the use of force are obliged to take precautionary measures with the aim of avoiding potentially lethal outcomes in order to be clear of responsibility under the right to life. The approach taken by the ECtHR since its 1995 McCann case23 still constitutes the very rigid standard that is applicable to determine the permissibility of extrajudicial killings. According to it, the use of force as such must, in principle,24 (p. 264) be “absolutely necessary”25 for the achievement of a legitimate aim, the planning and control of the operation26 must ensure that every step is taken to safeguard life, and force is resorted to only when, according to the knowledge available at the time of the action, a risk to the life of others cannot be dealt with in any other way.27
These requirements are also applicable, in principle, under the ICCPR.28 Thus, in the Guerrero case, the HRCttee held Colombia to task over the fact that the victims of a police operation had not been warned and had been offered no opportunity to surrender.29 The HRCttee also insists that law enforcement officials are supplied “with effective ‘less-lethal’ means and adequate protective equipment in order to obviate their need to resort to lethal force”30 and use such weapons in accordance with “strict requirements of necessity and proportionality.”31
Clearly, the right to life is also violated where an agent of the state inflicts wounds on an individual that would not be lethal if treated properly but bars the victim’s access to available health care and, as a consequence of which, the person dies.32 The same must be true where life-saving access to health care or food is blocked by deliberate state action, even if the state has not caused the life-threatening condition.33
(c) The death penalty and efforts to abolish it
International customary international law does not prohibit the death penalty as such. However, there is now a largely uncontested view that customary law prohibits the execution of persons below eighteen years of age at the time of commission of the crime, pregnant women, and persons suffering from a mental disorder.34(p. 265)
According to treaty law, capital punishment is a permissible criminal sanction provided that certain strict conditions are met. These restrictions are set forth in detail in the ICCPR, the regional human rights conventions and IHL instruments.35 Optional protocols to the ICCPR and regional conventions go one step further by prohibiting the imposition of the death penalty in peacetime and even during armed conflict.36
ICCPR Article 6 and IACHR, Article 437 limit the possibility to impose the death penalty to states that have not abolished capital punishment in their domestic law or are not parties to a treaty on the abolition of the death penalty. Such states may impose capital punishment only if a series of conditions, which are to be narrowly construed,38 are met in the case at hand:
(1) The death penalty may be imposed, as an absolutely exceptional measure, only for what constitutes, in objective and subjective terms, the most serious crimes committed with intent, that is, “crimes of extreme gravity, involving intentional killing.”39 The “most serious” condition is not met for “[c]rimes not resulting directly and intentionally in death, such as attempted murder, corruption and other economic and political crimes, armed robbery, piracy, abduction, drug and sexual offences”40 or trading in hazardous waste41 and smuggling or espionage.42 The death penalty is automatically prohibited under the ICCPR if it is “applied as a sanction against conduct whose very criminalization violates the Covenant, including adultery, homosexuality, apostasy, establishing political opposition groups, or offending a head of state.”43 The requirement of seriousness also applies to “the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements.”44 Therefore, criminal provisions that make the death penalty mandatory for certain offences and thus prohibit to take into account the offender’s degree of culpability and other personal circumstances, constitute in all cases a violation of the Covenant.45(p. 266)
(2) Criminal legislation providing for the death penalty must be framed in such a way as to be consistent with other human rights guarantees set forth in the ICCPR. In particular, such legislation may not prescribe methods of execution that amount to inhuman treatment, that is, cause suffering or humiliation beyond the pain and anguish inherent in an execution. Thus, “stoning, injection of untested lethal drugs, gas chambers, burning and burying alive, and public executions, are contrary to article 7” of the ICCPR and thus also prohibited under its Article 6.46 Execution without timely prior notification of its date also amounts to inhuman treatment.47 However, upon a close interpretation of the ICCPR, it is difficult to argue de lege lata that executions constitute per se inhuman treatment and are therefore prohibited under international law.48 However, the HRCttee considers that the very large number of states which have abolished the death penalty or introduced a moratorium on executions may be understood as considerable progress towards recognizing such prohibition.49
(3) Furthermore, a death sentence may be imposed only in accordance with criminal laws that were in force at the time of commission of the crime.50 This requirement relates to the prohibition of retrospective laws.51 If, subsequent to the commission of the crime, a lighter penalty is introduced or the death penalty is abolished, the more lenient provision is always applicable (the lex mitior principle).52
(4) Death sentences are only permissible imposed in a fair trial before a competent court.53 National laws that provide for the death penalty, and the criminal proceedings themselves, must therefore comply with the procedural safeguards set out in ICCPR, Article 14 and its regional equivalents,54 and imposition of capital punishment in violation of fair trial guarantees not only amounts to a violation of this provision but automatically also of ICCPR, Article 6.55 Military courts in particular are hardly ever capable of meeting these requirements in proceedings against civilians.56(p. 267)
(5) As mentioned, the execution of persons below eighteen years of age at the time of commission of the crime and of pregnant women is prohibited.57 Furthermore, the HRCttee and regional bodies now recognize a general prohibition on executing persons with serious psycho-social and intellectual disabilities.58 Article 4(5) of the IACHR also prohibits the execution of persons who are over seventy years of age.59
(6) Lastly, as explicitly stipulated in ICCPR, Article 6(4) and IACHR, Article 4(6), anyone sentenced to death should be given the opportunity to seek pardon or commutation of the sentence.60
If any of these requirements is not met, the right to life is not only violated in cases where the person concerned is actually executed, but also where a moratorium on the death penalty makes execution unlikely.61 In light of the fears triggered by the impending execution, disregards for these requirements may also amount to inhuman treatment.62 The right to be protected against inhuman treatment also protects relatives who are not provided “with information on the circumstances of the death of an individual” or on “the location of the body, and, where the death penalty is applied, of the date in which the carrying out of the death penalty is anticipated.”63
(ii) Abolition of the death penalty
A clear trend towards abolition of the death penalty has emerged in recent decades. In international law, this development is reflected in three areas.
(1) Prohibition to reintroduce capital punishment: IACHR, Article 4(3) prohibits states that have abolished the death penalty from re-establishing it. In its second paragraph, the same article forbids states parties to the convention from extending the applicability of capital punishment to crimes that did not warrant the death penalty before ratification.64 According to ICCPR, Article 6(2), capital punishment may persist only in countries that “have not abolished the death penalty,”65 (p. 268) and Article 6(6) indicates that the Covenant’s aim is to secure its abolition.66 Construing these provisions both grammatically and teleologically reveals a clear-cut preference in the Covenant for outright abolition of the death penalty.67 The Committee views all measures taken to restrict the application of the death penalty or to abolish it completely as progress in the enjoyment of the right to life;68 and encourages states that have not yet done so to abolish capital punishment if they have not imposed or carried out capital sentences for some time.69 Furthermore, abolitionist states are, according to the HRCttee, “barred from reintroducing it” in general or by transforming an offence, which does “not entail the death penalty, into a capital offence.”70 Accordingly, the HRCttee emphasizes that states which have abolished the death penalty are under an obligation not to expose people to the risk of its application by extraditing them to a country where they would be executed.71
(2) Treaty prohibitions of the death penalty: Protocols to the ICCPR, IACHR, and ECHR prohibit the death penalty under all circumstances, as summarized in Table 9.1.
P 6/ECHR (1983)
Prohibition of the death penalty in peacetime; national law may provide for the death penalty in respect of acts committed in times of war or of imminent threat of war.
Prohibition of the death penalty; a reservation may be made that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.
P 2/IACHR (1990)
Same as ICCPR-OP2.
P 13/ECHR (2002)
Absolute prohibition of the death penalty in peace and wartime.
(3) Prohibition of the death penalty in Europe: The question as to whether ECHR, Article 2 prohibits the reintroduction of the death penalty has little practical relevance in the European system today inasmuch as almost all states members of the Council of Europe have ratified the additional protocols concerning its abolition. (p. 269) For those that have not yet done so72 the case law of the ECtHR regarding capital punishment under ECHR, Articles 2 and 3 remains relevant. In 2005, the Court indicated that this sanction may no longer be permissible in peacetimes,73 and in any case constitutes inhuman treatment if pronounced after an unfair trial.74 Five years later, the Court concluded that, despite the permissibility of the death penalty pursuant to ECHR, Article 2(1), this sanction constituted an inhuman or degrading punishment and was therefore no longer admissible in Europe. To justify this step, the Court noted that only very few states had not ratified Protocol No 13, and argued that the high number of ratifications, “together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances” and concluded that “[a]gainst this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words ‘inhuman or degrading treatment or punishment’ in Article 3 as including the death penalty.”75
Is it permissible to extradite or otherwise remove an individual to a country where he or she would face the death penalty?76 It is generally accepted that this risk is not an absolute impediment to extradition on human rights grounds for states that have not abolished the death penalty under their domestic law. However, monitoring bodies made it clear that if treatment prior to execution (e.g. the conditions on death-row77) or the method of execution (e.g. asphyxiation in a gas chamber78) were themselves inhuman, then handing a person over to a state that would execute him or her amounts to prohibited inhuman treatment.79 In our opinion, the same must apply where, even in the absence of inhuman treatment, it is foreseeable that the death penalty would be carried out in violation of the other standards set out above80 as extradition in such cases would amount to enabling another state to violate the right to life.(p. 270)
What about states that have abolished the death penalty for themselves? Are they entitled to extradite or otherwise remove a person to a country where he or she would risk being sentenced to death and executed albeit in a way compatible with the requirements set out by ICCPR, Article 6 and the corresponding regional conventions? Originally, the HRCttee held that states were not in breach of the Covenant in such cases, even if they themselves had abolished the death penalty.81 In 2003, however, the Committee changed its view, holding that all states that had abolished the death penalty, regardless of whether they had ratified ICCPR-OP2, had an obligation to protect the right to life of all persons within their jurisdiction. They were therefore prohibited from extraditing a person who would be exposed to the risk of capital punishment.82 Today, the HRCttee states unequivocally: “States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained.”83
For a long time, the ECtHR allowed extraditions and other forms of removal where the death penalty in the country of destination was not imposed and executed in violation of human rights standards.84 However, it changed its approach in 2010 by deciding that at least states parties to P 13/ECHR were prohibited to extradite persons at risk of being executed.85 In light of the case law qualifying the death penalty as inhuman and degrading treatment,86 this prohibition must also apply to states that have not yet ratified the Protocol.
(d) The right to life in situations of armed conflict
According to the ICCPR and the regional conventions, the right to life is non-derogable in times of public emergency. Thus, its protective scope extends to situations of armed conflict, too. This raises the question as to whether acts of killings during armed conflicts are always incompatible with the right to life.
A negative answer is explicitly given by ECHR, Article 15(2) which prohibits derogation from Article 2 “except in respect of deaths resulting from lawful acts of war.” This provision declares killings during times of armed conflict as compatible with Article 2 if (1) the state concerned has made a declaration of derogation within the limits of Article 15, and (2) the specific act of killing is compatible with the requirements of IHL, that is, the body of law that determines when the taking of life is permissible during armed conflict. If, despite the existence of an armed conflict, no derogation has been (p. 271) declared,87 Article 2 continues to apply fully and the standards on the use of lethal force described above88 carry on determining whether acts of killing constitute a violation of the right to life.89
Unlike under the ECHR, there is no reference to the exception of “lawful acts of war” in the emergency provisions prohibiting derogation from the right to life of the ICCPR and the other regional conventions. It is nonetheless accepted that loss of life attributable to lawful acts of war is not deemed to constitute arbitrary deprivation of life and hence is not a violation of the right to life.90 This has been explicitly confirmed by the International Court of Justice when it stressed that “[i]n principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, . . . then falls to be determined by . . . the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”91 Thus, where the two bodies of law simultaneously apply, relevant provisions of IHL determine whether hostilities entailing loss of life in times of armed conflict constitute a violation of the right to life.
IHL does not impose a general prohibition on intentional killing since it accepts war as an inevitable occurrence and furthermore adopts no position with regard to the lawfulness of armed conflict. However, the fundamental principle of distinction requires that the “parties to the conflict must at all times distinguish between civilians and combatants” and that attacks may only be directed against combatants and never against civilians unless and for such time as they take a direct part in hostilities.92 The principle therefore permits the killing of combatants by combatants provided they use permissible means of warfare and permissible weapons for the purpose. On the other hand, the following categories of deprivation of life, in particular, are prohibited:(p. 272)
(1) The killing of persons “hors de combat”: “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause,” may never be killed93 and their lives must be protected as well as possible under the circumstances.94
(2) Deadly attacks on civilians: Civilians are persons who do not belong to armed forces and take no part in the hostilities.95 The absolute prohibition of making the civilian population as such, as well as individual civilians, the object of military attacks96 is of special importance for their protection. It is now enshrined in Article 51(2) of Additional Protocol I but is also applicable, as a fundamental principle of customary IHL, to states that have not ratified the Additional Protocol.97 Parties to an armed conflict must therefore distinguish between military and civilian objects and may direct their operations only against military objectives.98 Military objectives are “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”99 The destruction of objects of an exclusive military character such as military personnel and their weapons and equipment, defence facilities, defence ministries or facilities belonging to the arms industry regularly meet these requirements. In contrast, in the case of so-called dual use objects such as ports, streets, bridges, canals, and other infrastructural facilities, fuel-supply, and communication facilities, and militarily relevant terrain such as bridgeheads or hills, the requirement of definite military advantage must be present in the specific case.100 In case of doubt “whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”101 unless it has been diverted for military purposes. Therefore, with respect to the right to life, intentionally killing (p. 273) members of armed forces is permissible, whereas civilians must never be made targets. If they are killed because they are in the immediate vicinity of a military target or present at the location of a dual-use object, the attack is prohibited if the collateral damages “would be excessive in relation to the concrete and direct military advantage anticipated,”102 that is, prohibited for lack of proportionality.103
(3) Indiscriminate attacks: Such prohibited attacks comprise “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”104 It follows that the term “indiscriminate” is applicable, inter alia, to an attack by bombardment “which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.”105 Another category of indiscriminate attacks comprises those directed against a military objective but causing disproportional collateral damages.106 In its Advisory Opinion on the legality of the threat or use of nuclear weapons, the ICJ left open the question as to whether such weapons are in all circumstances incompatible with the requirement of distinction or whether they could be used without violating the prohibition of indiscriminate attacks.107
(4) The precautionary measures principle obliges states, in advance of any attack, to take steps to ensure that the prohibition of attacks on civilian objects and the prohibition of indiscriminate attacks are fully respected in practice.108 They must therefore verify that the selected objective is of a military character and choose means and methods that minimize incidental loss of life.109 Further, military objectives may not be located in a civilian environment, and the civilian population must be removed, to the maximum extent feasible, from the vicinity of military objectives.110
(5) Prohibited means of warfare: Finally, IHL forbids the killing of combatants through prohibited methods of warfare,116 with weapons that cause superfluous injury or unnecessary suffering,117 or by means that are otherwise explicitly prohibited.118
(6) Death penalty: IHL contains provisions that place restrictions on the imposition of the death penalty.124 Article 3 common to the Geneva Conventions imposes a general prohibition on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples.”125 AP I, Article 75(4) and AP II, Article 6 enumerate in detail the rights that must be respected during such trials. Furthermore, IHL prohibits the execution of pregnant women and mothers of small children, as well as persons who had not attained the age of eighteen years at the time the offence was committed.126
The ICCPR,127 the IACHR, the ArCHR, and the ECHR consistently require states parties to protect the right to life by law, thus underscoring the cardinal importance of obligations aimed at safeguarding life. This duty to protect against attempts on the life of a person by third parties or against dangerous situations128 is, for instance, violated where domestic criminal legislation fails to sanction certain homicide offences or provides excessive justificatory grounds for security forces. Crimes such as “intentional and negligent homicide, unnecessary or disproportionate use of firearms, infanticide, ‘honour’ killings, lynching, violent hate crimes, blood feuds, ritual killings, death threats, and terrorist attacks’ must be punished with sanctions that are commensurate with their gravity.”129
Obligations to protect arising from the right to life require states to enact clear legal provisions and to ensure that these norms are observed. This necessitates, for example, enacting and enforcing legal regulations for the protection of patients in private and public hospitals132 and persons with disabilities,133 or for the safety of buildings.134
However, legislative action is not sufficient by itself to honour this type of obligation. When a person’s life is put at risk by the action of other persons135 or animals;136 by natural dangers;137 by the dangers inherent to a building, technical facility, or enterprise;138 or, for instance, by anti-personnel mines used to secure a police station,139 states parties are required to take all “reasonable protective measures,” provided they “do not impose on them disproportionate burden,”140 if they know of the danger and have the possibility to react.
The duty to protect also obliges states “to take adequate preventive measures in order to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organized crime or militia groups, including armed or terrorist groups,”141 including, for instance, if specific information is available indicating an imminent terrorist attack on specific schools in a particular region.142 As mentioned above,143 the duty to prevent also requires states taking measures to ensure that law (p. 280) enforcement officials abstain from arbitrary deprivation of life.144 They must, for example, prevent police officers from using their service weapons outside their service in ways that are incompatible with human rights.145 States are also obliged to ensure that police officers possess the moral qualities and psychological aptitudes required for the proper performance of their duties,146 in particular when they receive their service weapon.147 Furthermore, law enforcement officials must be equipped with weapons and protective equipment that enable them to react proportionately to incidents.148
(b) Obligation to protect persons in state custody
The obligation to protect the right to life is particularly stringent in circumstances where individuals are in state custody, and thus in a particularly vulnerable situation.149 As a result, the case law of the ECtHR150 and the HRCttee151 not only recognizes a comprehensive duty to protect the lives of those in custody, but also provides for a reversal of the burden of proof: If a person dies while in custody, it is incumbent on the state “to provide a satisfactory and convincing explanation” that its authorities bear no responsibility for the death.152
In situations of custody, the state is required not only to afford protection against risks from third parties (e.g., other prisoners)153 but also to take reasonable measures to prevent suicide in cases of manifestly mentally ill and suicidal prisoners.154 The obligation of authorities to take measures preventing suicide also applies during military service.155
Hunger strikes by persons deprived of their liberty create particular challenges due to the tension between the duty of authorities to protect life and the right to private life of prisoners. In this regards, the ECtHR has developed the following principles;
1. A state is not violating its duty to protect life if a prisoner of sound mind wilfully exposes himself or herself to risk through a hunger strike despite having (p. 281) been offered medical care and information about the possible consequences of the strike and subsequently dies in detention without having been submitted to force-feeding or released as requested.156
2. A decision to force-feed made once it has been established that such action is necessary to protect the person from life-threatening or irreversible harm does not amount to a violation of the prohibition of inhuman treatment or the right to privacy.157 In contrast, force-feeding without establishing such medical necessity and undertaken in a manner that inflicts unnecessary suffering may amount to prohibited inhuman treatment.158
3. Forced-feeding of a person on hunger strike is, in principle, a permissible restriction of the right to freedom of choice as to the nature and time of one’s own death flowing from the right to private life159 because, as a rule, the person on hunger strike does not seek his death, but uses the strike as a means to exact his release of the fulfilment of political demands.160
Thus, the ECtHR leaves it to states to either resort to force-feeding or let the prisoner die. To date, the Court has not yet had to decide whether and under what circumstances contracting states must respect the explicit suicide wish of a prisoner capable of making such a judgement (so-called balance-sheet suicide).
Pupils attending a state school are also in the custody of the state. Thus, the “duty to safeguard the right to life is also applicable to school authorities, who carry an obligation to protect the health and well-being of pupils, in particular young children who are especially vulnerable.”161 Therefore, the death of a seven year old boy who froze to death when he was sent home during a snow-storm on foot was attributable to the state because authorities had failed to take measures that would have prevented this tragedy.162
Where a person released from state custody kills another human being, the responsibility of the state for a breach of its duty to protect is engaged only if it failed to ascertain with the requisite care whether the person’s release represented a danger to the public at large.163
The duty to protect life is also relevant for people who find themselves in hospitals and other health institutions. The state is, in particular, subject to increased duties of care towards persons with mental or physical disabilities who are accommodated in a state institution. If, for instance, a resident of a psychiatric clinic or home dies as a result of lack of medical care and despite a severe mental disability was not provided with a legal guardian who could have intervened on his behalf, the right to life is violated.164
What about deaths in hospitals due to medical malpractice? In this regard, the ECtHR’s Lopes de Sousa case is particularly important. As highlighted by the Court, the state’s obligations in this regard are, as a rule, limited to making “regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives.”165 As regards cases of alleged medical negligence, “the Court would normally find a substantive violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient’s life.”166 A direct violation of the right to life may only exist in exceptional cases, in particular “where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment” or “where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialiing, thus putting the patients’ lives, including the life of the particular patient concerned, in danger.”167
(d) Special obligations at the beginning and the end of life?
The question as to whether states have specific obligations to protect at the beginning and the end of life raises, in particular, ethical-juridical issues relating to the conformity of abortion and (active or passive) euthanasia to human rights norms.168
As mentioned above,169 international human rights law, with the exception of IACHR, Article 4(1), which extends the protection of life to the moment of conception, does not clearly define the beginning and end of life and leaves such decisions to domestic legislation. Nevertheless, the question of the existence of a state duty to protect, which is in any case never absolute, is a key issue that arises on a regular basis in these borderline areas.
As regards abortion, possible obligations to protect the unborn child must be weighed against the right to life and the right to self-determination of a pregnant woman. The HRCttee regularly criticizes absolute prohibitions of abortion, drawing attention to the serious risks to the lives and physical and mental integrity of women who (p. 283) consequently seek them illegally.170 Regarding ICCPR, Article 6, it stressed that while states “may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl”; rather, states “must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk.”171 In the absence of a threat to the life of the woman the HRCttee applies other relevant human rights guarantees.172
An actual right to abortion is guaranteed in Article 14(2) of the Protocol to the ACHPR on the Rights of Women in Africa in cases of pregnancies as a result of rape or incest and where the physical and mental health of pregnant women or the life of the foetus and expectant mother are endangered.173
Although the case law of the Strasbourg bodies has so far left unsettled the question of the extent to which a duty to protect unborn life flows from the right to life,174 it seems to proceed on the assumption that an absolute prohibition of abortion would be in conflict with human rights norms. States are therefore allowed a certain measure of discretion to permit abortion not only where there is a risk to the mother’s life and person but also on other grounds. The right to privacy, for its part, does not afford absolute protection for the mother’s freedom to interrupt her pregnancy. On the contrary, this entitlement may be restricted, providing states with the discretionary power to permit abortions only when certain conditions are met.175
At the other end of the life spectrum, the ECtHR held that an absolute prohibition of assisted suicide was consistent with ECHR, Article 2. It decided that states were not required to render certain actions intended to terminate life free from prosecution as no obligation to end suffering could be derived from the prohibition of inhuman treatment. The Court determined that even a blanket ban on assisted suicide was a proportionate interference with the right to private life owing to the high risk of abuse, and thus justified in order to afford protection to persons who, owing to deficient mental (p. 284) capacity, were unable to assess the consequences of such a decision.176 On the other hand, a statutory regime that permits euthanasia does not appear, per se, to be contrary to the right to life, provided that there are “robust legal and institutional safeguards to verify that medical professionals are complying with the free, informed, explicit and, unambiguous decision of their patients, with a view to protecting patients from pressure and abuse.”177 The ECtHR, emphasizing the margin of appreciation of states in this matter, held that to discontinue life-sustaining measures provided to a person in a vegetative state did not amount to a violation of ECHR, Article 2, in particular because in the case at hand domestic law provided adequate safeguards and ensured that the current and presumed point of view of all persons involved was taken into account.178
Consistent with the approach of not recognizing a “right to death,” states have a duty to protect persons in their custody from suicide, as shown above (section (b)).
4. Duty to fulfil
Effective protection of life entails the state obligation to fulfil, that is, to take positive measures beyond the obligation to protect. The obligation to fulfil comprises the following basic duties:
(1) Obligation to investigate: States are required, first, to investigate all unexplained deaths, particularly those having occurred in custody, with the requisite independence and diligence, that is, of their own motion and in a manner that ensures that those responsible are identified.179 This duty to investigate also applies to deaths in hospitals if it is unclear whether the death is due to medical malpractice.180 Where a state refuses to undertake such investigations or conducts them without due diligence, it violates the right to life and is liable to pay compensation to the relatives of the deceased person.181 Although proof of direct state responsibility for deprivation of life is unattainable in many cases due to evidentiary difficulties, such as in the case of killings by paramilitary (p. 285) groups, a state can still frequently be held responsible for violation of its obligation to investigate. In a case where it was impossible to prove that state authorities and not insurgents had laid anti-personnel mines that killed farmers in Chechnya, for instance, Russia was held responsible under the right to life because the authorities had failed to carry out an effective criminal investigation into the deaths.182
(2) Obligation to prosecute and punish: The obligation to prosecute and punish either state agents or private perpetrators under criminal law for unlawful killings is closely related to the obligation to investigate. As the HRCttee rightly stressed, the problem of impunity for infringements “may well be an important contributing element in the recurrence of the violations.”183 Amnesty provisions are at odds with the aim of combating impunity, but are sometimes seen as a necessary part of peace-building and reconciliation processes in the aftermath of armed conflict or periods of extreme violence. However, where an amnesty provision rules out the possibility of investigating unsolved killings, it is clearly incompatible with the right to life.184 Moreover, where the use of lethal force involves breaches of IHL amounting to war crimes, states are required either to punish those responsible or to extradite them to the state that has prime jurisdiction in the matter or to transfer them to an international criminal tribunal.185 A violation of the right to life may also occur if a custodial sentence pronounced for a homicide is not carried out for an unduly long time.186
(3) Obligations to fulfil in situations of state custody: Specific obligations to take positive measures in respect of fulfilment of the right to life exist in circumstances of state custody, namely in circumstances of detention and during sojourns in (state run) psychiatric hospitals. Detainees must be provided with sufficient food187 and with adequate medical care if they are sick. Additionally, their state of health must be monitored.188 Thus, states are required, even if they lack financial resources, to at least provide detainees suffering from life-threatening illnesses with medical care.189 The right to life is violated, for example, if a person (p. 286) in a state of severe alcoholic intoxication at the time of arrest is left without medical attention, despite serious symptoms, and subsequently dies190 or if the patient of a psychiatric clinic191 or a person deprived of her liberty192 shares the same fate due to lack of medical care. Moreover, the prison infrastructure should be designed in such a way that, in the event of an emergency, the lives of the detainees are, as far as possible, not endangered.193
(4) Obligation to fulfil in situations of state-caused dependence outside custody: The obligation of states to provide goods and medical services necessary for survival has been recognized by the IACtHR if people are unable to satisfy their subsistence needs as a consequence of the behaviour of state authorities. This happened, for example, when Paraguay refused to protect the land rights of indigenous communities who, as a consequence, were no longer able to pursue their traditional lifestyle leading to the death of some of their members.194 The ECHR concluded that the state party had to provide a child with life-long medication free of charge when it was, as a consequence of a blood transfusion, infected with HIV at birth due to the Ministry of Health’s failure to comply with its supervisory duties.195 In contrast, the refusal of state authorities to allow the use of as yet unapproved drugs for the treatment of a life-threatening illness did not amount to a violation of the right to life.196 Likewise, a state does not violate ECHR, Article 2, if it prohibits the parents of a fatally ill new-born child from travelling with the baby to another state for the purpose of using experimental treatment methods.197
(5) Obligation to take measures to enhance the protection of life: At the programmatic level of the right to life, states have a duty to take concrete steps to enhance the protection of life in areas in which it is particularly endangered. The HRCttee, which can express its views on such matters primarily through its state reporting procedure, has called on states to adopt measures to reduce infant mortality and to increase average life expectancy,198 or to bring about nuclear disarmament or to prevent war.199
The Nazi Holocaust focused the attention of the international community on the phenomenon of genocide, that is, the planned annihilation of entire national, ethnic, racial, or religious groups. The abhorrent nature of this crime, not only in quantitative terms but also because it selects victims solely on the basis of their affiliation to a group that the perpetrators aim to annihilate,200 makes genocide the most serious of all crimes. Although the crime was codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Convention has failed to prevent further cases of genocide. It was only after the end of the Cold War that it became possible, as is shown through the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda, to set up international courts to prosecute and punish perpetrators. Today, the International Criminal Court also has jurisdiction over the crime of genocide.
The prohibition of genocide has not only been enshrined in treaty law; genocide, as a criminal offence, is also a peremptory norm of international law (jus cogens)202 and must be prosecuted by all states regardless of the official status of the alleged perpetrators.203
(b) Definition under international criminal law
According to Article II of the Genocide Convention:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The definition of genocide thus consists of the following elements:204
(1) The perpetrator commits one of the following acts: kills or causes serious bodily or mental harm to one or more persons; forces one or more persons into life-threatening circumstances; imposes measures intended to prevent births; or takes away the children of one or more persons belonging to the group concerned. Thus, contrary to a widely held view, killing is not a prerequisite for the commission of the crime of genocide. It is furthermore irrelevant whether the acts were committed in time of peace or in time of war.205 Moreover, not only the direct commission of such acts but also incitement, attempt, and complicity are punishable pursuant to the Genocide Convention and other sources of law.206
(2) The victims belong to a particular national, ethnic, racial, or religious group. The perpetrator thus selects his or her victims solely on the basis of their membership of a group. Political or social groups are not covered by the definition of genocide.
(3) The perpetrator acts with the specific intent to destroy a group as such, or at least a substantial part of it.207 The intent to destroy a group in part “means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it.”208 This subjective element, which must contain an actual plan, is often difficult to prove.
(4) The acts occur in the context of a pattern of similar conduct directed against the same group, or could themselves effect the destruction of the group.
The judgment of the ICTY in the Krstić case concerning the genocide in Srebrenica209 illustrates the application of these elements. In his submission to the Appeals Chamber of the ICTY, the defendant argued that his conduct during the Srebrenica massacre did not amount to genocide as it had never been his intent to annihilate a substantial part of the Bosnian Muslim population. The Appeals Chamber found that although the Bosnian Muslims of Srebrenica as group targeted by the defendant “constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina (p. 289) at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size” as Srebrenica was not only “of immense strategic importance to the Bosnian Serb leadership” but also “the most visible of the ‘safe areas’ established by the UN Security Council in Bosnia.”210 Therefore, “the intent to kill the Srebrenica Bosnian Muslim men of military age” amounted to genocide despite the limited number of victims.211
(c) State obligations
Genocide is not only an individual crime under international criminal law, but also entails human rights obligations for states parties. On ratifying the Convention, contracting states are obliged:
(1) Not to commit genocide. Albeit not expressly stipulated by the wording of the Genocide Convention, not only individuals but states parties as well are obliged to abstain from genocide.212 According to the ICJ the obligation of a state party not to commit genocide flows from Article I of the Convention as “[i]t would be paradoxical if States were . . . under an obligation to prevent [the] commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law.”213
(2) To prevent genocide. The obligation to prevent, pursuant to Article I, must first be fulfilled within the state’s own territory. Additionally, the duty to prevent and the corresponding obligation to act, arises when state authorities “learn of, or should normally have learned of, the existence of a serious risk that genocide will be committed” by another state or non-state actors operating in a foreign country. “From that moment onwards,” states must use available means that are “likely to have a deterrent effect” on the country preparing genocide.214
(3) Not to aid and assist genocide. States must neither conspire to commit genocide (Article III(b)) nor must they directly and publicly incite the commission of genocide (Article III(c)). They are also obliged to abstain from acts which could be characterized as complicity in genocide (Article III(e)), that is, not to render aid or assistance to the perpetrator with a view of enabling or facilitating the commission of the crime. However, according to the ICJ‚ “there is no doubt that the conduct of an organ . . . furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of (p. 290) the specific intent (dolus specialis) of the principal perpetrator.”215
(4) To punish genocide. Article VI imposes the obligation to prosecute and punish perpetrators of genocide on the state in whose territory the act was committed. Alternatively, persons charged with genocide may be tried by an international penal tribunal whose jurisdiction has been recognized by the states parties involved. Today, such jurisdiction lies primarily with the ICTY, the ICTR, and the ICC.
(5) To extradite persons charged with genocide either to the state that has jurisdiction to prosecute or to an international tribunal and, in particular, not to classify genocide as non-extraditable political crime (Article VII).
(d) International enforcement
The Genocide Convention provides for three mechanisms to ensure enforcement of its obligations at the international level.
The primary means of enforcement is criminal prosecution by a national or international tribunal.216 All international criminal tribunals had or have jurisdiction to punish genocide as an international criminal offence.217 At the political level, any contracting party may, pursuant to Article VIII of the Genocide Convention, call upon the competent organs of the United Nations, in other words the Security Council, to take action for the prevention and punishment of genocide.218 Lastly, as a third mechanism the Convention authorizes states parties, under Article IX, to refer disputes relating to the interpretation, application, and fulfilment of the Convention to the ICJ.219
In 2004 the UN Secretary-General appointed an Advisor for the Prevention of Genocide whose mandate includes the development of an early warning mechanism to identify potentially genocidal situations.220
The scope of human-rights-based protection of life is not confined to minimizing the risk of being killed. Access to the basic necessities of life, such as food, shelter and, in the case of life-threatening health problems, minimum medical treatment is equally (p. 291) relevant if not even more important for survival in situations where such access is being blocked or where basic goods are simply not available. It follows that the right to life not only as a civil and political right but also as part of economic, social, and cultural rights plays a major role in safeguarding human existence. It does so through providing entitlements to an adequate standard of living and the right to health set forth in ICESCR, Articles 11 and 12. These guarantees, however, are not limited to ensuring mere survival. In addition, they guarantee the minimal conditions necessary for a life in dignity.
As already discussed,221 economic, social, and cultural rights contain the triple obligation to respect, protect, and fulfil. This is also true for the rights discussed here.
A peculiarity of subsistence rights is the fact that they guarantee “adequate” food and housing as well as (despite a lack of an explicit reference in the text of the Covenant) “adequate” health care. The CtteeESCR developed criteria for assessing what “adequate” means for each of these rights. Despite different formulations, the following are core elements222 that are in any case necessary to make relevant goods and services adequate:223
• Availability: Obviously, the rights to adequate food, housing, and health care cannot be enjoyed if food, shelter and accommodations, health services and medication are not available in sufficient quantity as well as quality.
• Accessibility: The fact that food, housing, and health care are available does not automatically mean that they are accessible to everyone. Accessibility has different dimensions including the fact that they are physically within reach (location) and that persons are not legally or de facto denied access. Furthermore, relevant goods and services must be economically affordable for the poor in order to be truly accessible.
• Acceptability: Relevant goods and services must be culturally acceptable, that is, respectful of the beliefs and traditions of people, communities, and minorities as well as gender-sensitive.
Relevant provisions: UDHR, Article 25; ICESCR, Article 11; CEDAW, Article 12(2); CRC, Articles 24(2) and 27; CRPD, Article 28; P1/ACHPR, Article 15; ArCHR, Article 38; P 1/IACHR, Articles 12 and 17(a); GC II, Article 26; GC III, Article 20; GC IV, (p. 292) Articles 23, 36, 49, 55, and 89; AP I, Article 54; AP II, Articles 5(1)(b) and 14; Rome Statute, Article 8(2)(b)(xxv).
(a) The content of the right to food
According to the wording of ICESCR, Article 11(1), states parties recognize the right of everyone to adequate food. Paragraph 2 further establishes the fundamental right to protection against hunger. The CtteeESCR and the former UN Commission on Human Rights have made it clear that this guarantee also embraces the right to an adequate supply of drinking water.224
The text of the provision remains vague and provides little guidance as to when the right to food has been fully realized. However, the CtteeESCR has identified two elements that make up the content of the right to food:225
(1) The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture;
(2) The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.
Where sufficient food is available and access to food has been made sustainable, the right to food has been fully realized. However, this does not imply that states parties are required to provide an unlimited supply of food or risk violating the right in question. Rather, the core content of the right to food flows from the interrelationship between the two elements set out above and the different layers of obligations corresponding to this right.
(b) Obligations to respect
The obligation to respect flowing from the right to food obliges states (1) to respect private access to available food, and prohibits (2) the destruction of accessible food and the food supply infrastructure. The first category prohibits denial of access for individuals or members of particular groups to food that is readily available; whether this occurs through legislation or proactive measures by the authorities is immaterial. The following are some examples of such proscribed conduct:
• Laying landmines in areas used for the production of necessary foodstuffs.
• Imposing a ban on the provision of food to persons who are without access to a food supply (e.g. by blocking humanitarian access to the hungry during an armed conflict or in the aftermath of a natural disaster).226
• Destroying food sources with a view to driving out the local population.227(p. 293)
• Requisitioning foodstuffs without compensation, confiscating farmland used for the production of necessary foodstuffs, or failing to respect the land rights of indigenous peoples resulting in non-access to traditional sources of food (e.g. hunting, fishing, gathering).
• Using hunger as a weapon, that is, intentionally starving the civilian population (an act which constitutes a war crime).228
The prohibition of the destruction of foodstuffs and its infrastructural facilities is of special relevance during armed conflicts and therefore occupies a prominent place in IHL.229 Moreover, such conduct violates ICESCR, Article 11.230
(c) Obligations to protect
Obligations to protect play an important role in the context of the right to food. The CtteeESCR thus emphasizes in its General Comment No 12 (1999) that this human right is violated where the state fails to protect people through legislation or proactive measures against attacks by third parties aimed at blocking access to food.231 It follows that states have a duty, for instance, to take action during food shortages to prevent the hoarding of foodstuffs for subsequent sale at significantly inflated prices with the result that poorer sectors of the population can no longer afford to feed themselves properly; to see to it that patients or children in private care, for instance in retirement homes, nursing homes, and private orphanages, are properly fed; to take action against disruption of the food chain by private parties; and to oppose social traditions which dictate that, during food shortages, women should receive less food than men.
(d) Obligations to fulfil
Obligations to fulfil the core content of the right to food are of immediate effect and include the right to freedom from hunger.232 States parties thus have an obligation during times of famine or humanitarian disaster either to supply the starving population with foodstuffs, or to seek support from the international community233 if they are unable to do so. It is furthermore clear from IHL, from case law pertaining to the right to life, from the prohibition of inhuman treatment and from the right to adequate conditions (p. 294) of detention that more far-reaching obligations to fulfil exist where persons are no longer in a position to satisfy their basic food needs themselves owing to state action. This is so, for example, in situations of state custody,234 during armed conflicts,235 with regard to asylum-seekers,236 or when states render it impossible for indigenous communities to live in accordance with their traditional lifestyles of gathering, hunting, or planting food for themselves.237
Lastly, the ICESCR imposes programmatic obligations to fulfil in respect of a number of measures aimed at enhancing food production enumerated in Article 11(2),238 which are to be realized progressively. These obligations are designed to guarantee the availability of adequate food for all persons within the jurisdiction of a state by regulating markets, supplementing private-sector initiatives, and laying the basis for long-term food security.
Relevant provisions: CEDAW, Article 14(2)(h); CRC, Article 28(2)(c): CRPD, Article 28(a); P 1/ACHPR, Article 15(a); African Charter on the Rights and Welfare of the Child, Article 14(2)(c); ArCHR, Article 39(2)(f); GC III, Articles 20, 26(3), 29(2), and 46(3); GC IV, Articles 85(3), 89(3), and 127(2); AP I, Article 54(2); AP II, Articles 5(1)(b) and 14.
According to the World Bank, more than 840 million people are unable to obtain clean drinking water and more than 2.3 billion people lack even access to rudimentary sanitation.240 Despite progress made in recent decades, almost a billion people are still forced to relieve themselves outdoors241 under unworthy conditions, which in turn pollutes drinking water resources for many people. Lack of access to clean water for food and hygiene purposes and to sufficient sanitary facilities still account, according to WHO, for more than 800,000 diarrhoeal deaths every year.242 If human rights, as here, are understood as a legal concept oriented towards addressing basic human needs, it is surprising that neither the UDHR and ICESCR nor regional conventions contain a human right to water and sanitation.
Recent developments, however, provide a more encouraging picture. CRC, Article 24(2)(c) requires states to take “appropriate measures” against disease and malnutrition by providing, inter alia, “clean drinking water.”243 According to CRPD, Article 28(2)(a), states have to “ensure equal access by persons with disabilities to clean water services.” An obligation to provide protected persons with the necessary water is firmly rooted in IHL, too.244 At the regional level, guarantees exist in Africa and the Americas.245
In contrast, neither the ICESCR nor the ESC contain an explicit guarantee. However, the CtteeESCR recognises that the ICESCR guarantees a right to drinking water and access to sanitation at least implicitly. As early as 1991, it stated that the right to adequate housing under Article 11 of the Covenant includes the right of sustainable access to drinking water, sanitation, and washing facilities.246 In its General Comments on the right to health it highlighted in 2000 that “the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health” including “potable water and adequate sanitation.”247 Against this background, it is not surprising that the Committee published a specific General Comment on the right to water in 2002 where it concluded that the right to an adequate standard of living was, as evidenced by the use of the term “including,” not limited to the rights to food, clothing, and shelter. Rather, “the right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival” and is intrinsically linked to the right to health and the right to food.248(p. 297)
This interpretation was supported by states: In 2001 the former Commission on Human Rights expanded the mandate of its special Rapporteur on the right to food to the right to drinking water.249 In March 2008, the Human Rights Council decided to create a separate mandate and appoint an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation.250 Two years later, the UN General Assembly recognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”251 In 2015, the UN General Assembly went one step further and recognized by consensus the right to water and the right to access to sanitation as independent human rights guarantees.252 Thus, the right to water and access to sanitation is now solidly recognized despite the absence of an explicit guarantee in the ICESCR.
(b) The content of the right to water and access to sanitary facilities
The right to water requires the following:253 First, water must be available for each person, that is, continuously and in sufficient quantity for personal and domestic uses. Second, it must be safe in terms of quality, in particular “free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health.” Finally, water must be accessible, not only in physical but also economical terms and thus be affordable for everyone. Availability, quality, and accessibility are also necessary preconditions for the full enjoyment of the right to access to sanitation.
The corresponding obligations of states include a duty of states to refrain from interfering with the individual’s use of water on its territory or that of neighbouring states254 by, for example, polluting water resources or the construction of infrastructure projects such as dams endangering the access to water of an acceptable quality. On the other hand a prohibition to privatize water infrastructure may not be deduced from human rights law. However, in situations where water services are controlled by private companies states “must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established.”255 Furthermore, the duty to protect requires states to prevent other individuals256 and other states, for example, a riparian state, (p. 298) to make access to water impossible by polluting or inequitably extracting water from water resources. Finally, the obligation to fulfil requires a state to take measures with a view to ensuring access of all individuals under its jurisdiction to water.
The right to water and access to sanitation, as illustrated by the history of this right, overlaps in many ways with numerous economic and social as well as civil and political human rights: Thus aspects of the right to access to drinking water are also protected by the rights to food, housing, health, and the right to life,257 while access to sanitation covers the material scope of the rights to an adequate standard of living, to health, to privacy and the prohibition of inhuman and degrading treatment.258
At the same time, the right to water has its own characteristics in terms of content: The full fulfilment of obligations arising from the right to access to clean water for drinking and hygiene purposes depends not only, as with many other ESC rights, on a country’s existing resources, but also on climatic and geographical factors and—in view of the fact that groundwater and surface water systems, as essential sources of drinking water, often have transboundary dimensions—on the behaviour of neighbouring or upper riparian states of rivers.259
The right of access to adequate sanitary facilities has no intrinsic connection with water: At the heart of this claim is the protection of human dignity and the right to privacy, which are at their core violated when people are forced to relieve themselves in open spaces. This guarantee therefore does not necessarily enshrine a right of access to a sewage infrastructure, but is also fulfilled by access to sanitary facilities based on other technical means as long as they guarantee the privacy of the users and a disposal and reprocessing of human excrement in ways that do not endanger health.260 Only if these requirements are not met, that is, if private individuals are forced to carry out their emergency duties in such a way that their excrement ends up untreated in the water cycle, or where no water is available for hygienic purposes, does the connection to the right to clean drinking water become obvious.
Obligations to respect are particularly important for fulfilling the right of access to water. Similar to the right to food,261 they require states on the one hand not to impede private access to water (e.g., by polluting or impairing drinking water resources262). On (p. 299) the other hand, states must refrain from destroying private water and sanitation infrastructure facilities. This prohibition is of eminent importance especially during armed conflicts, which explains why IHL explicitly prohibits attacks on or the destruction or rendering unusable of drinking water supply facilities and irrigation systems.263 It also prohibits the parties to the conflict from using “methods or means of warfare which are intended or may be expected to cause [long-term and severe] damage to the natural environment and thereby to prejudice the health or survival of the population.”264
Duties to protect are central to the effective implementation of the right to water. They require the state to ensure that (1) private actors do not pollute drinking water supplies or impede access to drinking water.265 States must therefore take measures to ensure that private enterprises do not tap into water reserves to an extent that makes access to water difficult or impossible for individuals, nor diminish the quality of private drinking water facilities through, for instance, untreated industrial wastewater. States must also take action against unintentional pollution of drinking water by private individuals due to a lack of sanitary facilities. If the drinking water supply in a state is privately owned, the state must (2) ensure by means of regulatory provisions that equal access to high-quality water for all at an affordable price remains possible.266
States are subject to justiciable obligations to fulfil in particular with regard to persons in their custody. As explicitly recognized by IHL,267 but also relevant in times of peace, all detained persons must be provided with sufficient drinking water and sanitary facilities must be made available to them that meet the human rights requirements described above.268 In addition, states have to fulfil the directly applicable minimum obligation towards all persons under their jurisdiction to provide non-discriminatory and safe access to a quantity of drinking and domestic water that is necessary to prevent disease.269 In addition, states are subject to a progressive obligation to strive for the full realization of the right to water and access to sanitation by means of active measures, with priority being given to the use of existing resources.
Relevant provisions: UDHR, Article 25; ICESCR, Article 11; ICCPR, Article 17; CRC, Article 27(3); CRPD, Article 28; CEDAW, Article 14(2)(h); CERD, Article 5(e)(iii); (p. 300) ICRMW, Article 43(1)(d); IACHR, Article 11; ArCHR, Article 38; ESCrev, Article 31; ECHR, Article 8; GC IV, Article 53; AP I, Article 69.
(a) The content of the right to adequate housing
The right to an adequate standard of living pursuant to ICESCR, Article 11(1) includes a right to adequate housing. The text of the Covenant, however, sheds no further light on the normative content of this right. According to the CtteeESCR, full realization of the right to housing demands that the following parameters be met:270
(1) The availability of habitable housing, that is, housing that provides the inhabitants with adequate space and protects them from cold, damp, and other health-threatening environmental hazards; guarantees their physical safety; gives them access to energy, drinking water, and sanitation facilities; affords a certain measure of security in terms of legal protection against eviction, harassment, or other threats; and is culturally acceptable.
(2) Accessibility of such housing for everyone, including disadvantaged groups, without discrimination, and in a manner that does not jeopardize other basic needs.
The specific meaning of these parameters and the concrete duties flowing from them depend on the category of state obligations within the right to adequate housing.
(b) Obligations to respect
The CtteeESCR attaches special importance to action against the widespread state practice of unlawful or forced evictions.271 “Forced eviction” means “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”272 As such evictions are diametrically opposed to the criterion of accessibility and also violate other human rights,273 the Committee considers them serious violations of the right to adequate housing. The same approach is taken by the ECtteeSR.274 However, “evictions carried out by force (p. 301) in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights” do not constitute violation of the right to housing.275 While forced evictions often target individuals or specific families, they may also occur “in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements”276 or in the context of development projects277 related to urban planning, infrastructure, or mining. The “Basic Principles and Guidelines on Development based Evictions and Displacement” prepared by the Special Rapporteur on adequate housing278 provide detailed guidance for cases where forced evictions are justified by the necessity of realizing development projects.
Housing is also protected by civil and political rights. The right to privacy recognized in ICCPR, Article 17, IACHR, Article 11, ArCHR, Article 21, and ECHR, Article 8, though not providing a right to housing as such, includes the right to respect for a person’s home as one of its components.279 It thus affords protection, albeit not absolute, not only against state interference in a person’s home, for instance through unlawful house searches or electronic surveillance measures,280 but also against forced eviction. The ECtHR made this determination in several cases against Turkey, which was censured for the displacement of Kurds from their villages through the deliberate destruction of their homes,281 or the eviction from Roma settlements without providing alternative housing.282 The HRCttee reached the same conclusion in the case of irregular Roma settlements that were tolerated for decades and whose inhabitants were evicted by force,283 or the arbitrary termination of right to use an apartment.284 The ECtHR also held that prohibiting so-called “travellers” from living in a caravan on their own land was interference with the right to privacy.285 The right to privacy and respect of one’s home also affords protection against, for instance, hazardous or annoying intrusions such as odours or noise pollution.286
IHL also contains provisions aimed at protecting private homes by categorically prohibiting the destruction and plundering of private property and attacks on private (p. 302) houses.287 It equally prohibits evictions carried out in the form of forced evacuations and deportations that are not necessary for the safety of the civilian population or justified by considerations of military necessity.288
(c) Obligations to protect
Obligations to protect rest primarily with the legislature, which is required to adopt laws ensuring that occupants of private homes are protected against arbitrary eviction by private parties, that dwellings meet certain quality standards, and that occupants are protected against intrusions by third parties. These aims calls for the development of appropriate legal protection and provision of legal remedies that can serve as the basis for action against arbitrary eviction by private actors, disturbances by third parties, discriminatory evictions, and health endangering housing conditions attributable to third parties.289 To the extent that authorities know of imminent or on-going violations and have the possibility to intervene, the right to privacy also creates obligations to protect against housing infringements by private actors.290
(d) Obligations to fulfil
The right to adequate housing obliges states to undertake a large number of measures, both legislative and other. The measures include the regulation and promotion of private housing, making subsidized housing available for disadvantaged groups, and the provision of sites for nomadic “travellers,”291 all of which must be designed incrementally to ensure the full realization of the right. Special efforts are needed to address the fate of street children who often are victims of human rights violations.292
In addition, this right entails minimum obligations which must, in principle, be realized immediately. They include making available emergency housing shelters for victims of natural disasters or armed conflict, for the homeless and for other persons in distress.293 Such housing must afford protection against environmental factors and other hazards, thereby securing survival. Further immediate obligations to fulfil arise in circumstances in which state action renders the unassisted fulfilment of this right impossible. Thus, in the event of, for instance, state expropriation of private property or forced relocations of people to make way for development projects, either replacement of lost housing or full compensation is required.
Relevant provisions: UDHR, Article 25; ICESCR, Article 12 and Article 7(b); CERD, Article 5(e)(iv); CEDAW, Article 12; CRC, Article 24; CRPD, Article 25; ICRMW, Articles 43(1)(e) and 45(1)(c); Preamble to the Constitution of the World Health Organization (WHO); P 1/ IACHR, Article 10; IACDAPD; ACHPR, Article 16; ArCHR, Article 39; GC I–IV, Article 3(2); GC III, Articles 13, 15, 29–32; GC IV, Articles 16–23, 38, 55–57; AP I, Articles 10–15; AP II, Articles 7–11; ESCrev, Articles 11 and 13; ECHRB and its Additional Protocols on the Prohibition of Cloning Human Beings and on Transplantation of Organs and Tissues of Human Origin.
The right to health under ICESCR, Article 12 contains a variety of exceptional features. Rather than a right to be healthy, which no state can guarantee to every individual, the provision enshrines a right to conditions that allow the leading of a healthy life and a right to adequate health care in case of illness. States parties are thus required to supplement individual health care by endeavouring to create conditions and services conducive to the highest possible standard of health for all persons under their jurisdiction. The fact that health does not depend solely on an individual’s constitutional predisposition but that state action or inaction can have a major impact on people’s state of health is demonstrated, for example, by the vastly different life expectancies in countries of the global North and South.294
The links between the right to health and other human rights are particularly complex, a fact that provides strong evidence of the indivisibility and interdependence of human rights. This is so in three respects. First, violations of other rights—such as the rights to food and housing, the prohibition of torture, and the right to adequate conditions of detention—have an impact on the right to health.295 Not surprisingly, the substantive scope of the right to health therefore overlaps that of many other rights.296 On the other hand, medical treatment or examinations conducted without consent or denial of access to treatment may adversely affect other rights including the right to privacy297 and the prohibition of subjecting someone without his free consent to medical experimentation as prohibited by ICCPR, Article 7. Lastly, poor health, physical or mental disability, or contraction of an infectious disease298 often provide a pretext for violations of the right to non-discrimination.
In view of the complexity of the factors that exert an influence on health, it is not surprising that the precise normative content of this right remains unclear in several respects. The wording of the various relevant provisions is in most cases of little assistance. Nevertheless, Articles 7 and 12 of the ICESCR, by referring to the measures required to ensure environmental and industrial hygiene and healthy working conditions,299 make it clear that this right not only covers health care as such but also entails obligations in respect of the necessary conditions for the protection of health. The CtteeESCR has shed additional light on the normative content of the right to health.300 According to the Committee, this right is satisfied where the following is ensured:
(1) The availability of qualitatively and quantitatively adequate public health facilities, that is, of general and psychiatric hospitals, health centres and care facilities for persons with disabilities, that are adequately staffed and equipped and guarantee acceptable preventive, therapeutic, and palliative treatment and services in the area of sexual and reproductive health, as well as the availability of drugs and other necessary items; and
(2) Non-discriminatory accessibility for all, with consideration for disadvantaged groups, to health services and health-related information throughout the territory of a state party.301
States’ concrete obligations with a view to the attainment of the highest possible standard of health vary in terms of the different categories of obligation.
Obligations to respect play an important role in the context of the right to health. In systematic terms they may be categorized as follows:
(1) States parties to the ICESCR (but also to the ICCPR and the regional conventions302) are prohibited from ordering coercive diagnostic or therapeutic measures. However, this prohibition is not absolute. Mandatory medical treatment may be conducted without the consent of the person concerned under the ICESCR, Article 4 limitations clause, that is, in cases determined by law and insofar as such treatment is necessary to achieve a legitimate aim. Such general welfare goals may include, for instance, protection of the health of third parties in the event of a highly infectious disease, clarification of the circumstances of a crime, or protection of the life and person of nursing staff or of individuals without capacity to consent. Article 7 of the ICCPR absolutely prohibits subjecting a person without his or her free consent to medical or scientific experimentation.303
(2) The obstruction or denial of access to existing health facilities by agents of the state also constitutes a violation of the obligation to respect. According to the CtteeESCR, examples of such unlawful conduct include the denial of access to contraceptives directly or indirectly through censorship of information regarding contraception, the prohibition of traditional healing methods and practices, or the limiting of access to health facilities for certain groups such as women or foreign nationals without legal status.304 The HRCttee found that the denial of permission to travel abroad to receive medical attention, resulting in the death of a person, constituted a violation of the right to life under ICCPR, Article 6.305
(3) Article 12 of the ICESCR further prohibits states from polluting the environment in a manner that is harmful to human health, for instance through state-owned industrial facilities or the testing of weapons that release harmful substances.306
(4) The prohibition of the destruction of health care facilities and of attacks on medical personnel is of major practical importance during armed conflicts and occupies a prominent place in IHL.307 The same is true of the absolute prohibition of the requisitioning of medical equipment or civilian hospitals308 and of obstruction (p. 306) of the passage of relief consignments309 and medical transports.310 Lastly, the numerous Hague Law rules prohibiting the use of weapons that disproportionately endanger the life and health of civilians may be understood as specific concretizations of the right to health.311
To meet these obligations, states are required primarily to take legal action against infringements of the right to health by private actors. Authorities are further required to take appropriate protective measures against private conduct such as hazardous emissions from a private business that seriously endangers people’s health.
Human-rights-motivated health legislation must include, for instance, the following provisions:316
(3) prevention of traditional practices and customs that impede access to pre- or post-natal care or violating women’s right to health or are otherwise harmful to health. The Committee, when examining state reports, deems, inter alia, the following practices as incompatible with the right to health: food taboos, forced marriages for young girls, force-feeding of women prior to marriage, private discrimination against children and adults with disabilities and, in particular, female genital mutilation;317
(4) healthy working conditions in private-sector workplaces through the establishment of minimum regulations governing, for example, exposure to hazardous emissions or necessary protective measures;318 and
(5) elimination as far as possible of environmental impacts generated by private households and businesses that are harmful to health.319
This social right entails an obligation for states to incorporate at least its core content in their domestic law.324 In other words, a minimum standard of health care must be ensured. Where this minimum content is not realized, the CtteeESCR considers there to be a violation of ICESCR, Article 12, unless a state can show that the required minimum standard has proved unattainable despite heavy investment of its resources and recourse to available international assistance. The core content of the right to health includes, for example, ensuring that basic health facilities exist and that essential medicines are both available and accessible to disadvantaged groups as well as ensuring that adequate food, water, and housing necessary to prevent detriment to health are available. The Committee equally assigns high priority to the availability of pre- and post-natal care and other relevant services for all women, comprehensive vaccination programmes against the most dangerous infectious diseases, measures to prevent and contain epidemic and endemic diseases, health education measures and qualitatively adequate public training for members of the medical profession. The IACtHR deduced from the right to life and the right to humane treatment a duty of states to take measures to ensure the monitoring of their health infrastructure in order for said rights to be safeguarded in these institutions.325 Measures above and beyond (p. 309) this minimum core are to be introduced progressively, that is, depending on the availability of resources.326
States are subject to particularly clear and direct obligations to address the health needs of persons deprived of their liberty or otherwise in their custody.327 The prohibition of inhuman treatment has led to a now rich jurisprudence by the ECtHR328 and IACtHR329 on the state’s obligation to ensure adequate health care during detention, that is, health care of a quality fundamentally equivalent to that outside prisons.330 In addition, states are under an immediate obligation to provide free health services or to pay for such services to the extent necessary to address health damages caused by state organs.331 In addition, regional courts derive from the right to life and the right to humane treatment an obligation on states parties “to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable”332 as well as to provide “access to proceedings for ‘civil’ liability medical negligence” in less serious cases,333 and, more generally, to introduce “regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives”334 and monitor and ensure their implementation.335
1 See, e.g., HRCttee, Baboeram et al v Suriname, Communications Nos 146/1983 and 148−154/1983 (1985), para 13.2; ECtHR (Grand Chamber), McCann and Others v The United Kingdom, Series A, No 324 (1995), para 147; and ACmHPR, Forum of Conscience v Sierra Leone, Communication No 223/1998 (2000), para 19.
3 California Health and Safety Code, Section 7180, <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=7180> (accessed 8 November 2018).
5 ECtHR (Grand Chamber), Evans v The United Kingdom, Reports 2007-I, paras 53 ff. The ECtHR had to decide whether the destruction of embryos, i.e. fecundated egg cells, which had been raised outside of the mother’s womb and had not yet been implanted in the womb, violated ECHR, Art 2. See also ECtHR, RR v Poland, Reports 2011-III, para 186, and Şentürk v Turkey, Application No 13423/09 (2013), paras 107 ff.
6 See the cases mentioned at section II.3.d. For the same approach see HRCttee, General Comment No 36 (2018), para 8.
8 See section II.3.d.
9 See ECtHR (Grand Chamber), Makaratzis v Greece, Reports 2004-XI, paras 49 ff. According to this judgment ECHR, Art 2 may be invoked in the event of potentially lethal use of force such as shooting at a fleeing car with uncontrolled volleys of gunfire where the resort to force was not intended to inflict humiliation, pain, or debasement on the victim, and hence did not fall within the substantive scope of ECHR, Art 3 concerning the prohibition of torture and cruel, inhuman, or degrading treatment. For similar conclusions see ECtHR, Sašo Gorgiev v The Former Yugoslav Republic of Macedonia, Reports 2012-III, paras 36 ff, and, in the context of an armed conflict, ECtHR, Makhauri v Russia, Application No 58701/00 (2007), para 117. On the other hand, the ECtHR considers the direct shelling of demonstrators with tear gas grenades (Yaşa and Others v Turkey, Application No 44827/08 , paras 37 ff) or the disproportionate use of so-called “tasers” (Georgiev and Others v Bulgaria, Application No 51284/09 , paras 65) as a violation of ECHR, Art 3. See also IACtHR, Case of the Rochela Massacre v Colombia, Series C, No 163 (2007), para 127, and ACmHPR, General Comment No 3 (2015), para 8.
15 ECtHR (Grand Chamber), McCann and Others v The United Kingdom, Series A, No 324 (1995), para 148: “[T]he text of Article 2 . . . demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life.” See also ECtHR (Grand Chamber), Ramsahai and Others v The Netherlands, Reports 2007-II, para 286.
16 See, e.g., ECtHR (Grand Chamber), Ramsahai and Others v The Netherlands, Reports 2007-II, para 287: “[T]he term ‘absolutely necessary’ in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‘necessary in a democratic society’ under the second paragraph of Articles 8 to 11 of the Convention.” The potentially lethal use of force to arrest someone or prevent his or her flight is always a disproportionate response, provided that the person poses no threat to the life of others and is not suspected of having committed a violent offence: ECtHR (Grand Chamber), Nachova and Others v Bulgaria, Reports 2005-VII, para 95. See also HRCttee, General Comment No 36 (2018), para 12, and ACmHPR, Kazingachire and Others v Zimbabwe, Communication No 295/04 (2013), paras 118 ff. The use of violence, which would not normally cause death but exceptionally does so in a specific case because of the health predisposition of the victim, is not in itself disproportional; ECtHR, Scavuzzo-Hager v Switzerland, Application No 41773/98 (2006).
18 IACtHR, Landaeta Mejías Brothers et al v Venezuela, Series C, No 281 (2014), para 134. HRCttee, Suárez de Guerrero v Colombia, Communication No 45/1979 (1982), para 13.2, mentions self-defence and the defence of others as well as arresting a person or preventing the escape of detainees as legitimate grounds.
19 Ibid, paras 13.2 and 13.3. See also the similar case law of the IACtHR, e.g., Barrios Family v Venezuela, Series C, No 237 (2011), para 49, and the IACmHR, Corumbiara Massacre v Brazil, Report No 32/04, Case No 11.556 (2004), paras 164 ff.
21 Ibid, para 13. See also ECtHR (Grand Chamber), Makaratzis v Greece, Reports 2004-XI, paras 57 ff; ECtHR, Finogenov and Others v Russia, Reports 2011-VI, para 207; IACtHR, Landaeta Mejías Brothers et al v Venezuela, Series C, No 281 (2014), paras 124 ff; and ACmHPR, General Comment No 3 (2015), para 27.
24 In ECtHR, Finogenov and Others v Russia, Reports 2011-VI, paras 208 ff, the Court mentioned that it “may occasionally depart from that rigorous standard of ‹absolute necessity›” as applying it “may be simply impossible where certain aspects of the situation lie far beyond the Court’s expertise and where the authorities had to act under tremendous time pressure and where their control of the situation was minimal.” In the specific case, the ECtHR had to assess whether the use of gas to end a terrorist hostage-taking of several hundred persons in a theatre in Moscow leading to more than one hundred deaths was compatible with Article 2 ECHR. In ECtHR, Tagayeva and Others v Russia, Application No 26562/07 et al (2017) (key case), para 481, the Court concluded: “The absolute necessity test formulated in Article 2 is bound to be applied with different degrees of scrutiny, depending on whether and to what extent the authorities were in control of the situation.”
25 ECtHR (Grand Chamber), McCann and Others v The United Kingdom, Series A, No 324 (1995), paras 149 ff. See also ECtHR (Grand Chamber), Makaratzis v Greece, Reports 2004-XI, paras 56 ff, and Giuliani and Gaggio v Italy, Reports 2011-II, paras 197 ff.
26 This has to include preparatory measures for the rescue and medical care of potential victims. See ECtHR, Finogenov and Others v Russia, Reports 2011-VI, paras 237 ff, and IACtHR, Landaeta Mejías Brothers et al v Venezuela, Series C, No 281 (2014), para 143.
27 See, e.g., ECtHR (Grand Chamber), Giuliani and Gaggio v Italy, Reports 2011-II, para 178: “The use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.” For a detailed discussion and application of this principle see ECtHR (Grand Chamber), Armani da Silva v The United Kingdom, Application No 5878/08 (2016) (key case), paras 240 ff.
34 See, e.g., CHR Resolution 2003/67, para 4(a) and (g). The United States of America has entered the following reservation to Art 6 (5) ICCPR: “[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” Germany and Sweden have objected to the admissibility of this reservation. See also, in support of the prohibition of such a reservation, IACmHR, Patterson v The United States of America, Report No 25/05, Case No 12.439 (2005). On 1 March 2005 in the Roper v Simmons case (03-633), the United States Supreme Court, referring to international standards and practice, held that the death penalty for offenders who were minors at the time of the commission of the crime is unconstitutional. Nineteen US states were affected by this decision.
37 ACHPR, Art 4 does not mention any preconditions and limits on the use of the death penalty but ACmHPR, General Comment No 3 (2015), paras 24 ff mentions some of the same requirements. On the prohibition of the death penalty in Europe see below, sub-section ii.3.
45 Ibid. See, e.g., HRCttee, Weerawansa v Sri Lanka, Communication No 1406/2005 (2009), para 7.2, Rolando v The Philippines, Communication No 1110/2002 (2004), para 5.2, Carpo et al v The Philippines, Communication No 1077/2002 (2003), para 8.3, Hussain and Singh v Guyana, Communication No 862/1999 (2005), para 6.2. See also IACtHR, Hilaire et al v Trinidad and Tobago, Series C, No 94 (2002), paras 103 ff, Boyce et al v Barbados, Series C, No 169 (2007), paras 47 ff, and the settled jurisprudence of the IACmHR, see e.g. Lallion v Grenada, Report No 55/02, Case No 11.765 (2002), para 63.
48 See, however, below (sub-section ii) regarding the ECtHR’s assessment.
51 On this prohibition, see Chapter 16, section V.6.
54 This is the settled jurisprudence of the HRCttee: See e.g., Chikunova v Uzbekistan, Communication No 1043/2002 (2007), para 7.5, and Selyun v Belarus, Communication 2289/2013 (2015), para 7.7. See also ECtHR (Grand Chamber), Öcalan v Turkey, Reports 2005-IV, para 166. In its Views on Smartt v Guyana, Communication No 867/1999 (2004), para 6.3, the HRCttee found that the right to life had been violated because defence counsel for the person sentenced to death was absent throughout the criminal proceedings. This jurisprudence is shared by the ACmHPR (see e.g. Forum of Conscience v Sierra Leone, Communication No 223/1998 (2000), para 19, and International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights v Nigeria, Communications Nos 137/1994, 139/1994, 154/1996, and 161/1997 (1998), para 103) and the IACmHR (Moreno Ramos v The United States of America, Report No 1/05, Case No 12.430 (2005), para 71).
56 See ECtHR (Grand Chamber), Öcalan v Turkey, Reports 2005-IV, paras 112 ff. See also ACmHPR, Civil Liberties Organisation and Others v Nigeria, Communication No 218/1998 (2001), paras 24 ff. HRCttee, General Comment No 36 (2018), para 45, maintains that “[a]s a rule, civilians must not be tried for capital crimes before military tribunals” and highlights that “military personnel can only be tried for offences carrying the death penalty before a tribunal affording all fair trial guarantees.”
58 HRCttee, General Comment No 36 (2018), para 49, and CO Japan (2014), para 13; ACmHPR, General Comment No 3 (2015), para 25; and IACmHR, Lackey et al v United States of America, Report No 52/13, Cases Nos 11.575 et al (2013), paras 206 ff.
66 According to ICCPR, Art 6(6), “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” See also IACHR, Art 4(2) prohibiting the extension of such punishment to crimes to which it did not apply at the time of ratification.
68 HRCttee, General Comment No 36 (2018), para 50. See also IACtHR, Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion), Series A, No 16 (1999), paras 134 ff.
76 Similar questions arise in the case of deportation to a state where the person concerned risks being killed by non-state actors. See HRCttee, Warsame v Canada, Communication No 1959/2010 (2011), paras 8.2 f (deportation to Somalia), as well as HRCttee, General Comment No 36 (2018), para 30.
79 On the prohibition of inhuman treatment as a barrier to removal to another country see Chapter 18, section III.4.
80 Preceding sub-section (i). HRCttee, General Comment No 36 (2018), para 30, addresses this issue but is not entirely clear as to whether any violation of these requirements in the state of destination would make an extradition or deportation impermissible.
87 No derogation may be possible and required if a state party to the ECHR engages in an international armed conflict outside its territory. No state party to the ECHR declared a state of emergency in the context of military activities on the territory of former Yugoslavia including Kosovo, Afghanistan, or Iraq. See Chapter 4, section III.4 on the extraterritorial application of human rights and section IV.2 on derogation.
88 In this Chapter, section II.2.b.
91 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996, para 25. In the same paragraph the Court also observed “that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision.” See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Reports 2004, para 106.
93 This is the wording of common Art 3 GC pertaining to non-international armed conflicts; pursuant to customary law, it is also applicable to international armed conflicts; see the ICJ in Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ Reports 1986, 114, paras 218 ff.
94 ECtHR (Grand Chamber), Varnava and Others v Turkey, Reports 2009-V), para 130: “International treaties, which have attained the status of customary law, impose obligations on combatant States as regards care of wounded, prisoners of war and civilians; Article 2 of the Convention certainly extends so far as to require Contracting States to take such steps as may be reasonably available to them to protect the lives of those not, or no longer, engaged in hostilities.”
95 AP I, Art 50. See also Chapter 5, section III.1.a.ii.
96 See, e.g., the detailed consideration in ICTY, The Prosecutor v Galić, Trial Chamber, IT-98-29 (2003), paras 41 ff. Such attacks can never be justified with reference to the list of cases of permissible use of lethal force in ECHR, Art 2(2): ECtHR, Benzer and Others v Turkey, Application No 23502/06 (2013), para 184.
97 Customary International Humanitarian Law (n 92), Rules 1 and 7–10.
99 AP I, Art 52(2); Customary International Humanitarian Law (n 92), Rule 8.
102 Customary International Humanitarian Law (n 92), Rule 14, and AP I, Art 51(5)(b) which requires to cancel or suspend an attack on a military objective “if it becomes apparent . . . that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
104 AP I, Art 51(4); Customary International Humanitarian Law (n 92), Rules 11 and 12.
107 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996. The Treaty on the Prohibition of Nuclear Weapons was adopted on 7 July 2017 but is not yet in force and unlikely to be ratified by the nuclear powers. The possession and use of other weapons of mass destruction is completely prohibited by the almost universally ratified Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (adopted 10 April 1972; entered into force 26 March 1975) and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 13 January 1993; entered into force 29 April 1997).
108 See AP I, Art 57(3) and (4); Customary International Humanitarian Law (n 92), Rules 15−25.
110 AP I, Art 58; Customary International Humanitarian Law (n 92), Rules 23 and 24.
114 ECtHR, Kashiyev and Akayeva v Russia, Applications Nos 57942 and 57945/00 (2005). The ECtHR dealt with similar cases, amongst others, Tangieva v Russia, Application No 57935/00 (2007), and Musayev and Others v Russia, Application No 57941/00 (2007), in which it considered the right to life to have been violated.
116 See, e.g., AP I, Art 35(2) and (3), prohibiting the use of “weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,” as well as “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” AP I, Art 37 prohibits perfidy including, inter alia, “b) the feigning of an incapacitation by wounds or sickness; c) the feigning of civilian, non-combatant status.”
117 This prohibition is contained, e.g., in the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (adopted 10 April 1980; entered into force 2 December 1983) and in its protocols.
118 E.g., AP I, Art 40 and, Customary International Humanitarian Law (n 92), Rule 46, outlaw orders that no quarter be given, AP I. Art 42 and Customary International Humanitarian Law (n 92), Rule 48 prohibit the attack on persons parachuting from an aircraft in distress.
128 On the duty to protect in general see Chapter 3, section III.3.
132 ECtHR (Grand Chamber), Lopes de Sousa Fernandes v Portugal, Application No 56080/13 (2016) (key case), paras 166 and 186 f; ECtHR, Trocellier v France (dec), Reports 2006-XIV, para 4; and Sentürk v Turkey, Application No 13423/09 (2013), paras 79 ff; as well IACtHR, Gonzales Lluy et al v Ecuador, Series C, No 298 (2015), paras 169 ff.
135 ECtHR (Grand Chamber), Osman v The United Kingdom, Reports 1998-VIII, and Opuz v Turkey, Reports 2009-III; HRCttee, Peiris v Sri Lanka, Communication No 1862/2009 (2011); ACmHPR, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, Communications Nos 279/03–296/05 (2009), para 147; and IACtHR, Kichwa Indigenous Community v Ecuador, Series C, No 245 (2012), paras 245 ff.
137 ECtHR, Budayeva and Others v Russia, Reports 2008-II (mudslide), Kemaloğlu v Turkey, Application No 19986/06 (2012) (snowstorm), and Özel and Others v Turkey, Application No 14350/05 (2015) (earthquake).
140 HRCttee, General Comment No 36 (2018), para 21. These obligations to protect have been interpreted at particularly great length by the ACmHPR. Thus, according to the Commission, states also have a responsibility in the context of a civil war to protect civilians within their jurisdiction from killings, irrespective of the perpetrators, and to ensure that civilians are treated in accordance with the rules of IHL; ACmHPR, Amnesty International and Others v Sudan, Communications Nos 48/1990, 50/1991, 52/1991, 89/1993 (1999), para 50. On the scale and particulars of required measures see also Chapter 3, section III.3.
143 This Chapter, section II.2.a.
152 ECtHR, Anguelova v Bulgaria, Reports 2002-IV, para 110. Similarly, HRCttee, Telitsina v Russia, Communication No 888/1999 (2004), para 7.3, and, in particular, Guneththige et al v Sri Lanka, Communication No 2087/2011 (2015), para 6.2. See also IACtHR, Durand and Ugarte v Peru, Series C, No 68 (2000), para 65, and ACmHPR, Shumba v Zimbabwe, Communication No 288/04 (2012), para 132, as well as ACmHPR, General Comment No 3 (2015), para 37. The ECtHR also applies this reversal of the burden of proof if a person is killed or injured in an area that is under complete control of state agents during an armed conflict. See, e.g., ECtHR Akkum and Others v Turkey, Reports 2005-II, para 211, and Goygova v Russia, Application No 74240/01 (2007), para 94.
154 HRCttee, General Comment No 36 (2018), para 25, and ECtHR, Keenan v The United Kingdom, Reports 2001-III, para 89. In ECtHR, Renolde v France, Reports 2008-V, the Court concluded that France had violated the right to life because the authorities had not considered admission to a psychiatric institution or at least appropriate medical treatment although it was evident that the victim was “very disturbed” and suffered from obvious mental health problems (paras 80 ff). See also ECtHR, Kilavuz v Turkey, Application No 8327/03 (2008), para 87, Ketreb v France, Application No 38447/09 (2012), and De Donder and De Clippel v Belgium, Application No 8595/06 (2011).
159 Chapter 12, section II.1.h.
163 See, e.g., ECtHR, Mastromatteo v Italy, Reports 2002-VIII, paras 69 ff, Tomašic and Others v Croatia, Application No 46598/06 (2009), paras 52 ff, and Choreftakis and Choreftaki v Greece, Application No 46846/08 (2012), paras 50 ff.
168 See also Chapter 12, section II.1.h on the right to private life.
169 In this chapter, section II.1.
172 In the case of a minor forced to give birth to an anencephalic baby with absolutely no chances of survival, the HRCttee concluded that the refusal to allow a therapeutic abortion and the resulting physical and mental health risks suffered by the minor amounted to inhuman treatment as well as a violation of the right to private life: HRCttee, Huamán v Peru, Communication No 1153/2003 (2005), paras 6.3 f. The same conclusion was reached by the Committee in the case of a young woman with a mental disability who became pregnant after being raped and was not allowed to terminate her pregnancy legally; HRCttee, VDA v Argentina, Communication No 1608/2007 (2011), paras 9.2 ff. In more recent cases, the HRCttee seems to recognize that prohibitions on abortion of foetuses without any chance of survival amount to inhuman treatment and violations of the right to protection of privacy since the women concerned would be faced with the choice of either accepting a stillbirth or (if at all possible) having an abortion carried out abroad at their own expense: HRCttee, Mellet v Ireland, Communication No 2324/2013 (2016), paras 7.4 ff, and Whelan v Ireland, Communication No 2425/2014 (2017), paras 7.5 ff.
174 In ECtHR, Open Door and Dublin Well Women v Ireland, Series A, No 246-A (1992), para 66, the Court avoided to provide an answer to this question. The former ECmHR, in X v The United Kingdom Application No 8416/79, DR 19 (1980), para 23, affirmed the permissibility of abortion in the early stages of pregnancy, observing that any right to life of the foetus was in any case limited by the mother’s claim to protection of her life and health. In RH v Norway (dec), Application No 17004/90 (1992), the Commission accepted that the foetus could be protected by the right to life but emphasized at the same time that states were allowed a considerable margin of discretion when it came to regulating the question of abortion.
175 See Chapter 12, section II.1.j.iv on the right to privacy.
177 HRCttee, General Comment No 36 (2018), para 9. See also HRCttee, CO Netherlands (2001), para 5, in which the Committee expressed concern about euthanasia and assisted suicide legislation in the Netherlands but, apart from questioning the permissibility of such acts in the case of children between the ages of twelve and sixteen, refrained from finding that the Netherlands had violated ICCPR, Art 6.
179 See HRCttee, Baboeram et al v Suriname, Communications Nos 146/1983 and 148−154/1983 (1985), para 16 (killing of an arrested person by the military police); Rubio and Parents v Colombia, Communication No 161/1983 (1987), para 10.3 (enforced disappearances); ECtHR (Grand Chamber), Ramsahai and Others v The Netherlands, Reports 2007-II, paras 321 ff; ECtHR, Finucane v The United Kingdom, Reports 2003-VIII, paras 67 ff; and ACmHPR, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, Communications Nos 279/03–296/05 (2009), paras 150 ff.
180 HRCttee, Novaković v Serbia, Communication No 1556/2007 (2010) para 7.3; ECtHR, Şentürk v Turkey, Application No 13423/09 (2013), paras 98 ff; and ECtHR (Grand Chamber), Lopes de Sousa Fernandes v Portugal, Application No 56080/13 (2017) (key case), paras 214 ff.
181 See, e.g., IACtHR, Velázquez-Rodríguez v Honduras, Series C, No 4 (1988), para 166; ECtHR, Yasa v Turkey, Reports 1998-VI, para 100; and HRCttee, Chaparro et al v Colombia, Communication No 612/1995 (1997), para 8.8; as well as Eshonov v Uzbekistan, Communication No 1225/2003 (2010), paras 9.2 ff.
184 HRCttee, Rodríguez v Uruguay, Communication No 322/1988 (1994), para 12.4. The IACtHR held that, at the very least, amnesty provisions that preclude the possibility of punishing persons responsible for violations of non-derogable rights are incompatible with the human rights obligation to punish: IACtHR, Chumbipuma Aguirre et al v Peru (Barrios Altos case), Series C, No 75 (2001), paras 41 ff, and Gelman v Uruguay, Series C, No 221 (2011), paras 195 ff.
188 HRCttee, Lantsova v Russia, Communication No 763/1997 (2002), para 9.2; ECtHR, Taïs v France, Application No 39922/03 (2006), paras 93 ff, and ACmHPR, International Pen, Constitutional Rights Project, Civil Liberties Organisation and Interights v Nigeria, Communications Nos 137/1994, 139/1994, 154/1996, and 161/1997 (1998), para 104.
190 ECtHR, Anguelova v Bulgaria, Reports 2002-IV, paras 123 ff. See also the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions of 22 December 2003, UN Doc E/CN.4/2004/7, paras 35 f.
193 Honduras violated the right to life when over a hundred detainees died in a fire because they were unable to leave their overcrowded cells in time due to a lack of adequate escape routes and fire-fighting facilities; IACtHR, Pacheco Teruel v Honduras, Series C, No 241 (2012).
194 IACtHR, Yakye Axa Indigenous Community v Paraguay, Series C, No 125 (2005), paras 162 ff, and Sawhoyamaxa Indigenous Community v Paraguay, Series C, No 146 (2006), paras 159 ff. See also ACtHPR, African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No 006/2012 (2017), paras 151 ff.
200 The notion of genocide was coined by Polish lawyer Raphael Lemkin. He defined genocide as “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.” Raphael Lemkin, Axis rule in occupied Europe laws of occupation, analysis of government, proposals for redress (Carnegie Endowment for International Peace: Washington, 1944), 79.
201 Gregory H Stanton, “The Eight Stages of Genocide,” paper presented at the Yale University Center for International and Area Studies, 1998, <http://genocidewatch.org/aboutgenocide/8stagesofgenocide.html> (accessed 7 November 2018).
212 See also Art 25 (4) of the Rome Statute according to which “[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”
217 See Chapter 6, section IV.
220 See Office of the Special Advisor on the Prevention of Genocide, <http://www.un.org/en/genocideprevention/> (accessed 8 November 2018).
221 Chapter 3, section III.6.
223 In its General Comment No 4 (1991), the Committee identified the following factors as elements of adequacy in the context of the right to adequate housing: “availability”,” “affordability,” “accessibility” and “cultural adequacy.” In General Comment No 12 (1999), the Committee identified relevant elements of the right to adequate food as “availability,” “acceptability,” and “accessibility.” General Comment No 15 (2002), para 12, on the right to water mentions “availability,” “quality” and “accessibility.”
227 ACmHPR, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96 (2001), paras 64 ff, and Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, Communications Nos 279/03–296/05 (2009), paras 206 ff (destruction of agricultural assets and infrastructure and poisoning of water sources in Darfur). The Commission assesses such action in light of the right to health (ACHPR, Art 16) as the ACHPR does not guarantee the right to food.
230 See, e.g., the report of the Special Rapporteur of the United Nations Commission on Human Rights on human rights violations in Iraqi-occupied Kuwait of 16 January 1992, UN Doc E/CN.4/1992/26, paras 224 ff.
233 Pursuant to the general obligation clause of Art 2(1) ICESCR, states bear responsibility for the realization of ICESCR rights not just through their own action but also, where necessary, “through international assistance and co-operation.”
234 See for an example from the viewpoint of civil and political rights: HRCttee, Hill and Hill v Spain, Communication No 526/1993 (1997), para 13 (Lack of food during the first five days of police detention violates ICCPR, Art 10). GC III Art 26 recognizes an immediate right to food for prisoners of war, specifying that “it shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies.”
238 ICESCR, Art 11(2) mentions measures to “improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.”
239 On “smart” sanctions see Chapter 8, section III.3.
240 See <http://worldbank.org/en/topic/water/overview> (accessed 1 August 2018).
245 African Charter on the Rights and Welfare of the Child, Art 14(2)(c); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art 15(a); and Inter-American Convention on Protecting the Human Rights of Older Persons, Articles 12 and 25(b). See also Council of Europe, Committee of Ministers, Rec(2001)14 to member states on the European Charter on Water Resources.
251 UN General Assembly Resolution 64/292 (2010), para 1. Shortly thereafter, the HRC unanimously confirmed in Resolution 15/9 (2010), para 3, that the human right to clean drinking water and access to sanitation flows from the right to an adequate standard of living and is inextricably linked to the rights to health, life, and human dignity.
252 UN General Assembly Resolution 70/169 (2015), Ensuring “availability and sustainable management of water and sanitation for all” has been recognized as one of the Sustainable Development Goals; “Transforming our world: the 2030 Agenda for Sustainable Development,” UN General Assembly Resolution 70/1 (2015), goal 6.
254 CtteeESCR, General Comment No 15 (2003), para 31. See on this topic the Convention on the Law of Non-Navigational Uses of International Watercourses of 1997 (not yet in force, but which is recognized as an authoritative codification on the customary international law governing the issue), the ILC Resolution on Confined Transboundary Groundwater of 1994, and the Draft Articles on the Law of Transboundary Aquifers of 2008 adopted by the UN General Assembly in Resolution 63/124 (2008).
258 See the Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, UN Doc A/HRC/12/24 (2009), paras 13 ff.
259 This dimension of the right to water is closely related to international environmental law, in particular the Convention on the Law of Non-Navigational Uses of International Watercourses of 21 May 1997, and the ILC Draft articles on the Law of Transboundary Aquifers of 2008 adopted by the UN General Assembly in Resolution 63/124 (2008).
261 See section III.2.
262 See ECtHR, Dubetska and Others v Ukraine, Application No 30499/03 (2011), paras 105 ff (pollution of drinking water by a state owned enterprise), and Dzemyuk v Ukraine, Application No 42488/02 (2014), paras 77 ff (contamination of drinking water by a graveyard). In both cases, the Court found a violation of the right to private life (ECHR, Art 8).
266 Ibid, para 24. Regarding human rights obligations in the context of the privatization of water services see “Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation,” UN Doc A/HRC/15/31 (2010), paras 18 ff.
268 See, e.g., HRCttee, CO Thailand (2017), paras 29 and 32. See also Council of Europe, Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (11 January 2006), para 19.3,
270 CtteeESCR, General Comment No 4 (1991), para 8. See also on the normative content of this right the report of the Special Rapporteur on adequate housing of 25 January 2001, UN Doc E/CN.4/2001/51, paras 23 ff. Regarding the right to housing as guaranteed by ESCrev, Art 31, see ECtteeSR, European Federation of National Organisations Working with the Homeless (FEANTSA) v France, Complaint No 39/2006 (2007), para 76.
271 See CtteeESCR, General Comment No 7 (1997) and, e.g., CtteeESCR, CO Cyprus (2016), para 37, as well as the report of the Special Rapporteur on adequate housing of 8 March 2004, UN Doc E/CN.4/2004/48 dedicated to the topic of forced evictions.
273 The ACmHPR derives this aspect of the right to housing from the following entitlements: the right to property (ACHPR, Art 14), the right to health (ACHPR, Art 16) and family rights (ACHPR, Art 18(1)); ACmHPR, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96 (2001), paras 60 ff. Forced evictions are also a violation of the rights for respect of the home and private life, see ECtHR, Moldovan and Others v Romania (No 2), Reports 2005-VII, paras 102 ff.
274 E.g., ECtteeSR, Centre on Housing Rights and Evictions (COHRE) v Italy, Complaint No 58/2009 (2010), paras 66 ff, and International Centre for the Legal Protection of Human Rights (INTERIGHTS) v Greece, Complaint No 49/2008 (2010), paras 55 ff.
278 Basic Principles and Guidelines on Development-based Evictions and Displacement, in Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, UN Doc A/HRC/4/18, Annex I.
279 See Chapter 12, section II.1.l.
281 See, e.g., ECtHR (Grand Chamber), Akdivar and Others v Turkey, Reports 1996-IV, paras 88 ff. See also the similar jurisprudence of the IACtHR; e.g. Case of the Ituango Massacres v Colombia, Series C, No 148 (2006), paras 192 ff.
283 HRCttee, Naidenova et al v Bulgaria, Communication No 2073/2011 (2012), para 14.7; Georgopulos et al v Greece, Communication No 1799/2008 (2010), paras 7.2 f; and Elpida v Greece, Communication No 2242/2013 (2017), paras 12.4 ff.
286 For more details on this question, see Chapter 12, section II.1.l (Issue in focus).
288 See Chapter 18, section IV.2.
294 The average life expectancy in several countries of the global South is below sixty years whereas in many industrialized countries it is above eighty years: see <https://data.worldbank.org/indicator/SP.DYN.LE00.IN> (accessed 1 August 2018).
296 The CtteeESCR puts particular emphasis on this connection in the case of the right to drinking water which, according to its General Comment No 15 (2002), is embodied in both Art 11 and Art 12 of the ICESCR.
297 See Chapter 12, section II.1.
302 Thus, e.g., coercive medical treatment always constitutes interference with the right to privacy under ICCPR, Art 17 and ECHR, Art 8. See Chapter 12, section II.1.
306 CtteeESCR, General Comment No 14 (2000), para 34, and ACmHPR, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96 (2001), paras 50 ff. This prohibition also flows from guarantees of privacy; see Chapter 12, section II.1.l (Issue in focus).
311 See section II.2.d above (Issue in focus).
312 European Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine) of 4 April 1997.
314 The permissibility of embryo research depends on the relevant provisions of domestic law; the creation of embryos for research purposes, on the other hand, is prohibited (Convention on Human Rights and Biomedicine, Art 18).
315 Additional Protocol on the Prohibition of Cloning Human Beings of 12 January 1998, Additional Protocol concerning Transplantation of Organs and Tissues of Human Origin of 24 January 2002, Additional Protocol concerning Biomedical Research of 25 January 2005 and Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Genetic Testing for Health Purposes of 27 November 2008.
317 CtteeESCR, CO Egypt (2000), para 16; CO Senegal (2001), para 24; CO Sudan (2015), para 41; as well as General Comments No 14 (2000), para 22, and No 22 (2016), paras 49 and 59. CtteeEDAW, General Recommendation No 14 (1990) and CO Djibouti (2011), paras 16 ff, and CO Niger (2016), para 31.
318 ICESCR, Art 7(b). This obligation is also set out in numerous ILO conventions; see e.g. the Chemicals Convention, 1990 (No 170), the Safety and Health in Mines Convention, 1995 (No 176), and the Safety and Health in Agriculture Convention, 2001 (No 184).
319 For instance, the ECtHR held that the granting of a state permit for a goldmine whose operations endangered the health of the local population was a violation of the right to private life under ECHR, Art 8; Taşkin and Others v Turkey, Reports 2004-X, paras 111 ff.
320 In Kaba v Canada, Communication No 1465/2006 (2010), paras 10.1 ff, the HRCttee qualified female genital mutilation as inhuman and thus concluded that the deportation of a young woman at risk of such practices in her country of origin would amount to a violation of ICCPR, Art 7.
324 In circumstances of state custody, on the other hand, the state has an obligation to ensure the full realization of the right to health, see Chapter 3, section III.6.
329 E.g., IACtHR, Díaz Peña v Venezuela, Series C, No 244 (2012), paras 137 ff, Vera Vera v Ecuador, Series C, No 226 (2011), paras 39 ff, Loor v Panama, Series C, No 218 (2010), paras 218 ff, and Mendoza et al v Argentina, Series C, No 260 (2013), paras 189 ff.
330 On the principle of equivalence see ECtHR, Wenner v Germany, Application No 62303/13 (2016), paras 66 f, and ECtHR (Grand Chamber), Blokhin v Russia, Application No 47152/06 (2016) (key case), para 137. States are also obliged to take effective measures against communicable diseases in places of detention: ECtHR, Micu v Romania, Application No 5104/13 (2016), paras 44 ff.