1.01 This chapter describes the international legal status of the right to life and both its substantive and procedural elements. It was in 1945 that fundamental human rights, such as the right to life, were first reflected in international law. The Charter of the United Nations (UN Charter)Footnote 1 was adopted following, and predominantly in response to, the ravages of the Second World War and the Holocaust. The preamble to the Charter noted the determination of the peoples of the United Nations ‘to reaffirm faith in fundamental human rights … [and] in the dignity and worth of the human person’.Footnote 2
1.02 One of the declared purposes of the global body is to achieve international cooperation in ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.Footnote 3 UN member States further undertake ‘to take joint and separate action’ in cooperation with the United Nations, with a view to achieve ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.Footnote 4 Aside from this evocation of the prohibition of discrimination, however, the Charter does not identify which human rights and fundamental freedoms are to be respected.
1.03 In 1948, the Universal Declaration of Human RightsFootnote 5 addressed this obvious lacuna. Article 3 of the Declaration affirms that ‘everyone has the right to life, liberty and security of person’. The Universal Declaration of Human Rights is ostensibly a soft-law instrument, without direct legally binding force, although many, if not all, of the Declaration’s articles are reflective of customary law.Footnote 6 The Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention),Footnote 7 adopted by the UN General Assembly the same year as the Universal Declaration, is a treaty with explicit legal obligations to prevent and repress widespread violations of the right to life when committed with the requisite intent to destroy, in whole or in part, a minority.Footnote 8 This is so, even though the text of the Convention does not specifically refer to the right to life.
1.04 Adopted a year later, the four 1949 Geneva Conventions prohibit the wilful killing of ‘protected persons’ in situations of international armed conflict, including sick, wounded, or shipwrecked combatants and civilians in occupied territory, making such killing a crime of compulsory universal jurisdiction.Footnote 9 In non-international armed conflict, Article 3 common to the 1949 Geneva ConventionsFootnote 10 provides that in such situations, ‘violence to life and person, in particular murder of all kinds’ against anyone ‘taking no active part in the hostilities’ is ‘and shall remain prohibited at any time and in any place whatsoever’.Footnote 11 Further, 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 civilized peoples’,Footnote 12 is also prohibited (and is a war crime under the jurisdiction of the International Criminal Court).Footnote 13 Although, of course, the Geneva Conventions are instruments of international humanitarian law and not human rights treaties, the effect of these common provisions is to protect the life of all those who are not directly participating in hostilities in connection with an armed conflict.
1.05 The American Declaration on the Rights and Duties of Man, also known as the Bogota Declaration, was adopted on 2 May 1948, preceding by seven months the promulgation of the Universal Declaration of Human Rights. Article I of the Bogota Declaration stipulates that ‘every human being has the right to life’. In 1950, the Convention for the Protection of Human Rights and Fundamental Freedoms (better known as the European Convention on Human Rights),Footnote 14 a regional human rights treaty adopted by the Council of Europe, explicitly recognised the right to life, stipulating that ‘everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’Footnote 15 As of 1 May 2021, forty-seven States were party to the Convention.Footnote 16 But it would not be until 1966, with the adoption by the UN General Assembly of the International Covenant on Civil and Political Rights, that the right to life would be instituted as a global treaty norm in the modern era.
The Right to Life as a Treaty Norm
1.06 A treaty is the first of three primary sources of international law listed by the Statute of the International Court of Justice that the Court is obligated to apply with a view to resolving disputes as to the tenets of international law.Footnote 17 Treaties – ‘international conventions, whether general or particular’, in the words of the Statute – are defined in the 1969 Vienna Convention on the Law of Treaties as an ‘international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.Footnote 18
1.07 First and foremost in global treaty law with respect to the right to life is the International Covenant on Civil and Political Rights (ICCPR). The ICCPR was adopted by the UN General Assembly in New York on 16 December 1966,Footnote 19 entering into force a decade later on 23 March 1976. As of 1 May 2021, it had a total of 173 States Parties.Footnote 20 The following States were not party to the Covenant as of writing: Bhutan, Brunei, China (a signatory),Footnote 21 Comoros (a signatory), Cook Islands, Cuba (a signatory), Holy See, Kiribati, Malaysia, Micronesia, Myanmar, Nauru (a signatory), Niue, Oman, Palau (a signatory), Saint Kitts and Nevis, Saint Lucia (a signatory), Saudi Arabia, Singapore, the Solomon Islands, South Sudan, Tonga, Tuvalu, and the United Arab Emirates.Footnote 22
1.08 Article 6(1) of the ICCPR stipulates that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ No derogation from these provisions is possible, even in a ‘time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’.Footnote 23 The central importance of this provision under international law can be seen in the fact that, when assessing the legality of the threat or use of nuclear weapons under international human rights law for the purpose of an Advisory Opinion, the International Court of Justice specifically considered and applied Article 6 of the Covenant.Footnote 24
1.09 The Human Rights Committee, tasked with oversight of the implementation of the ICCPR by the Covenant’s States Parties,Footnote 25 has issued three General Comments on the right to life. In its first General Comment on the right to life (No. 6), issued in 1982, the Committee described the right to life as ‘the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation’.Footnote 26 Two years later, the Committee adopted a second General Comment on the right to life (No. 14), reiterating this description.Footnote 27 At the end of October 2018, the Committee issued its third – and by far the most elaborate – General Comment on Article 6. General Comment No. 36 explicitly replaces the two earlier General Comments (Nos. 6 and 14).Footnote 28
1.10 In its General Comment No. 36, the Committee again describes the right to life as the ‘supreme right from which no derogation is permitted’, noting that this is so ‘even in situations of armed conflict and other public emergencies which threaten the life of the nation’.Footnote 29 The right to life, the Committee observes,In its views, expressed in 1985 in relation to the case of Baboeram Adhin v. Suriname, the Committee stated that the right enshrined in Article 6 ‘is the supreme right of the human being’ and that, therefore, ‘the deprivation of life by the authorities of the State is a matter of the utmost gravity’.Footnote 31 Given its view that the victims in the case had been arbitrarily deprived of their lives contrary to paragraph 1 of Article 6, the Committee did ‘not find it necessary to consider assertions that other provisions of the Covenant were violated’.Footnote 32
has crucial importance both for individuals and for society as a whole. It is most precious for its own sake as a right that inheres in every human being, but it also constitutes a fundamental right whose effective protection is the prerequisite for the enjoyment of all other human rights and whose content can be informed by other human rights.Footnote 30
1.11 The notion of a hierarchy of rights might be open to question, but the portrayal of the right to life, at least under the Covenant, as a ‘supreme right’ gainsays such a stance. Theo van Boven, for instance, has asserted that while the ‘interdependence and indivisibility of all human rights has become axiomatic and largely uncontested’, there is ‘little doubt’ that the rights to life and to freedom from torture ‘are more fundamental or basic than the right to rest and leisure’.Footnote 33 Judge Weeramantry, in his dissenting opinion in the International Court of Justice’s 1996 Advisory Opinion on the legality of the threat or use of nuclear weapons, categorised the right to life as ‘one of the rights which constitute the irreducible core of human rights’.Footnote 34
1.12 The primacy of the right to life is also reflected by judgments issued by the regional human rights courts. This is in relation not only to the respective human rights treaties but also, on occasion, to the status of the right in global instruments. In 2001, for instance, the Grand Chamber of the European Court of Human Rights referred in its judgment in the Streletz case to the ‘the pre-eminence of the right to life in all international instruments on the protection of human rights’.Footnote 35 Its convergence in those instruments is ‘significant’, indicating that the right to life ‘is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights’.Footnote 36 Three years later, the Grand Chamber affirmed in its judgment in the Makaratzis case that Article 2 of the 1950 European Convention on Human Rights,Footnote 37 which ‘safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted’.Footnote 38
1.13 The Inter-American Court of Human Rights has taken a similar position on the status of the right to life under the 1969 Inter-American Convention on Human RightsFootnote 39 (also known informally as the Pact of San José).Footnote 40 In 1999, in its judgment in the Villagrán-Morales case, the Court declared: ‘The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible.’Footnote 41 In its judgment in the Cruz Sánchez case, the Court recalled that it has ‘repeatedly observed that the right to life occupies a fundamental place in the American Convention, since it is the essential basis for the exercise of other rights’.Footnote 42
1.14 In its interpretation of Article 4 of the 1981 African Charter on Human and Peoples’ Rights,Footnote 43 the African Commission on Human and Peoples’ Rights notes that the right to life is ‘universally recognised as a foundational human right’.Footnote 44 The Commission thereafter stresses the inter-relationship with the other rights recognised in the Charter: ‘In order to secure a dignified life for all, the right to life requires the realisation of all human rights recognised in the Charter, including civil, political, economic, social and cultural rights and peoples’ rights, particularly the right to peace.’Footnote 45
1.15 Article 5(1) of the 2004 Arab Charter on Human RightsFootnote 46 specifies that ‘every human being has an inherent right to life’. It is further specified that ‘this right shall be protected by law. No one shall be arbitrarily deprived of his life.’Footnote 47 The Arab Human Rights Committee, established under the 2004 Charter, has not elucidated its understanding of the normative status of the right to life under general international law.
1.16 The 2012 Association of South-East Asian Nations (ASEAN) Declaration on Human Rights,Footnote 48 an instrument that is not legally binding, stipulates in its Article 11 that ‘every person has an inherent right to life which shall be protected by law. No person shall be deprived of life save in accordance with law.’
The Right to Life as a Customary Norm
1.17 Custom is the second of the three primary sources of international law dictated by the Statute of the International Court of Justice for use in international legal disputes submitted to it. A norm of customary international law ordinarily binds every State. This is irrespective of whether the norm in question has been codified in a treaty and – if it has – whether any given State has adhered to that treaty.
1.18 To qualify as a customary rule, a norm must reflect State practice and associated opinion that the norm is binding under international law.Footnote 49 State practice – occasionally known by its Latin moniker, usus – describes both what States do (or do not do) and, especially, how they say they act.Footnote 50 Treaty-making may constitute relevant practice.Footnote 51 The wording in the Statute of the International Court of Justice makes it clear that the requisite practice must be general among States, but does not necessarily need to be universal or ‘perfect’. Thus, in its judgment on the merits in the Nicaragua case, the Court stated that it
does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.Footnote 52
1.19 The second of the two elements in the formation of custom is that the relevant State practice must be ‘accepted as law’. The ‘frequency, or even habitual character’ of the acts (or omission) ‘is not in itself enough’.Footnote 53 The requirement, described by the Latin phrase opinio juris sive necessitatis, is usually shortened to opinio juris. Thus, in its judgment in the North Sea Continental Shelf cases, the Court delineated the element of opinio juris in the following terms:As the Court further recalled, many international acts, such as in the field of ceremonial and protocol, ‘are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty’.Footnote 55 As is the case with State practice, however, opinio juris does not need to be universally consistent, though it must be general and settled.
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. … The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.Footnote 54
1.20 That every person without distinction has the right to life is certain. It is termed an ‘inherent’ right in Article 6 of the ICCPR, indicating that the provision was codifying a pre-existing customary rule. As noted above, the right to life has been recognised by regional human rights courts as ‘foundational’ and ‘fundamental’. The African Commission on Human and Peoples’ Rights has declared that the ‘right not to be arbitrarily deprived of one’s life is recognised as part of customary international law’.Footnote 56 The right has been termed ‘supreme’ by the Human Rights Committee. That it is a customary norm has also been endorsed by the world’s leading international lawyers.Footnote 57 Thus, for instance, Nigel Rodley affirmed in 2010 that ‘there can be little doubt that the right to life is a norm of customary international law’.Footnote 58 No State has gainsaid this affirmation. Moreover, there is no evidence that any State may lay claim to the status of persistent objector to the customary rule.Footnote 59
The Right to Life as a Peremptory Norm
1.21 While the status of the right to life’s substantive prohibition on arbitrary deprivation of life under customary law is clear, its status as a peremptory norm of international law has been less certain.Footnote 60 In 2019, Dire Tladi, the International Law Commission (ILC) Special Rapporteur on peremptory norms of general international law (jus cogens) noted that there was ‘some support for the peremptory character of the right to life, or at least the prohibition on the arbitrary deprivation of life’.Footnote 61 A norm of jus cogens is a customary norm that cannot be overridden by treaty and from which no derogation is possible. It is a norm accepted and recognised ‘by the international community of States as a whole’, which can be modified only by a subsequent norm of general international law having the same character.Footnote 62
1.22 Chapter III of the ILC’s 2001 draft articles on the responsibility of States for internationally wrongful acts is entitled ‘Serious breaches of obligations under peremptory norms of general international law’.Footnote 63 The Commentary by the ILC’s Special Rapporteur, James Crawford, declares that ‘those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination’.Footnote 64 While the list is not exhaustive, the absence of a reference to the right to life, or at least to summary or extrajudicial executions, is striking. In 2010, Christian Tomuschat considered the peremptory nature of the right as a whole is ‘a somewhat doubtful classification’ on the basis that the right to life ‘is never guaranteed in an absolute manner, but is subject to restrictions established by law’.Footnote 65
1.23 Leading global and regional human rights bodies do not share such doubts. In the Villagrán-Morales case, the Inter-American Court of Human Rights ‘underscored’ the jus cogens nature of the right to life.Footnote 66 In their separate opinions to the Inter-American Court’s judgment in the same case, Judges Cançado Trindade and Abreu-Burelli agreed.Footnote 67 In 2001, the Human Rights Committee indicated that Article 6 of the ICCPR in its entirety was a peremptory norm.Footnote 68 Other authorities generally concord with this assessment, believing that the right to life is a norm of jus cogens.Footnote 69 The ILC Special Rapporteur on jus cogens has acknowledged that ‘the permissibility of the death penalty is not an obstacle to the emergence of the right not to be arbitrarily deprived of life as a norm of jus cogens’.Footnote 70
1.24 The better view is that it is indeed necessary to distinguish the normative status of the right to life in toto and the core, substantive prohibition of arbitrary deprivation of life. Indeed, in its latest General Comment on the right to life, the Human Rights Committee affirmed: ‘Reservations with respect to the peremptory and non-derogable obligations set out in article 6 are incompatible with the object and purpose of the Covenant. In particular, no reservation to the prohibition against arbitrary deprivation of life of persons … is permitted.’Footnote 71 In 1987 in Section 702(c) of the Restatement of the Law, Third, Foreign Relations Law of the United States, published by the American Law Institute, the prohibition of ‘murder’ as a customary human rights rule was described as a norm of jus cogens.Footnote 72
1.25 No State has sought to ‘derogate’ by treaty from the international legal rule. When acts of arbitrary deprivation of life have been overtly committed by State authorities, they have been treated by other States as unlawful, and even as possible international crimes.Footnote 73 As Nigel Rodley opined in 2010, the ‘core content of the right cannot seriously be contested as jus cogens, as must the prohibition of the death penalty without basic fair trial standards’.Footnote 74
1.26 There is thus no possibility of entering a lawful reservation to the prohibition on arbitrary deprivation of life. The only human rights instrument that allows derogation from the right to life is the 1950 European Convention on Human Rights, and then only in a situation of international armed conflict. Thus, under Article 15(2), no derogation may be made from Article 2 on the right to life ‘except in respect of deaths resulting from lawful acts of war’. Article 2 of the Convention does not use the term ‘arbitrary’ to define the circumstances in which the taking of life will be unlawful, which are set out in paragraph 2 of the article.Footnote 75 Thus, the ‘reservation’ is a procedural means to allow ‘acts of war’ that would not violate the prohibition on arbitrary deprivation of life.Footnote 76
1.27 In sum, as the African Commission on Human and Peoples’ Rights has stated: ‘The right not to be arbitrarily deprived of one’s life’ is ‘recognised as a jus cogens norm, universally binding at all times’.Footnote 77 This is an accurate statement of international law.Footnote 78
The Right to Life as a General Principle of Law
1.28 General principles of law serve as the third primary source of international law identified by the Statute of the International Court of Justice. They are generally understood to offer an opportunity to the Court to identify rules common to domestic regimes in the absence of a treaty or customary rule on a particular issue.Footnote 79 As such, therefore, the notion is potentially less relevant to an assessment of the international legal status of the right to life.
1.29 That said, the right to life is certainly a general principle of law. Three-quarters of the world’s States have written Constitutions that explicitly recognise or guarantee the right to life (or at least its protection).Footnote 80 Moreover, murder (and other forms of homicide) is universally prohibited in domestic legal systems.Footnote 81 Thus, Tomuschat, despite his doubts as to the peremptory nature of the right, argues that the ‘most plausible’ argument is that the right ‘constitutes today a general principle of international law’.Footnote 82 In its General Comment on the right to life under the African Charter, the African Commission on Human and Peoples’ Rights duly stated that the right not to be arbitrarily deprived of one’s life is also recognised as part of the general principles of law.Footnote 83