The Right to Life and ECHR 1950: Boundaries of State Interference - Article Example

The Right to Life and ECHR 1950: Boundaries of Interference [ID interference with a citizens right to life under Article 2 ECHR 1950 can never be justified”. This statement generates immense controversy. Does it demand negative rights, rights to be free from something, only, or does it imply positive rights? Does it restrict the right of abortion? What is a life, and what must be done to protect it? What is interference? Does it prevent the state from executing someone? What does it restrict as regards war, or police action? Article 2 presents many issues for United Kingdom human rights law and general jurisprudence, and these must be understood to understand British jurisprudence. To analyze Article 2s impact, it is vital to understand what it says1. Article 2 goes as follows: 1. Everyones 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. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a. in defence of any person from unlawful violence; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection. The laws clauses already give us important distinctions. First of all: The right under Article 2 is clearly largely negative. While the first clause, “Everyones right to life shall be protected under law”, could be used to support a positive rights argument against impositions that cause starvation or other threats to life, the rest of the clause indicates that it is a negative protection against state and private impositions. Further, the end of the first clause and the second establish that authorities do have the right to take away lives under a death penalty, and have the ability to use lethal force to quell riots or for other legitimate law enforcement requirements. But they can only use limited force. These elements were tested by McCann v. U.K.2. In the case, UK intelligence alleged an IRA or IRA-connected attack upon Gibraltar. The suspected IRA team included known explosives experts. During the surveillance of the suspects, the IRA team crossed into Spain, receiving no impedence from Spanish authorities. UK intelligence had reason to believe that a detonator could be used remotely, even across the Spanish border. The IRA team had also parked a car in a crowded location, and had used carbombings before as a method of terror. SAS soldiers were dispatched to intercept the team and arrest them for conspiracy. But during the arrest attempt, the SAS soldiers fired because they believed that the IRA team was reaching for detonators. The ensuing investigation found that, while the IRA team had no explosives or detonators on their person or in the vicinity, a car registered by the IRA team had timed explosives in it. The investigation concluded that the suspects were doing reconnaissance and were using the car they had parked as a placeholder for the car with explosives. The legal issues were clear. 1. Did the fact that the IRA team have no explosives or detonators on them obviate the threat of the literal ticking time bomb in a car unbeknownst to SAS intelligence? Did SAS intelligence act appropriately given what they knew as well as based on the ultimate facts? 2. Were the SAS dispatched for arrest, or for a de facto execution? 3. Was the force used disproportionate to the needs? The courts conclusion was complex and multi-faceted. They did ultimately conclude that there was a breach of Article 2, but the interesting part of the conclusion is why. The court ruled that the actions of the soldiers were appropriate, given what they believed and what a reasonable person would have done in the situation. The action was absolutely necessary because the soldiers had been warned about the risk of remote detonators that could be used to hold civilians hostage or harm the soldiers themselves. The court also ruled that, while the SAS planning had breached Article 2, they had not planned an execution mission, as the defense had suggested It was when they included the planning of the operation that the court found a breach. They concluded that the planning of force by the authorities was not “strictly proportionate” to the objectives, which were to save lives. This failure was threefold. First: The authorities had failed to arrest the IRA team at the border. Second: The planning team and authorities had not considered that intelligence might be wrong, as it ultimately was, and made allocations for force far beyond what was appropriate given the likelihood of erroneous intelligence. Third: SAS soldiers should not have been used, as they are specifically trained to kill. McCann v U.K. establishes that the use of lethal force can be justified under Article 2, but that the planning for it must be sensitive to intelligence failures, the type of units and personnel chosen to exercise force, and must choose the most minimal approach even that most minimal approach might be impractical for other reasons. McCann shows that issues can be complex even when the underlying facts and philosophies are well-accepted. What about when one is dealing with the very definition of the statute and its salient terms, the definition of “life?” Ellis writes in Catholic Medical Quarterly, The ECHR decisions have been based upon deliberate evasion of the issue of whether or not Article 2 applies to unborn life... In the Norwegian case the Commission even held that "it will not exclude that in certain circumstances this might be the case". However this has been followed by the assertion that it was not necessary to decide the point because even if it did apply, there was a discretion for states to limit the prohibition where the facts indicated some impairment of the mothers needs (even, as we have seen, of pretty trivial subjective apprehensions).3 Ellis argues that the Court should have put the right of the unborn child against the right of maternal preference and inconvenience and concluded for a more restrictive abortion right, pointing to Bruggemann where state legislation was justified in that vein. Ellis concedes that the ECHR writers probably did not intend for the statute to impinge one way or the other on abortion rights, but while framing intent is important for law, it is not exclusively so. What might be a reasonable analysis of the ECHR? The fact that the concerns of Article 2 of the ECHR seem to be largely, though not exclusively, about state imposition is probably the most relevant part. It would likely be a fair interpretation of the ECHR that abortions could not be mandated by the state, just like execution for the purpose of eugenics couldnt be. But if a private citizen murders, the ECHR is silent. Obviously in the case of murder, there would be a law written by each individual country, but in the case of abortion, if the laws of the country make it so that abortion is legal, that would not be an issue. Ellis notes, in support of this interpretation, that honesty on the part of patients and abortion providers who act in good faith is sufficient to be immune to ECHR-based prosecution, that the mental health and social/economic condition and preference of the mother is of the utmost under present law, and so forth. One also has to consider Article 2 in the context of other related ECHR Articles. Take Article 84. This Article says, in relevant part, Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society... Thus, the right to life is not just the right not to be killed, but is connected with other laws and rights that include rights to privacy, rights to the sanctity of correspondence and speech, rights to sanctity of the home, etc. Korff notes in his handbook on implementation of Article 2 that it is minimalist. ...[T]he Convention usually does not mpose rigid requirements on States. Rather, it sets certain minimum standards, while allowing States a certain discretion, a “margin of appreciation”, in how to meet those standards. The scope of this discretion, of this margin, depends on the nature of the right, on the nature of the issues and the importance of the interests at stake, and on the existence or absence of a European (or wider) consensus on the matter in hand.5 This is perhaps the most key element of Article 2 jurisprudence. It is designed to act as a brake, not as a guardrail. It slows down the state but is not designed to make every state have identical requirements. Whether Article 2 is being applied to police action, abortion rights, rights to execute prisoners, or anything else, Article 2 is designed to make sure that states do not overstep, not lock them into a uniform standard. Bibliography Buyse, A, ECHR Blog, Netherlands Institute of Human Rights. http://echrblog.blogspot.com/ Catholic Medical Quarterly, “Whose Rights are They?”, November 2001. Curtice, M, “The European Convention on Human Rights: an update on Article 3 case law”, Advances in Psychiatric Treatment,16: 199-206. doi: 10.1192/apt.bp.109.006825, 2010. Ellis, P, “The Grounds for Abortion”, Catholic Medical Quarterly, August 2003. Encyclopedia Britannica, “European Convention on Human Rights”. European Court of Human Rights, “Death penalty abolition”, October 2010, http://www.echr.coe.int/NR/rdonlyres/C20F17A5-5F49-47C9-9CBD- A2A26985E099/0/FICHES_Abolition_peine_de_mort_ENG.pdf Grubb, A, The Criminal Law Review, 1991 Korff, D, “The right to life: A guide to the implementation of Article 2 of the European Convention on Human Rights”, Human Rights Handbooks No. 8. Leeds University UK Law Online, “The European Convention on Human Rights”. McCann and others v United Kingdom [1995] 21 ECHR [1950] 97 GC. Mental Health Law Online, “Article 2”, January 2009. Pelovanqu, R, “The European Convention on Human Rights 1950”, June 10, 2010, http://www.suite101.com/content/the-european-convention-on-human-rights-1950- a247461 Poole, H, C Devine, CR Hansen, R Wilde, Human rights: the essential reference, Greenwood Publishing Group, 1999. Sukeeya, V, “The ECHR 1950 and the convention on the status of refugees: A comparison”, Obuolo. The European Convention on Human Rights November 1950. http://www.hri.org/docs/ECHR50.html United Kingdom Home Office. ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR). August 2010. Read More