|Everyone has the right to life, liberty and security of person.|
The Right to Life
The Universal Declaration and the ICCPR each begins its list of individual rights with the right to life. It has often been said that the right to life is the most fundamental of rights, and that no other right can exist without it. But what does it entail, and what is its meaning and scope? For example, how does the right to life relate to complex moral issues such as the death penalty, abortion, artificial insemination and euthanasia?
The Human Rights Committee in its General Comment 6 (1982) on Article 6 of ICCPR (which protects the right to life) declared the right to be the supreme right from which no derogation is permitted even in times of public emergency which threaten the life of the nation. It is a right which should not be interpreted narrowly. The Committee continued that "the protection of this right requires that States adopt positive measures." For example "it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics."
Concerning the death penalty, the Committee declared that "[w]hile it follows from Article 6(2) to (6) that State parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.'" The Committee concluded that abolition of capital punishment is desirable, and in fact required in the case of those State parties who had signed and ratified the Second Optional Protocol to the ICCPR, and that "all measures of abolition should be considered as progress in the enjoyment of the right to life."
The Right to Liberty and Security of Person
In the South African Constitutional Court case of Coetzee v. Government of the Republic of South Africa, 1994 (4) SA 631, Justice Sachs refers to different jurisdictions which have considered whether the phrase "right to liberty and security of person" should be construed as referring to one right with two facets, or to two distinct, if conjoint, rights. Another jurisprudentially controversial matter has been whether the words should be considered as applying only, or mainly, to the absence of physical constraint or whether they should be regarded as having the widest amplitude and extent to all the privileges long recognized as central to the orderly pursuit of happiness by free men and women.
These conceptual difficulties bring to mind Isaiah Berlin's distinction between negative and positive freedom. In the negative sense, freedom is "involved in the answer to the question 'What is the area within which the subject--a person or a group of persons--is or should be left to do or be what he is able to do or be, without interference by other persons?'"1 In the positive sense, freedom, so contents Berlin "is involved in the answer to the question 'What, or who, is the source of control or interference that can determine someone to do, or to be, this rather than that?'"2
The primary sense in which the phrase "liberty and security of person" is understood under public international law is to ensure that the physical integrity of every person is protected. As Justice Chaskalson stated in the South African Constitutional case of Ferreira v. Levin NO and Others, 1996 (1) SA 984, 170:
The American Declaration of Rights and Duties of Man, the ICCPR, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the African Charter on Human and People's Rights, all use the phrase "liberty and security of the person" in a context which shows that it relates to detention or other physical constraints.
In the same paragraph, Justice Chaskalson also refers to the textbook of Sieghart, which notes that, although "all the instruments protect these two rights jointly in virtually identical terms, they have been interpreted as being separate and independent rights," and that the European Commission of Human Rights and the European Court of Human Rights have found that what is protected is "physical liberty" and "physical security."
See Sieghart, The International Law of Human Rights, Clarendon Press, Oxford, 1992, at 139-42.
1. Isaiah Berlin, "Two Concepts of Liberty", in Four Essays on Liberty, Oxford University Press, 1969, at 121.
Peter Danchin, Columbia University