Adoption of the General Comment no. 36 on the Right to Life
Human Rights Committees 124th session - October 2018
After almost four years of extensive work, the Human Rights Committee adopted the new General Comment no. 36 on the Right to Life, a major contribution to international law.
Yuval Shany, Chairperson of the Committee and Rapporteur of the draft, noted that the participation of all stakeholders was a 'welcome complication that had brought new perspectives'. At the adoption of the General Comment, he paid tribute to Nigel Rodley, former Committee member and Co-Rapporteur for the draft.
The Committee considers the right to life as a supreme right, from which States cannot derogate (§2 of the General Comment). It touches on the relationship between the right to life and other human rights, as well as other norms of international law. The Committee discussed in great detail the paragraphs about the death penalty, weapons of mass destruction, abortion, effective control and climate change.
During the 124th session, the Committee adopted paragraphs 54-70, finalising the second reading.
"The right to life is the prerequisite for the enjoyment of all other human rights. The general comment provides a rich and authoritative statement of the obligations deriving from the right to life, which the Committee defines as ‘the supreme right'. "
Several aspects of the death penalty are treated at length in the General Comment: legal methods of execution, the fact that the death penalty should only be imposed for the most serious crimes, fair trial guarantees etc.
During the final session on the General Comment, several members emphasized the value and importance of the abolitionist spirit of the document (§34), meaning that States should move in the direction of abolition, and cannot reintroduce the death penalty once it has been abolished.
Weapons of mass destruction
In that same session, several members stressed the importance of the prohibition of weapons of mass destruction, that is mentioned in the General Comment (§66). According to the Committee, there is a link between the right to life and the obligations of states to combat proliferation and to negotiate in good faith to achieve nuclear disarmament.
The Committee also considered the link between International Human Rights Law and International Humanitarian Law (IHL). States were concerned that the Committee was trying to superimpose human rights over IHL, which is a lex specialis, but the Committee clarified that both branches of law are complementary to it (§64).
The Committee received many comments from external stakeholders on this paragraph and spent considerable time on the discussion. The Committee made a link between the restrictions on access to abortion, including its criminalization, and its consequences on the right to life of women: ‘States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable’. (§8)
Turning to the obligation of States to respect the rights of all persons who are found within its territory and subject to its jurisdiction, the Committee confirmed the concept of effective control: ‘this includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner’ (§63).
According to Olivier de Frouville, member of the Human Rights Committee, ‘States responsibility for acts taking place outside of its territory is key, particularly for violations caused by private actors’.
Finally, the General Comment also contains an important paragraph on the link between climate change and the right to life. It includes the concepts of environmental degradation, private and public actors, the requirements for States to develop environmental standards and the principle of precaution (§62): ‘Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors’.
The Human Rights Committee decided that the topic of the next General Comment would be article 21 on the right to peaceful assembly.
Read the final text of the General Comment here.
Consult the webcast of the 124th session here: part 1, part 2, part 3, and part 4.
Read our articles on the discussion about the general comment in previous sessions: 123, 122, 121, 120.