Draft General Comment on the Right to Life
Issue of abortion provokes intense discussions within Committee
On the 14th, 18th and 22nd of March 2016, the Human Rights Committee continued their discussion of the first draft of General Comment 36 on article 6 (right to life) of the International Covenant of the Civil and Political Rights. The draft was prepared by two members of the Committee: Nigel Rodley and Yuval Shany. During the previous and initial overview which took place during the 115th Session of the Human Rights Committee (19th Oct - 6th Nov 2015), Paragraphs 1 to 5 were adopted.
In this second reading, Paragraphs 6 to 12 were thoroughly scrutinised and a last-minute redrafting of Paragraph 8 was undertaken by the Rapporteurs for review by the Committee in an extra hour appended to the third and final discussion. Serious and complex issues were under discussion, including abortion, suicide and euthanasia and their links to the scope of article 6; and opinion was divided on many points.
"Serious and complex issues were under discussion, including abortion, suicide and euthanasia and their links to the scope of article 6."
Right to life and enforced disappearances
Paragraph 6 discussing the relation between the right to life and the duty of the State to protect against violations of this right was ultimately split into two separate paragraphs, with the first defining ‘deprivation of life’ as a deliberate or otherwise preventable and foreseeable infliction of life-terminating harm or injury caused by an act or omission. The second paragraph concentrates on the duty of the State party to refrain from engaging in such conduct as would violate the terms of the aforementioned paragraph. The examples initially provided were removed on the basis that their inclusion created more problems than it solved.
In the discussion on enforced disappearances covered by Paragraph 7, some Experts expressed concern regarding the assumption that disappeared persons counted as deceased persons due to the obligation for their next of kin to produce a death certificate in order to acquire compensation for their loss. The redrafting of the text thus reflected the recent jurisprudence of the Committee affirming that the ‘right to life’, as defined by Article 6, is not limited strictly to the deprivation of life, and thus also refers to cases of enforced disappearance. As such, family members of disappeared persons were in no way obliged to provide proof of death in order to receive reparations for their loss, and the duty of the State in terms of prevention and redress was stressed.
Abortion and euthanasia
The opinions of the Committee on Paragraph 8 discussing abortion in the context of the ‘right to life’ was particularly divided, with some members advocating for greater stress on maternal mortality, whilst others expressed concern for the rights of the unborn child. Indeed, it was suggested that the term ‘foetus’ be changed to ‘prior to birth’, whilst the first use of the word ‘abortion’ was replaced with ‘termination of pregnancy’. The majority of members agreed that the first sentence referencing the American Convention on Human Rights should be removed, and the suggestion that the entire paragraph be relocated elsewhere in the document was taken on board. Ultimately, it was agreed that the Committee would have to reach a compromise whereby State criminalisation of abortion must not violate the right to life of the pregnant woman or her other rights as defined elsewhere in the Covenant.
In light of the amendments made to Paragraph 8, it was decided that Paragraph 9 was now irrelevant and was therefore removed from the content.
It was suggested that Paragraph 10 should be subsumed into Paragraph 11 as it was directly relevant to the latter topic discussing euthanasia and assisted suicide. The main challenge faced by the Committee was to strike a balance between personal autonomy and the role of the State to protect vulnerable groups and enact on limits placed on the issue. This reflected the need to harmonise between the right to life on the one hand and the right to not be forced to stay alive against one’s will on the other, in cases whereby such a person must otherwise endure unbearable suffering. There was general feeling amongst members that the issues of active euthanasia, passive euthanasia and assisted suicide needed to be addressed independently from each other, perhaps in two separate paragraphs.
The issues covered in this Session with regards to the General Comment were particularly complex. Ultimately, only Paragraphs 6, 6a and 7 were accepted in their amended form and provisionally adopted.
The Committee will continue the reading of the General Comment during the 117th session in June / July 2016.