International Alert – UN Swallows the Kool-Aid

In 2015, the UN Human Rights Committee began a process looking to arrive at what is known as a ‘General Comment’ on Article 6 of the UN International Covenant on Civil and Political Rights (ICCPR).

Article 6 of the ICCPR centres around ‘the Right to Life’.

General Comments are issued from time to time. Previous General Comments on Article 6 were written in 1982 and 1984 and dealt with capital punishment and nuclear proliferation respectively.

In 2009, a General Comment was raised that was somewhat critical of The Netherlands and their euthanasia regime:

7. The Committee remains concerned at the extent of euthanasia and assisted suicides in the State party.  Under the law on the Termination of Life on Request and Assisted Suicide, although a second physician must give an opinion, a physician can terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension.  (art. 6)

The Committee reiterates its previous recommendations in this regard and urges that this legislation be reviewed in light of the Covenant’s recognition of the right to life.

There was also a similar reference to the Dutch euthanasia law in 2001.

The first or working draft for the new General Comment created in 2015 also included a strong statement objecting to euthanasia and assisted suicide:

5. Deprivation of life involves a deliberate or otherwise foreseeable and preventable infliction of life-terminating harm or injury that goes beyond mere damage to health, body integrity or standard of living. Examples of deprivations of life regulated by article 6 include the carrying out of a death penalty, extra-judicial killings, murder, road-traffic deaths, death resulting from medical malpractice, assisted suicide, euthanasia and infanticide. Deprivation of life also represents a more serious attack against the lives of individuals than general threats or attacks directed against their personal security. Still, article 6 may require States parties to address threats to life and life-threatening harms and injuries that do not result in loss of life.

However, in July 2017, during its 120th session, the Human Rights Committee created a further draft commentary on ‘the Right to Life’ that includes access to euthanasia & assisted suicide and deleted the comments from the earlier draft:

“States parties [may allow] [should not prevent] medical professionals to provide medical treatment or the medical means in order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally wounded or terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity.”

(Note: the phrases in parentheses seem to indicate alternative texts. ‘Catastrophically’ is not further defined)

It is worth noting that paragraph 10, from which the above text is taken, is preceded by a commentary on the need for States Parties to prevent suicide.

A general guide to the operation of the Human Rights Committee in these matters suggests that the purpose of a General Comment is meant as a guide to ‘States and other actors in adopting measures that will enable them to fully comply with the rights enumerated’; in this case, to in Article 6.

However, the wording of the inclusion at paragraph 10 (above) is permissive – it seeks to allow rather than to mandate. If adopted, it may well create some sort of permission statement whereby states may rely on the interpretation in an effort to legislate.

This seems to hold all the hallmarks of creating an opportunity by stealth for States to argue that euthanasia and assisted suicide are not an offence against Article 6; something that the Human Rights Committee had previously held by degrees in its criticism of The Netherlands.

An interpretation of the force of General Comments by Kerstin Mechlem, Lecturer in Human Rights and International Law, Transitional Justice Institute, University of Ulster, UK is worth considering:    

“Views on the legal relevance of General Comments differ widely. Some commentators attach no legal value to them or regard them only as valuable indications of the content of rights and the steps that states parties could or should undertake to ensure implementation, as useful signposts, or as important aids for interpretation. According to others, General Comments have “practical authority” because they represent an important body of experience in considering matters from the angle of the respective treaty. Many commentators, however, accept that General Comments have considerable legal weight. They suggest that a committee is the most authoritative interpreter of the treaty it monitors and that states parties are not free to disregard a treaty body’s interpretation with which they disagree, despite its nonbinding nature. They view a treaty body’s output as more than mere recommendations. Some even regard General Comments as “authoritative interpretations” of the rights of a treaty.” (Emphasis added)

This is a significant and most serious development, regardless of what legal weight or otherwise is attributed to the final, published document.

The Human Rights Committee’s web page invites submissions from ‘Member States, other UN and regional human rights mechanisms, UN organisations or specialised agencies, National Human Rights Institution, Non-Governmental Organisations (NGOs), research institutions, and academics. The closing date is the 6th of October 2017.

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