The Nature of Obligations Right to Life

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2. The Nature of ObligationsRight to Life Jan Kratochvíl

3. Reservations • Art. 2(1)(d) of Vienna Convention on the Law of Treaties: „'reservation' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State“ • Why reservations? • Art. 19: „A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: …the reservation is incompatible with the object and purpose of the treaty.“ Art. 57 ECHR „Reservations of a general character shall not be permitted under this article.“

4. Reservations • Austria to Art. 5 ECHR „The provisions of Article 5 of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution.“ • Bahrain: „... the Kingdom of Bahrain makes reservations with respect to the following provisions of the Convention: - Article 2, in order to ensure its implementation within the bounds of the provisions of the Islamic Shariah;“ • Art. 2 CEDAW „States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women“

5. Who decides? • In IL state parties • In HR treaty bodies, courts • ECtHR: Belilos v Switzerland • HRC: reservations to jus cogens, also most probably non-derogable rights prohibited (US reaction), reservations to OP purporting to exclude certain rights

6. What are the consequences? • Belilos v Switzerland: „At the same time, it is beyond doubt that Switzerland is, and regards itself as, bound by the Convention irrespective of the validity of the declaration. Moreover, the Swiss Government recognised the Court’s competence to determine the latter issue, which they argued before it.“ • HRC, General Comment 24: „The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.“ • Kennedy v Trinidad and Tobago, HRC, 1999

7. Derogations • Suspension of some obligations when it is required by state of emergency • Art, 2 ICCPR: „1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.“ • High threshold • Lawless v Ireland, ECHR, 1961 „an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed“ • A. and Others v. Secretary of State for the Home Department, House of Lords (2004)

8. Denunciations • Vienna Convention: Art. 54 The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. Art. 56 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. • HRC: „The rights enshrined in the Covenant belong to the people living in the territory of the State party.“ • ECHR: Article 58 – Denunciation 1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

9. Rules of Interpretation • Textual, systematic and teleological interpretation (outcome which advances the aim of the treaty – protection of individual human rights, Golder v UK) • Living instrument (Tyrer v UK) • practical and effective, not theoretical and illusory (Airey v Ireland) • Autonomous interpretation (Engel v the Netherlands)

10. Right to Life • Article 6 ICCPR 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. • Article 2 ECHR „1. Everyone's 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 escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.“ • General Comments, Case-law, Concluding Observations, Soft Law (Special Rapporteurs)