The right to die in international law : a dead end or an innovative approach to human rights?

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The right to die in international law: a

dead end or an innovative approach to

human rights?

Margit Plomp

Public International Law LLM Mrs. Prof. Dr. Y.M. Donders 24th of July 2017

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Abstract

The practices of euthanasia and assisted-suicide are two controversial subjects within the legal field. At international, regional and national level there is debate regarding the possibility of a right to die, in the form of euthanasia and assisted suicide. Different forms of euthanasia and assisted suicide are treated in a distinctive manner, which amounts to controversy in the debate. This study attempts to answer the question to what extent international human rights law, in particular the right to life, implies a right to die in the form of euthanasia and assisted suicide. In other words, whether it could be possible to interpret existing human rights as formulating a right to die. It is argued that if the right to life is interpreted in the most reasonable fashion, in which case assisted suicide and euthanasia would be accepted as morally permissible, there is no need to postulate a separate right to die. At the international legal level there is no consensus regarding the right to die. There is no right to die codified in any of the international human rights treaties, nor is there custom regarding this topic. At the European legal level, human rights do not provide for a right to die in the form of assisted suicide and euthanasia. The national legal level gives an indication of how a right to die in the form of euthanasia and assisted suicide could be regulated. The Dutch euthanasia policy is currently unique in the international sphere, and shows how such a policy could amount to the acceptance of the practice of a right to die. The denial of a right to die would be unfair and cruel. No one should be obliged to endure pain and unbearable suffering. The denial of a right to die would imply a ‘duty to live’, no matter what the horrible condition of that life might be.

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Seneca isolated the sensitive issue of the quality of life very well in this letter to Lucilius. Quality of life should be regarded as more important than quantity of life. The practices of euthanasia and assisted-suicide are two controversial subjects within this area. In international law there is no provision that either permits or prohibits both practices. The word euthanasia comes from the Greek words eù (good) and thanatos (death), literally meaning a good death.2 This phrase would seem rather positive and worth pursuing, but there is much debate referring to both the moral and legal nature thereof. Euthanasia and assisted suicide are two separate practices. Euthanasia is performed by a physician, who will administer the lethal injection to the person requesting to end his/her life. Assisted suicide requires the help of another person to help to commit suicide, mostly by providing the means to do so.3

In this thesis I will discuss to what extent international human rights law, in particular the right to life, implies a right to die in the form of euthanasia and assisted suicide. Since at international, regional and national level there is debate regarding the right to die, this research is highly relevant. In other words, to see whether it could be possible to interpret existing human rights as formulating a right to die. Euthanasia and assisted suicide are subjects were, eminently, discussion arises. My focus will only be on the potential right to die with reference to euthanasia and assisted suicide. The committing of suicide without assistance will not be elaborated upon. In the first chapter the definitions and meaning of both euthanasia and assisted suicide will be explained. The theoretical framework of the issue will become clear. In the second chapter will be discussed what constitutes the right to life. Different treaties guaranteeing the right to life, both at international and regional level, will be reviewed. In the third chapter other human rights related to the right to die will be examined, both at international and regional level. For the interpretation of the treaties the interpretation

1_{Seneca ‘Letters to Lucilius’ excerpt from letter 70 in The Stoic Philosophy of Seneca (M Hadas ed and tr,} Norton, 1958).

2_{C Focarelli ‘Euthanasia’ (MPEPIL, October 2013)}

<http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e793> accessed 16 April 2017.

3_{P Lewis, ‘Assisted Suicide: What Does the Law in Different Countries Say?’ (BBC News, 6 October 2015)} <http://www.bbc.com/news/world-34445715> accessed 5 June 2017.

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methods provided in the Vienna Convention on the Law of Treaties will be used.4 The fourth chapter regards the right to die as a human right. As there is no codified right to die, the focus will be on secondary literature and the case law of the European Court of Human Rights (ECtHR) for the interpretation of the possible right to die. The Euthanasiewet of the Netherlands will also be reviewed, in combination with the concerns and recommendations expressed by the Human Rights Committee of the United Nations (HRC). Finally, the conclusion will consider to what extent international human rights law, in particular the right to life, implies a right to die in the form of euthanasia and assisted-suicide.

2. Euthanasia and assisted suicide 2.1 Euthanasia

The term euthanasia derives from the Greek words eù, meaning ‘good’, and thanatos, meaning ‘death’. It thus refers to a ‘gentle and easy death’.5 Euthanasia can be defined as the intentional taking of a person’s life by a physician, at the request of that person, in order to relieve pain and suffering.6 This could be done both by an action or an omission of the physician. Different forms of euthanasia will be discussed below. Subsequently, a moral distinction will be made between passive and active euthanasia, to show the different views on both forms of the practice.

2.1.1 Passive euthanasia

Passive euthanasia still involves the intention to end a person’s life for his/her interests, however there is no action, but an omission of the physician. With passive euthanasia the physician withdraws or withholds life-prolonging treatment. It is generally believed that with passive euthanasia it is the disease or deficient itself that in principal causes the death of the person.7 Passive euthanasia could be considered as the ‘letting die’ of the person, since there is no real action taken by the physician to make sure the person remains alive.8 Passive euthanasia is the most accepted form of euthanasia, in many States this will not make the physician violate its obligations.9

4_{Vienna Convention on the Law of Treaties (VCLT) (adopted 23 May 1969, entered into force 27 January 1980)} 1155 UNTS 331, Article 31.

5_{C Focarelli (n 2).}

6_{LJ Materstvedt and others, ‘Euthanasia and Physician-Assisted Suicide: a View from an EAPC Ethics Task} Force’ (2003) 17 Palliative Medicine 97, 98; H Kuhse, ‘Euthanasia Fact Sheet’ (The World Federation of Right

to Die Societies, July 1992) <http://www.worldrtd.net/euthanasia-fact-sheet > accessed 21 May 2017.

7_{E Garrard and S Wilkinson, ‘Passive Euthanasia’ (2005) 33 J Med Ethics 64; C Focarelli (n 2).} 8_{H Kuhse (n 6).}

9_{For example: L Srivastava, Law and Medicine (2nd edn, Universal Law Publishing, 2013) 145; GV Khyathi} ‘Active Euthanasia vs. Passive Euthanasia, the Lesser Evil Act’ (2015) 2 Journal of Management and Commerce

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2.1.2 Active euthanasia

Active euthanasia is the deliberate ending of the life of a person through an action of a physician, generally through a lethal injection. It is generally believed that the principal cause of death is the conduct of the physician.10 Active euthanasia can be considered as the ‘killing’ of the person, in contrast to passive euthanasia.11

2.1.3 Voluntary euthanasia

In voluntary euthanasia a person’s life will be put to an end at his/her request, the person itself makes the decision. Voluntary euthanasia could be either active or passive. The consent of the person who wishes to die is fundamental.12

2.1.4 Non-voluntary euthanasia

In non-voluntary euthanasia there is no request of the person whose life will be ended, since that person is not able to express his consent and thus will not do so. The person is unable to decide on its own life.13 In this case relatives of the patient or the physician, decide on behalf of the patient.14

2.1.5 Involuntary euthanasia

Involuntary euthanasia is when the life of the person is ended against his/her wish. The person has the ability to consent to euthanasia, but chooses to refrain from the opportunity. The difference between non-voluntary and involuntary euthanasia is that non-voluntary euthanasia is considered mercy killing, while involuntary euthanasia could amount to murder.15

2.2 The presumed moral distinction between active and passive euthanasia

The beliefs of many people drive them to make a moral distinction between active and passive euthanasia, believing that it is acceptable to withhold treatment and letting a person die, but it is not acceptable to kill a person intentionally.16 Passive euthanasia is relatively

6; W Gray, ‘Right to Die or Duty to Live? The Problem of Euthanasia’ (1999) 16 Journal of Applied Philosophy 19, 21.

10_{C Focarelli (n 2).} 11_{H Kuhse (n 6).} 12_{C Focarelli (n 2).}

13_{J Fieser, ‘Euthanasia’ (2008) <https://www.utm.edu/staff/jfieser/class/160/6-euthanasia.htm> accessed 24 May} 2017.

15_{J Fieser (n 13), ‘Euthanasia and Assisted Suicide’ (NHS, 1 August 2014)}

<http://www.nhs.uk/conditions/Euthanasiaandassistedsuicide/Pages/Introduction.aspx#> accessed 25 May 2017; GV Khyathi (n 9).

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uncontroversial and has been generally agreed upon as being morally acceptable.17 However, it might be argued that active and passive euthanasia are not that different as is believed. And that if one is accepted, the other should be accepted, in a moral sense, as well.18

In some cases the use of passive euthanasia might cause a longer death bed for the person concerned. This might make life less humane for that person than if active euthanasia was applied, and say a lethal injection was used. In such cases active euthanasia should be considered to be more preferable than passive euthanasia, and not the other way around. This could be a strong argument to deem active euthanasia a moral option as well. Passive euthanasia might lead to more suffering rather than less and is, subsequently, contrary to the idea that the patient’s life should not be prolonged.19

A statement made by the American Medical Association (AMA) reflects another critical issue of the debate very well; ‘the intentional termination of the life of one human being by another – mercy killing – is contrary to that for which the medical profession stands’.20_{It forbids}

‘mercy killing’, but after that it denies that the cessation of treatment is also considered as ‘the intentional termination of life’. However, by withholding treatment the consequence is precisely that the life of one human being is intentionally terminated by another human being. A choice has been made to stop with treatment, action thus has been taken, amounting to an intentional termination of life.21However, in these cases the actions of the doctor are motivated by humanitarian reasons, not by personal gain for the doctor, which in most cases of killing or murder is the case.22 The process of being ‘allowed to die’ can be relatively slow and painful, while a lethal injection is regarded relatively quick and without suffering. It is not the bare distinction between killing and letting die that makes the difference, but rather the other factors – such as a murderer’s personal gain versus the doctor’s humanitarian motivation – which account for different reactions in different cases.23

The most common practice is where the physician agrees to withhold treatment to allow the patient to die sooner than he otherwise would. An argument given for this practice could be

17_{GV Khyathi (n 9); K Crocker ‘Why Euthanasia and Physician-Assisted Suicide are Moraly Permissible’} (2013) Honors Ethical Issues and Life Choices (PHI2630) Paper 10; L Srivastava (n 9) 145; W Gray (n 9) 21. 18_{J Rachels, ‘Active and Passive Euthanasia’ (1975) 292 N Engl J Med 78.}

19_Ibid. 20_Ibid. 21_Ibid. 22_Ibid. 23_Ibid.

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that the person dies of the diseases that afflict him/her. With is contrary to active euthanasia, where the doctor causes the death of the person. However, it is not entirely correct to state that in passive euthanasia the physician does nothing, for he does one very important thing: he lets the patient die by withholding treatment. ‘Letting die’ is certainly different from other types of action, but for the purpose of moral assessment, it remains some form of ‘action’. It is subject to moral appraisal in the same way as a decision to kill someone would be. However, many believe that killing someone is worse than letting someone die.24 This is perhaps also influenced by criminal law, where in most cases actions are punished more severely than omissions, leading to criticism from both opponents and proponents of euthanasia.25 If a physician lets a person die for humane reasons, he is in the same position as when he gives the patient a lethal injection for humane reasons.26

All these arguments could suggest that there is no moral difference between passive and active euthanasia, considered in themselves. Active euthanasia is not worse than passive euthanasia. There could be moral differences in the consequences, but these may make active euthanasia the preferred option over passive euthanasia. In many cases, active euthanasia will be the more humane alternative. Both active and passive euthanasia are being done to get the same result: a humane death of the patient.27 This discussion is important, since if this is believed to be true, it could be argued that based on the result of the actions a distinction is not relevant for regulation regarding the subject. If it is decided that euthanasia is desirable in a given case, it should also be decided that at that moment death is no greater evil than being kept alive.28

2.3 Assisted suicide

Assisted suicide is similar to euthanasia, since it consists of aiding an incurable patient to die

humanely, when that person concerned is not capable of performing the action himself or herself.29 The difference is that with assisted suicide, the physician is not the one that administers the lethal injection. The physician prescribes the lethal injection, but the patient or its family members administer it themselves.30

24_Ibid.

25_{C Focarelli (n 2).} 26_{J Rachels (n 18).}

27_{J Rachels (n 18); GV Khyathi (n 9); C Focarelli (n 2).} 28_{J Rachels (n 18).}

30_{J Pereira, ‘Legalizing Euthanasia or Assisted Suicide: the Illusion of Safeguards and Controls’ (2011) 18} Current Oncology 38.

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2.4 The difference between voluntary active euthanasia and assisted suicide

Opinion is divided whether a distinction exists between voluntary active euthanasia and assisted suicide. Some argue that aiding someone to commit suicide is one thing, but it is something else to kill a person. Others argue that voluntary euthanasia and assisted suicide are equivalent, since both causes are similar.31 In both actions, the physician’s participation is dependent on the voluntary request of the person concerned.32

With assisted suicide the patients perform the final act of ending their lives, making their actions more likely to be autonomous and not excessively influenced by external pressures. Some argue that for this reason the patient has more control over his/her destiny than with euthanasia. Autonomous decisions are desirable and less receptive to abuse.33 There is the possibility of deciding not to administer the needle in the end, while in voluntary active euthanasia the physician places the injection. The fact that the patient may change his/her mind is not an argument at all to prefer the aid of a physician in administering the lethal injection, on the contrary I would say. Since the autonomy of the patient might then be less respected than if the lethal injection is administered by themselves. However, the chance that the person concerned will change its mind in that split second seems too remote to be considered a reason for preferring assisted suicide to voluntary active euthanasia.34

No moral distinction can be drawn between assisted suicide and voluntary active euthanasia in their consequences.35 It is possible there is a distinction between the causes of the two practices. However, it must not be forgotten that the role of the physician in assisted suicide is also significant. He provides the lethal injection to the patient and explains how to use it. The person concerned cannot obtain the lethal substance, in a legal manner, without the physician’s aid. The only part where the physician does not act is the last part of the process, the injecting of the needle. Even though the patient’s own participation is necessary to commit suicide, the physician shares responsibility for the death of the person concerned.36

32_{N Dixon, ‘On the Difference between Physician-Assisted Suicide and Active Euthanasia’ 25 Hastings Center} Report no. 5 (1998), 25.

33_{N Dixon (n 32) 26.} 34_{Ibid 26.}

35_{Ibid 27; DW Brock, ‘Voluntary Active Euthanasia’ 22 Hastings Center Report no 5(1992) 10.} 36_{N Dixon (n 32) 27 and 28.}

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3. The legal framework of the right to life

The right to life has been considered the ‘supreme human right’ by the Human Rights Committee (HRC).37 There can be little doubt that it is a rule of customary international law, less certain is whether the right could be classified as jus cogens.38 The right to life has been codified in different treaties, at both international and regional level. The right not to be arbitrarily deprived of life is primarily a negative obligation. States have to refrain from arbitrarily depriving human beings of their life.39 In this chapter the different sources of law regulating the right to life will be discussed.

3.1 The Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) was adopted in 1948 by the United Nations General Assembly (UN GA).40 The UDHR is a mere declaration, so it is not in itself a legally binding instrument. However, it encompasses a series of principles and rights based on human rights standards enshrined in other international instruments, which are legally binding.41 Furthermore, most provisions of the UDHR have been recognized as customary international law.42

The right to life is only mentioned summarily in the UDHR. Article 3 provides a right to life: ‘everyone has the right to life, liberty and security of person’.43_{There is no further reference}

in the UDHR to the right to life. The right was not further developed due to disagreement on what this substantive right should entail.44

3.2 The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966 by the UN General Assembly. Each State party to the ICCPR has to respect and ensure the rights to

37_{General Comment No. 6: Article 6 (Right to Life), 30 April 1982.}

38_{NS Rodley, ‘Integrity of the Person’ in D Moeckli, S Shah and S Sivakumaran (eds), International Human}

Rights Law (2nd_{edn, Oxford University Press, 2014) 185.} 39_{NS Rodley (n 38) 191.}

40_{Universal Declaration of Human Rights (adopted 10 December 1948) 217 A (III) (UDHR).}

41_{United Nations Office of the High Commissioner for Human Rights, ‘Declaration on Human Rights}

Defenders’ <http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx> accessed 25 May 2017. 42_{H Charlesworth, ‘The Universal Declaration of Human Rights (1948)’ (MPEPIL, February 2008)}

<http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e887> accessed 21 July 2017; H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995-1996) 25 Georgia Journal of International and Comparative Law 287, 298.

43_{UDHR (n 40) Article 3.} 44_{NS Rodley (n 38) 184.}

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all individuals within their territory and subject to their jurisdiction.45 Article 6 states the right to life as ‘every human has the inherent right to life’.46 There is little doubt that the right to life is a rule of customary international law.47 The phrase ‘shall be protected by law’ has the connotation of a positive obligation for the State. It lends itself to an interpretation that States must investigate apparent unlawful killings.48 The Human Rights Committee adopted General Comment No. 6 in 1982. The Human Rights Committee stated that the right to life is ‘the supreme right from which no derogation is permitted’.49 This also follows from Article 4(2) of the ICCPR, which states that not even in times of public emergency derogation from the right to life is permitted.50

The travaux préparatoires of the ICCPR held that the right to life was not a right conferred on an individual by the society. Society, in fact, owed a duty to the individual to respect its right to life. Article 6 ICCPR sends out a clear message, similar to that in the UDHR, that the right to life is inherent and inalienable. The right comes from our nature as human beings and not from the laws of any particular state. However, as can be read from the sentence ‘no one shall be arbitrarily deprived of his life’51_{, the right to life is not absolute.}52

3.2.1 The Human Rights Committee

The Human Rights Committee (HRC) is the body of independent experts that monitors implementation of the ICCPR by its Member States.53_{It can adopt General Comments, which}

demonstrate its interpretation of the scope and meaning of provisions and obligations of the State Parties under the ICCPR.54

45_{International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March} 1976) 999 UNTS 171 (ICCPR) Article 2.

46_{ICCPR (n 45), article 6.} 47_{NS Rodley (n 38) 185.} 48_{NS Rodelay (n 38) 191.}

49_{General Comment No. 6 (n 37) §1.} 50_{ICCPR (n 45) Article 4(2).}

51_{ICCPR (n 45) Article 6; in the next section this will be elaborated upon.}

52_{E Wicks, The Right to Life and Conflicting Interests (1st edn, OUP, 2010) 41-42.}

53_{United Nations Office for the High Commissioner of Human Rights, ‘Monitoring civil and political rights’} (Office for the High Commissioner of Human Rights)

<http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx> accessed 7 July 2017.

54_{United Nations Office for the High Commissioner of Human Rights ‘Human Rights Treaty Bodies – General} Comments’ (Office for the High Commissioner of Human Rights)

<http://www.ohchr.org/EN/HRBodies/Pages/TBGeneralComments.aspx> accessed 7 July 2017; ICCPR (n 45) Article 40.

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3.2.1.1 General Comment 6

General Comment 6 was adopted already in 1982. As mentioned earlier it declared that the right to life is a supreme right from which no derogation is permitted, not even in time of public emergency, which threatens the life of the nation.55 The HRC noted that the right to life is often too narrowly interpreted. The notion ‘inherent right to life’ cannot properly be understood in a restrictive manner. For the protection of the right to life it is required that States adopt positive obligations as well as negative obligations.56 General Comment 6 does not mention anything regarding euthanasia or assisted suicide.

3.2.1.2 General Comment 36

General Comment 36 has not been adopted yet, however general discussions have been held by the HRC for its preparation. The purpose of this General Comment is to expand upon its earlier General Comment regarding the right to life, as new experience has been obtained from the review of State reports and communications and in the adoption of General Comments on related topics. A draft version of General Comment 36 has been published by the HRC.57 According to this draft the right to life concerns ‘the entitlement of individuals to be free from acts and omissions intended or expected to cause their unnatural or premature death, as well as their legitimate expectation to enjoy a dignified existence’.58_{By stating that}

the deprivations of the right to life may not be arbitrarily in nature, the first paragraph of Article 6 does indirectly justify some forms of deprivations. Thus, the right to life is not an absolute right, it is however inherent in every human being. According to General Comment 36, 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’.59 Assisted suicide and euthanasia fall within deprivations of life regulated by Article 6.60 It further states that State parties may allow medical professionals to assess, on a highly exceptional basis, on case-by-case basis whether or not to accommodate and as a method of as last resort ‘explicit, unambiguous, free and informed requests for the termination of life-prolonging treatment made by mortally wounded or terminally ill adults, who experience intolerable pain and suffering and wish to die with

55_{ICCPR (n 45) Article 6 and 4; General Comment No. 6 (n 37) §1.} 56_{General Comment No. 6 (n 31) §5.}

57_{United Nations Office for the High Commissioner of Human Rights ‘Procedure for Adoption of the General} Comment No. 36’ (Office for the High Commissioner of Human Rights)

<http://www.ohchr.org/EN/HRBodies/CCPR/Pages/GC36-Article6Righttolife.aspx> accessed 12 May 2017. 58_{HRC ‘Draft General Comment 36: Article 6: Right to Life’ (2 September 2015) UN Doc}

CCPR/C/GC/R.36/Rev.2 §3.

59_{Draft General Comment No. 36 (n 58) §5.} 60_{Draft General Comment No. 6 (n 58) §5.}

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dignity’.61 The HRC, thus, allows for some form of assisted suicide or even passive euthanasia, while be it ‘on a highly exceptional basis’.62

3.3 The European Convention on Human Rights

The European Convention on Human Rights (ECHR), was adopted by the Council of Europe in 1950 and entered into force in 1953.63 The ECHR was the first document to give effect to certain rights provided for in the UDHR and to make them binding.64 With the ECHR the European Court of Human Rights (ECtHR) was established.65 The Court is accessible for individuals, NGOs and groups of individuals that claim to be victim of a violation by one of the Parties of their rights under the ECHR.66

Article 2 reads that ‘everyone’s right to life shall be protected by law.’67 The right to life under the ECHR has been further interpreted through case law of the ECtHR. The provision safeguards the right to life and sets out strictly construed circumstances in which deprivation of life may be justified. It is regarded as one of the most fundamental provisions from the ECHR, from which no derogation is allowed.68 The object and purpose of the ECHR requires that the right to life needs to be interpreted and applied in such a manner to make its safeguards effective and practical.69_{Next to negative obligations, States thus also have a}

positive obligation under the ECHR to protect the right to life, which can be implied from the part ‘shall be protected by law’. States should take appropriate steps to safeguard the lives of those under its jurisdiction.70_{Exceptions to the right to life are broad, since the right to life is}

likewise formulated in a broad sense. The article fails to declare a right to life, it rather recognizes an existing right to life that needs protection by law.71

61_{Ibid §10.} 62_{Ibid §10.}

63_{European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November} 1950, entered into force 3 September 1953) ETS 5 (ECHR).

64_{The European Convention (European Court of Human Rights)}

<http://www.echr.coe.int/pages/home.aspx?p=basictexts> accessed 12 May 2017. 65_{ECHR (n 63) section II.}

66_{ECHR (n 63) Article 34.} 67_{ECHR (n 63) Article 2.}

68_{Makaratzis v Greece (App No 50385/99) (ECtHR, 20 December 2004) §56.}

69_{McCann and others v the United Kingdom (App No 18984/91) (ECtHR, 27 September 1995) §146-147.} 70_{NS Rodley (n 38) 191; Osman v the United Kingdom (App No 23452/94) (ECtHR, 28 October 1998) §115..} 71_{E Wicks (n 52) 42-44.}

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4. Other human rights related to the possible right to die

Not only the right to life could be a relevant international human right on which arguments regarding a right to die could be based. Below, other human rights, which could be relevant regarding the right to die, will be discussed.

4.1 The right to self-determination

The right to self-determination is not mentioned in the European Convention on Human Rights. It is however explicitly mentioned in Article 1 of the ICCPR.72 General Comment 12 of the Human Rights Committee stated that this right is of ‘particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion of the strengthening of those rights’.73 The State thus has the obligation to take individual self-determination into consideration when interpreting other provisions of the ICCPR.

In the debate regarding euthanasia, there is major disagreement relating to the weight that is given to the self-determination of the patient. Proponents of euthanasia argue that denying a ‘right to euthanasia’ would force people to suffer against their own will, which would be considered cruel and in breach with human dignity.74_{Opponents, however, argue that}

self-determination might not be such a central point with regard to euthanasia. The crucial point of the debate is rather considered to be about the duty to prevent suffering.75_{People wanting to}

end their lives through euthanasia and assisted suicide, need to be free to decide on their own. 4.2 The right not to be subject to cruel, inhumane or degrading treatment

The UDHR, the ICCPR and the ECHR all provide a provision that prohibits torture and cruel, inhumane or degrading treatment, be it in different wording.76 There is no doubt that this right is a norm of customary international law. There are different indications that prove this statement. First of all, there are no exceptions to this prohibition, nor is any derogation allowed, not even in times of public emergency of war. Secondly, no State claims to have a right to torture.77 In addition, the prohibition of torture is considered a rule of jus cogens, a

72_{ICCPR (n 45), Article 1.}

73_{General Comment No. 12: Article 1 (The Right to Self-Determination), 13 March 1984 §1.}

74_{B van den Akker and others, ‘Euthanasia and International Human Rights Law: an International Debate’} (1997) 37 Medicine, Science and the Law 289, 290; W Gray (n 9) 22.

75_{B van den Akker and others (n 74) 291.}

76_{See Article 7 and 10 ICCPR, Article 3 ECHR and Article 5 UDHR.} 77_{NS Rodley (n 38) 176.}

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peremptory norm of international law.78 It has been described as such by the ICJ, the ECtHR and the HRC.79

The prohibition of torture and other ill-treatments is primarily a negative obligation. States have to refrain from engaging in practices concerned. Nonetheless, it is generally accepted that, if torture has taken place, the State has an obligation to initiate an investigation. This results in the fact that in certain circumstances, the State likewise has a positive obligation with regard to the prohibition of torture and other ill-treatments.80

4.3 The right to respect for private life

The right to respect for private and family life has been codified in Article 8 of the ECHR.81 The Court determined that the right to respect to private life is incapable of an exhaustive interpretation.82 The concept is clearly wider than privacy and it concerns a sphere within which everyone can freely pursue the development and fulfillment of its personality.83 Regarding the choice on when and how to end life, the Court has confirmed that this is one of the aspects inherent in the right to respect for private life.84

The UDHR contains a similar right, under Article 12. This article reads: ‘no one shall be subjected either to arbitrary interference in his private, family life, home and correspondence, or attacks upon his honor and reputation’.85_{This right is relevant for personal choice}

regarding death and dying, although it is phrased as a freedom from interference with one’s private life.86

78_{Ibid 177.}

79_{Eg ICJ, Questions relating to the Obligation to Prosecute and Extradite (Belgium v. Senegal) [2012] ICJ Rep,} §99; Al-Adsani v UK App no 35763/97 (ECtHR, 21 November 2001) §61; HRC, General Comment 29: Article 4: Derogations During a State of Emergency, 31 August 2001 §3.

80_{NS Rodley (n 38) 182-183.} 81_{ECHR (n 63), Article 8.}

82_{Costello-Roberts v UK App no 13134/87 (ECtHR, 25 March 1993) §36; Niemietz v Germany App no} 13710/88 (ECtHR, 16 December 1992) §29.

83_{U Kilkelly, A Guide to the Implementation of Article 8 of the European Convention on Human Rights (Human} Rights Handook No. 1, Council of Europe, 2001) 11.

84_{Haas v Switzerland App no 31322/07 (ECtHR, 20 June 2011) §51.} 85_{UDHR (n 40), Article 12.}

86_{JJ Paust, ‘The Human Right to Die with Dignity: A Policy-Oriented Essay’ (1995) 17 Human Rights Quarterly} 463, 476.

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5. The right to die as a human right

The right to die has not been codified in any international human rights treaty. It is even the question whether there exists a legal right to die. Below, the framework of that possible right to die will be discussed.

5.1 The moral base of a possible legal right to die

Most of the controversy regarding the possible right to die is about the actively killing of a person on its request, rather than the letting die of that person. Two distinct moral questions could be asked regarding euthanasia and assisted suicide. The first is whether these practices are accepted in a moral sense, whereas the second question is whether they ought to be made legal.87 Some people argue that if the practices are to be found immoral, they ought to be illegal as well, and vice versa. However, it may be possible that these two questions could answered independently.

Some argue, that if the right to life is interpreted in the most reasonable fashion, that would be sufficient to show that assisted suicide and euthanasia are permissible in a moral way. There is no need to postulate a separate right to die in order to reach this conclusion. The validity of committing assisted suicide or euthanasia by willing others could be expressed in terms of a right to die, which is completely derivative from the right to life.88 Opponents mostly base their statement on this same right and argue that it is wrong to kill someone that has the right to life.89 The attribution of a right to life is widely accepted. Be that as it may, the debate rather is on whether in addition to a right to life people also enjoy a right to die.

The crucial question with regard to assisted suicide and euthanasia is whether the right not to be killed, the negative right to life, could be waived. If a right not to be killed includes the power to waive that right, then the right not to be killed would not preclude assisted suicide and voluntary euthanasia. Such a power would undoubtedly allow these practices.90_{It is}

apparent that even if a right not to be killed is what some would call ‘inalienable’, it could still be waived. One could grant a specific person at a specific time permission to kill one in a

87_{D Benatar, ‘Assisted Suicide, Voluntary Euthanasia and the Right to Life’ in J Yorke (ed.), The Right to Life}

and the Value of Life: Orientations in Law, Politics and Ethics (Ashgate Publishing 2013) 292-293.

88_{Ibid 308.} 89_{Ibid 293.} 90_{Ibid 294.}

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specific way. Others would still have the duty to refrain from killing the bearer of the right to life.91

If we recognize that life could become so atrocious that continuing it is no longer in the person’s interests, we might also recognize that the right not to be killed could outlive its purpose, that of protecting the rights of the individual concerned. The person’s interests as mentioned here would then be in the area of self-determination, prohibition of inhumane and degrading treatment and respect for private life. Those who deny that the right to life also includes the power to waive a claim that one would not be killed, treat the right to life contrasting to other rights, where it is generally allowed to waive the right. A right must be liable to waiving if it is for the bearer’s interest, since here rights essentially protect interests.92

5.2 Slippery slope arguments

The right to life as provided for in the UDHR and the ICCPR is not a guarantee or a protection against all forms of death, it prohibits unjust deprivation of life against the will of the holder of the right to life. An element of choice can be derived from the right to life, it can be implied that it protects the right to choose whether or not to continue living.93

Some of the main arguments of opponents of regarding assisted suicide as a right to die are slippery slope arguments. Two relevant slippery slopes arguments will be distinguished here. The first is that legalization and facilitation of voluntary euthanasia and assisted suicide would eventually lead to the proliferation of cases of involuntary euthanasia. The second is that if voluntary euthanasia is accepted for the terminal ill, eventually we may accept it for others whose suffering is of non-terminal origin. The problem with slippery slopes arguments is, however, that they are formally invalid as arguments. They require empirical proof that the bottom of the slope will eventually be reached if started at the top. In many cases, however, this proof is not available.94

91_{Ibid 295.} 92_{Ibid 297-298.}

93_{S Holford, ‘There is a Right to Life; is There a Right to Die?’ (2012) New Zealand Medical Student Journal} 16.

94_{P Tiensuu, ‘Whose Right to What Life? Assisted Suicide and the Right to Life as a Fundamental Right’ (2015)} 15 HRLR 251, 264; WH Nielsen, ‘The Slippery Slope Argument Against Voluntary Euthanasia’ (1987) 17 Journal of Applied Philosophy 12, 14.

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For the first argument, palliative care is one of the life shortening medical treatments. All cases of involuntary euthanasia are actually cases of palliative care, where the patient’s life may be shortened by the administration of pain relief. Unlike assisted suicide, pain relief and refusal of treatment are responsible for a substantial proportion of all deaths and unlike assisted suicide, for them ‘involvement of the patient [in the decision-making] is not effectively guaranteed’.95 It could be argued that the argument is less about autonomy and self-determination, and perhaps more about (in)humane treatment. The bottom of the slope is the intentional killing of patients who have not given their explicit consent. If we permit doctors to assist patients who want to die, soon they will be ‘assisting’ those who do not want to die.96 In order to avoid this, assisted suicide should not be allowed, is the argument. In present cases of assisted suicide, there is no lack of consent, since these cases are well reported and controlled. To the contrary, it is in fact palliative care as pain relieving end-of-life treatment where people get killed without request, and thus consent.97

This first slippery slope argument mentioned is relevant. It is, however, difficult too prove and might even be false. The legalization of assisted suicide and voluntary euthanasia might actually lower the risk of cases of involuntary euthanasia, since control is at its best compared to control in palliative care.98

For the second slippery slope argument, if we defend the principles of benefit and autonomy for the patient, it should not make a difference whether the suffering is of terminal nature. Some argue that it is likely that cases of assisted suicide for terminally ill patients will give way in cases of non-terminally ill patients, since autonomy and pain relief seem to work equally forcefully on their behalf.99 The quality of one’s life could be so bad that continuing life is not at their best interests. To suggest that it can only be physical conditions for ending life is to underestimate the agony of mental conditions. Mental suffering is not always of irrational nature.100

95_{J Griffiths, ‘Legal Knowledge and the Social Working of Law: The Case of Euthanasia’ in H van Schooten} (ed.), Semiotics and Legislation: Jurisprudential, Institutional and Sociological Perspectives (Deborah Charles Publication 1999) 90.

96_{RG Frey, ‘The Fear of a Slippery Slope’ in G Dworkin, RG Frey and S Bok (eds) Euthanasia and}

Physician-Assisted Suicide: For and Against (1st edn, CUP 1998) 59; JI Fleming, ‘Euthanasia: Human Rights and

Inalienability’ (1996) 63 The Linacre Quarterly 44, 52; WH Nielsen (n 94) 18. 97_{P Tiensuu (n 94) 264-265.}

98_{Ibid 265.}

99_{RG Frey (n 96) 53.} 100_{D Benatar (n 87) 304.}

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This second slippery slope argument could perhaps be proven, however, the bottom of this slope might actually be considered to be the preferred outcome. Some might argue that it is indeed wished for that eventually people who are not terminally ill, but just wish to stop living, can also apply for assisted suicide or voluntary euthanasia. It is, however, only a slippery slope if what is now permitted should not have been permitted, while this might acutally be a valuable development.101 The mere possibility that the consequences of a slippery slope might occur, is not enough to constitute such evidence as required.102

5.3 Compromise of voluntariness arguments

Opponents of legalizing the practices of voluntary euthanasia and assisted suicide might argue that these practices ought to be illegal, because the voluntariness of the consent to die of the patient concerned is almost always debatable.

One variation of such an argument alleges that when people want to end their lives on the basis of a horrible condition, that decision is not completely voluntary, since the people’s thinking is clouded by their pain and suffering. These people are ‘compelled’ by their condition to make this fatal choice, it cannot be considered as a rational decision to end life. A distinction must be made between the assessments of voluntariness or competence and the decision to end life (or to remain living), thereby recognition must be given to the fact that a decision cannot be claimed to be insufficiently voluntary just because it is a decision to end life.103

The objection made to legalizing euthanasia and assisted suicide fails to provide a tolerable reason to prohibit these practices. The legalization of euthanasia and assisted suicide allows those who want to make use of the practices to do so, but the people not wanting it can simply refrain from the option. Any concerns of the possible dangers of legalizing euthanasia and assisted-suicide need to be balanced against the serious and assured suffering of prohibiting it. People who want to end their lives are, in that case, condemned to continue living, while suffering unbearable and immense harm.104

101_{D Benatar (n 87) 303; P Tiensuu (n 94) 265.} 102_{RG Frey (n 96) 63.}

103_{D Benatar (n 87) 306.} 104_{Ibid 307-308.}

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5.4 The probability of a legal right to die in international law

There is no right to die codified in any international human right instrument. There are, however, several relevant and informing rights of a more general nature that can be found in these instruments. Most important is potentially the right of each person to human dignity, that includes living with dignity, which could imply to live the end of that life, to die, with dignity as well.105 Another argument that seems to support a right to determine the circumstances of one’s own death is that the denial of a right to die would be unfair and cruel. No one should be obliged to endure pain and unbearable suffering. The denial of a right to die would imply a ‘duty to live’, no matter what the horrible condition of that life might be.106 None of the international human rights instruments address euthanasia directly either. This does not mean, however, that euthanasia would be inconsistent with international human rights law. Approaching international human rights law as a process, rather than a set of rules, could solve the problem of lacunae. If such perspective is used, it might make it possible to focus on relevant international human rights that could provide a consensual basis for a more open international debate on euthanasia.107_{Once again, codification of a separate right to die}

might not be necessary, if international human rights are interpreted in the most preferable fashion.

5.5 The UNESCO Universal Declaration on Bioethics and Human Rights

For the controversial issue of euthanasia and assisted suicide there is the need for regulation and legislation. Bioethics is a multidisciplinary field; it developed into a scientific discipline in medical, legal and science area. Reaching consensus in this field is particularly important since it is a relatively new area with many controversies.108 To regulate the field of bioethics and human rights, the UNESCO Universal Declaration on Bioethics and Human Rights was adopted by UNESCO’s General Conference in 2005.109 One of the aims of the UNESCO Declaration is to ‘promote respect for human dignity and protect human rights, by ensuring respect for the life of the human beings, and fundamental freedoms, consistent with international human rights law’.110 Common to Article 3 of the Bioethics Declaration, which states that the ‘interests and welfare of the individual should have priority over the sole

105_{JJ Paust (n 86) 475.} 106_{W Gray (n 9) 22.}

107_{B van den Akker and others (n 74) 291 and 294.}

108_{HAMJ ten Have and MS Jean, ‘Introduction’ in HAMJ ten Have and MS Jean (eds), The UNESCO Universal}

Declaration on Bioethics and Human Rights: Background, principles and application (UNESCO, 2009) 20.

109_{UNESCO Universal Declaration on Bioethics and Human Rights (adopted 19 October 2005).} 110_{UNESCO Declaration (n 109), Article 2c.}

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interest of science or society’.111 The personal autonomy of persons to make decisions has to be respected.112 The interacting considerations of universal human rights and fundamental freedoms as well as respect for human dignity are the foundation for the principles of the UNESCO Declaration.113

The UNESCO Declaration is relevant in this research since it sets out an international regulation on the human rights with regard to bioethics. The right to die, in the form of euthanasia and assisted suicide, is one of the most controversial issues within this regard. The Declaration places paramount importance to the intrinsic human dignity of every human being, which is extremely relevant for the debate regarding the right to die.114

5.6 The Council of Europe

The Member States of the Council of Europe (CoE) have been able to reach some form of consensus regarding the end of life care. In 1999 the Parliamentary Assembly of the CoE adopted Recommendation 1418 on the Protection of the human rights and dignity of the terminally ill and the dying.115 The first paragraph reads ‘the vocation of the Council of Europe is to protect the dignity of all human beings and the rights which stem therefrom’.116 On this statement consensus is possible despite disagreement on the subject of euthanasia and assisted suicide. The notion of human dignity is invoked by both sides of the debate; opponents and proponents of the practice of euthanasia use this as a strong argument for their case.117_{The conclusions of the Recommendation, however, are resolute. The Committee of}

Ministers is asked to encourage the member States of the CoE ‘to respect and protect the dignity of the terminally ill or dying in all respects’ by ‘upholding the prohibition against intentionally taking of life of terminally ill or dying persons, while recognizing that a terminally ill or dying person’s wish to die never constitutes a legal claim to die at the hand of another person’.118 Later, the Committee of Ministers, in a reply to Recommendation 1418 made the statement that the member States had varying approaches to the issues of euthanasia

111_{UNESCO Declaration (n 109) Article 3 §2.} 112_{UNESCO Declaration (n 109) Article 5.} 113_{UNESCO Declaration (n 109) preamble.}

114_{R Andorno, ‘Article 3: Human Dignity and Human Rights’ in HAMJ ten Have and MS Jean (eds) The}

UNESCO Universal Declaration of Bioethics and Human Rights (UNESCO, 2009) 94.

115_{Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe on the Protection of} the human rights and dignity of the terminally ill and the dying (adopted 25 June 1999, 24th sitting)

116_{Recommendation 1418 (n 115) §1.}

117_{Euthanasia, Volume II: National and European Perspectives (Ethical Eye) (Council of Europe, 2004) 123.} 118_{Recommendation 1418 (n 115) §9.3.2; Euthanasia (n 117) 123.}

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and end of life care.119 In that time, the ECtHR had hardly ever dealt with cases regarding euthanasia, until Pretty v UK was decided upon. The question asked here was whether Article 2 of the Convention involved the negative aspect of the right to life as well. The Court ruled that Article 2 could not be interpreted as conferring the opposite right, a right to die.120 The Court did not, however, rule on the question whether the practice of euthanasia is compatible with the Convention.121 Recommendation 1418 carefully avoids using the term ‘euthanasia’, although the notion and the problems are constantly present in the background.122

In 2012, the Parliamentary Assembly adopted Resolution 1859 for Protecting human rights and dignity by taking into account previously expressed wishes of patients.123 Through this, there is consensus that from Article 8 of the Convention flow the principles of personal autonomy and consent. These principles have also been included in the Convention on Human Rights and Biomedicine (Oviedo Convention), which legally binds the majority of the member States.124 In the fifth paragraph it states that the ‘resolution is not intended to deal with the issues of euthanasia and assisted suicide. Euthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged own benefit, must always be prohibited’.125_{This is a resolute statement made by the Parliamentary}

Assembly regarding euthanasia and assisted-suicide. Both the act and omission of intentionally killing a person for his or her own interests is not permitted.

5.7 The European Court of Human Rights on the right to die

Different claims have been brought before the European Court of Human Rights (ECtHR or the Court) regarding the possible right to die, as the opposite of the right to life or as a derivative from other human rights. Below, the different developments regarding the possible right to die, as claimed in the cases brought before the Court, will be discussed.

119_{790th Meeting of the Minister’s Deputies of the Council of Europe (26 March 2002) §2.} 120_{Pretty v UK App no 2346/02 (ECtHR, 29 July 2002) §39-40.}

121_{Euthanasia (n 117) 125.} 122_{Euthanasia (n 117) 126.}

123_{Resolution 1859 (2012) of the Parliamentary Assembly of the Council of Europe for Protecting human rights} and dignity by taking into account previously expressed wishes of patients (adopted 25 January 2012, 6th sitting).

124_{Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the} Application of Biology and Medicine: Convention on Human Rights and Biomedicine [1997] ETS No 164 . 125_{Resolution 1859 (n 123) §5.}

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5.7.1 Complaints brought before the Court based on Article 2 of the Convention

5.7.1.1 Pretty v UK (2002)

One of the first cases regarding the right to die brought before the Court was Pretty v UK.126 In Pretty v UK, Mrs. Pretty (the applicant) complained that fundamental rights under the Convention had been violated by the refusal of domestic authorities not to prosecute her husband if he were to assist her to end her life.127 The main issue disputed in this case was whether the right to life, as guaranteed in Article 2 ECHR, also included the converse aspect as well: the right to die.128 In earlier case law, The Court has deemed Article 2 one of the most fundamental provisions of the Convention.129 Generally, the Court held that Article 2 obliges States to not only refrain from intentional and unlawful taking of life, but to also take appropriate steps to safeguard the lives of those within its jurisdiction, which constitutes a positive obligation for the State.130 The Court was, however, not persuaded that the right to life as guaranteed in Article 2 could be interpreted as involving a negative aspect.131 The Court interpreted other provisions as involving the negative aspect, however, it stated that Article 2 was formulated in different terms. It is ‘unconcerned with the quality of life or what a person chooses to do with his or her life’.132 To the extent that these aspects are recognized as so fundamental to the human condition that protection is required from State interference, these aspects may be reflected in other human rights.133_{The Court was very explicit}

concerning their interpretation of the right to life. As it firmly stated: ‘Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense on conferring on an individual the entitlement to choose death rather than life’.134 The Court was confirmed in its view by Recommendation 1418 of the Parliamentary Assembly of the Council of Europe.135 The Court found no violation of Article 2 of the Convention.136

126_{Pretty v UK (n 120).} 127_{Ibid §32.}

128_{P Merkouris, ‘Assisted Suicide in the Jurisprudence of the European Court of Human Rights: A Matter of} Life and Death’ in S. Negri (ed), Self-Determination, Dignity and End-of-Life Care: Regulating Advance

Directives in International and Compartive Perspective (Martinus Nijhoff 2011) 110-111; Pretty v UK (n 120)

§35.

129_{McCann and Others v UK (n 69) §146-147.} 130_{Pretty v UK (n 120) §38; Osman v UK (n 70) §115.} 131_{Pretty v UK (n 120) §39.} 132_Ibid. 133_Ibid. 134_Ibid. 135_{Recommendation 1418 (n 115) §9.} 136_{Pretty v UK (n 120) §42.}

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5.7.1.2 Lambert and others v France (2015)

The case of Lambert and others v France differed from earlier case law, since it was the first time that the applicants tried to act in the name and on behalf of a patient. This case concerned Vincent Lambert who was totally dependent and in a vegetative state.137 Both the parents of Lambert and his wife, separately, were not found to have standing based on Articles 2, 3 and 8 of the Convention. However, the Court decided to examine the substantive issues raised in the present case under Article 2 of the Convention, as if they were raised by the applicants on their own behalf.138 The Court considered that the applicants could rely on Article 2, in their capacity as close relatives to Vincent Lambert.139 The Court stressed the importance of a distinction between the intentional taking of life and ‘therapeutic abstention’, which is the withdrawing or withholding of treatment that has become unreasonable.140 Since the French legislation prohibits intentional taking of life but permits withdrawing or withholding life-sustaining treatments in specific circumstances, the Court considered that the present case did not involve the negative obligations of the State under Article 2. Therefore the applicant’s claims would only be examined from the standpoint of the positive obligations of the State.141

The Court emphasized that the issue in this case was not that of euthanasia, but rather of withdrawal of life-sustaining treatment.142 The Court thus did not see ‘therapeutic abstention’ as being passive euthanasia, which is quite interesting, as many do regard this to constitute passive euthanasia.143 In Haas v Switzerland the Court claimed that the Convention had to be read as a whole, where it was appropriate to refer to Article 2 in the context of examining a possible violation of Article 8. 144 In Lambert and others v France, the Court considered the converse should apply as well. When examining a possible violation of Article 2, a reference could be made to Article 8 of the Convention.145

In the context of the State’s positive obligations, when addressing scientific, legal and ethical issues concerning the end of life, and in the absence of consensus among the member States,

137_{Lambert and others v France App no 46043/14 (ECtHR, 5 June 2015) §11-12.} 138_{Ibid §105 and 112.}

139_{Ibid §115.}

140_{Ibid §119 and 124.} 141_{Ibid §124.}

142_{Ibid §141.}

143_{E Garrard and S Wilkinson (n 7); C Focarelli (n 2).} 144_{Haas v Switzerland (n 84) §54.}

The right to die in international law : a dead end or an innovative approach to human rights?