The nature of the Convention right to enabled suicide

As was discussed in 2.2.4, ‘exercise’ ‘waiver’ and ‘claiming’ are actions by a person who possesses a Convention right which affect the respondent’s duty to secure to that person the benefit of their right. It is necessary to determine that the right to enabled suicide involves waiver over the benefit of continued life, which is compatible with the Gewirthian conception. The concept of rights-waiver is associated with the legal and moral theory that the existence of a ‘right’ to some benefit centrally requires control over that benefit, which is termed the will-theory of rights (see 2.2.4). The will-theory of rights applied to the ECHR reflects a conception of the ECHR/UDHR’s moral foundation as arising from agency or self-determination (eg Letsas 2007, 13; see further 2.2). It was well established before Pretty that a claimant’s refusal of the benefit of Convention rights that are fundamental to his wellbeing, including the benefits of vital assistance/healthcare, must be respected.⁶⁴ However, when Pretty raised the novel argument that her Article 2 right to life included a right to die,⁶⁵ the ECtHR disagreed.⁶⁶ The ECtHR’s failure to accept her argument is problematic in terms of the Gewirthian conception of the right to enabled suicide set out in 2.6, which centrally relies on a conception of the right to enabled suicide derived from the capacity for a rights-holder to waive the ‘benefit’ of the continuation of his life.

64 Herczegfalvy v Austria (1993) 15 EHRR 437 paras 83, 86; Jehova’s Witnesses of Moscow and Others v Russia (2010) App no 302/02 (judgment of 10^thJune 2010) para 136. The Convention on Human Rights and Biomedicine (CHRB) created by the Council of Europe, which also governs the ECHR, is referred to by the ECtHR in the determination of applications raising bioethical issues; of particular relevance are those concerning consent (MAK and RK v UK (App no 45901/05 & 40146/06) judgment of 23^rdMarch 2010). The CHRB requires that consent is sought from a relevant party in relation to individuals who cannot give consent

In Pretty it was found that the right to life in Article 2 does not extend to a ‘negative… right to die’.⁶⁷ This finding appears to be a decisive judgment by the ECtHR that the Convention right to life is not a right on the will-theory, and that a Gewirthian approach to the Convention right to enabled suicide is therefore ruled out. It must be conceded that the Court’s statement can plausibly be interpreted as a rejection of rights-waiver at least as regards the Convention right to life. In particular the ECtHR implicitly rejected Pretty’s argument, raised before the House of Lords,⁶⁸that Convention rights were generally waivable by analogy with other Convention rights that did ‘imply their negative’ such as the right to marry (Article 12).⁶⁹Despite this, it is argued that Pretty does not rule out an interpretation of the Convention right to life that is compatible with the will-theory.

It is possible that the ECtHR’s reference to the ‘negative’ of the Convention right to life is not equivalent to giving up the benefit of that right, as occurs with rights-waiver (see 2.2.4).

The ECtHR could be taken to be rejecting the similarity between the nature of the benefit of the right to life and the right to marry in the respective Articles. In the case of the right to marry the benefit that is expressed in Article 12 is straightforwardly the status of being married, but it is not necessarily the case that the benefit claimed in Article 2 is the status of

‘being alive’. The benefit of a Convention right to life in Article 2 is best described as a negative-interest in ‘intentional killing’. It is plausible, as the ECtHR later implied in Haas,⁷⁰ that the interest in Article 2 does not encompass autonomous suicide⁷¹ so that the negative interest in Article 2 is limited to ‘intentional unwanted killing’ (see also Beyleveld and Brownsword 2007, 273ff.).

If it is possible to interpret the ECtHR’s statements in regard to Article 2 in Pretty as compatible (or at least not necessarily incompatible) with waiver of the benefit of the right to life, then it is necessary to consider the way in which this benefit could be waived. It is argued that waiver could be exercised under the Article that is most expressive of the

67Ibid paras 39-40. This could mean the intentional destruction of life generally, or, specifically, the intentional unwilled destruction of life (Beyleveld and Brownsword 2007, 277).

68Referred to before the ECtHR in Pretty UK (2002) 35 EHRR 1 at para 14; Pretty v DPP [2001] UKHL 61 [6].

69 Analogously with the Article 11 right to freedom of association which implies a right not to join an organisation Cheall v United Kingdom (1985) 42 DR 178, at 185.

70Haas v Switzerland (2011) 53 EHRR 33.

71At para 34.

principle of self-determination, which the Court accepted to be Article 8 (Beyleveld 2011, 13).⁷² The protection of human life also runs throughout the Convention Articles as a whole,⁷³ so it is not implausible that aspects of the exercise of such a fundamental right could also find expression under Article 8. This reasoning is unorthodox,⁷⁴ but the mere fact that Article 8 sets out ‘private life’ as a Convention interest, while Article 2 sets out ‘life’ does not necessarily mean that claims under Article 8 are exclusively directed towards private life as a separate Convention interest to ‘life’. The failure of the ECtHR in Pretty to state that the principle of self-determination finds its expression under Article 2(1) is not, therefore, equivalent to a finding that the principle of self-determination is irrelevant to the Convention right to life.⁷⁵ On this interpretation ‘life’ as the benefit of a Convention right to life is waivable under Article 8.

A Gewirthian interpretation of the nature of the Convention right to life remains possible after Pretty (see also Beyleveld 2011, 12-13) and this interpretation is further strengthened by the findings in Haas,⁷⁶Koch⁷⁷and Gross⁷⁸(Second Section) that self-determination is central to a valid claim to a Convention right to enabled suicide. In terms of the hypothetical claims to enabled suicide it is therefore possible that S claiming a Convention interest in enabled suicide may do so by exercising his ability to waive his right to life in the “take my life,”

“help me die,” “end my suffering” or “let me die” situations (1.3.3). This interpretation is strengthened by the fact that the statements casting doubt on the will-theory in Pretty were likely to be influenced by factors unrelated to theories of rights. One such factor is arguably that the judgment would have been viewed as creating a ‘right to die’ under Article 2, which would have represented a recognition of a strong commitment to a controversial and emergent right (eg Lewis 2007, 53-54). Furthermore, as was discussed above, Article 2 does

72Pretty UK (2002) 35 EHRR 1 para 35.

73Ibid.

74The conceptualisation of this conflict is currently conceived of in terms of the ambit of the Convention rights;

for example, Fenwick argues in the context of Article 5(1) that the Court avoids conflict by narrowing the ambit of the interests expressed in ECHR Articles (Fenwick 2010).

75The ECtHR was probably concerned that had it upheld Pretty’s claim then the lives of vulnerable individuals would have been endangered, and Article 2(1) contains no express limitations to balance this interest in safeguarding life against the right to enabled suicide, as opposed to the limitations on the Article 8(1) right in

not explicitly provide that the interest in life is to be secured in a way that the State may permissibly limit by reference to the ‘rights of others’, unlike Article 8 (see 3.2.3).

3.6 The UK government’s responsibility to secure the Convention right to enabled