Moller, The Right To Life Between Absolute and Proportional Protection

The Right to Life Between Absolute and Proportional Protection Kai Méller LSE Law, Society and Economy Working Papers 13/2010 London School of Economics and Political Science Law Department ‘This papex can be downloaded without chuige from LSE Law, Sovsty and Economy Wotking Papers at worl ac uk/collections/law/ups/ups htm and the Social Sciences Reseach [Netwock electronic libeaty at http//senicom/abstract=1620377 © Kai Mollex. Users may download and/or puint one copy to faiitate their private study ox for nomcommscial research, Users aay not engage in fates distribution ofthis materia of ‘use i for any proftemiking activites or say tes form of eommnescial gunThe Right to Life Between Absolute and Proportional Protection Kai Méller* Abstmact: One of the puszles of Inman and constitutional sights law is whetnes there ate any rights which ase absolute, The question is important not only for pesctiedl puuposes but also for the theory of Inman and constitutional rights: an absolute right presents a depashuce from ‘whut is now the “defwule in comtititional and Inuman sights law around the world, namely the ptopottionality approach sccordang to which an interference with a sight i justified iit veeves 1 legitiaate goal and is proportionate to that goal. This paper tries to shed some light om the issue by focussing on the sight to Life. It proceeds by fist presenting an account of the leading case in this area, namely the judgment of the Geiman Fedecal Constitutional Covkt in the Aviation Secuxity Act case, whese the Cout held thit shooting down an sisplane which was ely to be wed as a texzosist weapon was a violation of the sight to life in conjunction with tHe Inman dignity of the innocent passengers sbossd It then offecs a few thoughts on the Couts seasoning, specifieally with cegted to what it has to say about the idea of absolute sights. Having concluded that the judgment offers lite help an dhuminating this problem, it piesents some approaches to absolute sights from mosal phiosophy and applies them to Inuoutn and constifitional sights law, Tle conclusion is Hut the sight to life will under cestain ciscwmstances be absolbte or near-absolute, but that these ciceuantances ocevs levs feequently Han is sometions assumed Lectuer in Human Right Law; Law Depament, London School of Economics and Poiteal Science Emad kanoles@lee sek, Endler versions of the paper vase paavented at a undehop on “Shooting to A sn Ofian, Span, in the sumaner of 2009 and at the LSE staf aesenech semanar sn exely 2010.1 would 1a to thank all participants for thei valuable feedback,e 13/2010 INTRODUCTION One of the puzzles of human and constitutional sights lawis whether there are any sights which are absolute, ie sights which must never be intesfered vith, Some of the candidates which come to mind are the sight not to be tortured! and the sight to life. The question of absolute sights touches upon issues which have become practically highly selevant especially since the tessosist attacks of 11 September 2001 and the subsequent changes in the attitudes of some states towards torture and killings, and this alone would mesit a close analysis. But furthesmore, the issue is important for the theosy of human and constitutional sights. Few ideas have spread as quickly and pervaded an entire atea of law as thoxoughly as the propostionality approach in constitutional sights law around the woud Robett Alexy’s model of nights as principles which have to be balanced against conflicting principles is one of the most influential theoretical accounts of this development? While I am csitical of some aspects of Alexy’s model I do accept and subscsibe to the desisability of balancing in constitutional sights law. But this does of couse not imply that alf constitutional sights ate open to balancing in all situations, rather, it may tum out that some ate and some ate not, or some ate in most but not all situations. But then we need a theosy which distinguishes absolute from non-abschite sights. ‘This paper will try to shed some light on this question by focussing on the sight to life. It will proceed by fisst presenting an account of the leading case in this area, namely the judgment of the Geman Federal Constitutional Coust (FCO) in the Aviation Secusity Act case, where the Coust held that shooting dowm an aizplane which was likely to be used as a tessouist weapon was a violation of the sight to life in conjunction with the human dignity of the innocent passengess aboard I vall then offer a few thoughts on the Coutt’s reasoning, specifically with regard to what it has to say about the idea of absclute sights. Having concluded that the judgment offers little help in dluminating this problem, I wall present some approaches to absolute sights from moral philosophy and apply them to human and constitutional sights law My conclusion will be that the ight to life vill under cestain ciscumstances be abschite or nearabsclute, but that these circumstances wall be rarer than sometimes thought | of Article 3 of the Encopean Convention on Hoan Right. OR Alen, Thory of Constnovonal Rights (lian Rivers, texts, Oxford: OUP, 2002) See iy Balasesng and the Sunetae of Continsioual Rights’ 2007) 5 LatmatonalJeumal of Cnsnrnal Lan 453

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