CYIL 2014

PAVEL BUREŠ CYIL 5 ȍ2014Ȏ norms of international law and in some way by obligations previously subscribed to. This is the case of the European Convention for the member States of the Council of Europe. By signing the Convention or acceding to it, they have agreed they will secure to everyone within their jurisdiction rights and freedoms defined in the Convention for everyone and will respect and enforce judgments of the Court as an international judiciary body. In the last several years some authors 36 have challenged the methods of interpretation used by the Court, assessing them as too active. This is also the case of two judgments recently published by the ECtHR and which are not definitive. On 26 June 2014 the Court delivered judgments in the cases Mennesson and Others v. France 37 and Labassee v. France. 38 Both cases relate to reproductive rights and especially the issue of surrogacy maternity. The facts in both cases are very similar: the applicants, French nationals who had recourse to surrogacy treatment in the USA, faced a refusal by French nationalities to grant legal recognition of a parent-child relationship that had been legally established previously in the USA. The applicants were claiming violation of their private and family life and the violation of private life with respect to a child/children. In its deep reasoning of the issue of interference to private and family life the Court uses a balancing test. It concludes that there was no violation with respect to the private and family life of the applicants. The applicants can freely make profit of their private and family life; their parental authority and rights were not infringed by the refusal of French authorities to grant the recognition of the parent-child relationship. On the other hand, as to the respect of the private life of the child born in the USA by surrogacy treatment, the ECtHR found a violation. The Court claims that one of the essential aspects of identity, which relates to private family life, is filiation. 39 Children born by surrogacy are in a juridical incertitude which relates to, e.g. their nationality or successoral rights. 40 The Court accepts that France, by its legislation, wants to discourage its nationals from taking recourse to surrogacy treatment; however it is not more imaginable if the refusal to grant filiation affects the superior interest of children. 41 From the sole point of view of children’s best interest this argumentation can be accepted. We argue, however, that the Court misses the overall reasoning to human rights protection and to the whole system of the creation of legal norms. There is a well-known principle in international law – ex iniuria ius non oritur . The question is whether this principle also applies to human rights protection. It is clear that in 36 Touzé, S., Les techniques interprétatives des organes de protection des droits de l’homme. Revue générale de droit international public , t. 115, n° 2 (2011), pp. 517-540. Or IRVINE of LAIRG, Lord. Activism and restraint, human rights and the interpretative process. European human rights law review, Issue 4 (1999), pp. 350-372. 37 Case Mennesson and Others v. France, no 65192/11, 26 June 2014. 38 Case Labassee v. France, no 65941/11, 26 June 2014. 39 Case Mennesson and Others v. France, § 96.

40 Ibid ., § 98. 41 Ibid ., § 99.

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