CYIL vol. 11 (2020)

CYIL 11 (2020) THE BEST INTERESTS OF THE CHILD IN MEDICAL RESEARCH of those within its jurisdiction” 15 . The inaccessibility of health care could represent a violation of the right to life (Article 2 of the European Convention on Human Rights) 16 or the right to respect for private and family life (Article 8 therein) 17 . However, a substantial violation of the said rights based on the lack of access to health care has only been found by the ECtHR very rarely and in extreme cases. 18 It would be – to say the least – very problematic to deduce the obligation of the state to promote medical research from the European Convention on Human Rights 19 . However, the negative impacts the lack of research would have on the development and safety of paediatric medicine cannot be overlooked. Children need to participate in medical research not in spite of, but because of their vulnerability. 2. The protection of the best interests Article 3 of the Convention on the Rights of the Child sets one of the key concepts of international children’s rights protection: the best interests of the child. It is explicitly stated in this convention that the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies 20 . The State Parties to the Convention on the Rights of the Child are obliged to ensure the child such protection and care as is necessary for her or his well-being (taking into account the rights and duties of her or his parents or other individuals legally responsible for her or him). To this end, the State Parties must take all appropriate legislative and administrative measures. 21 They have to ensure that the institutions, services, and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities 22 . In the Czech Republic, the Convention on Human Rights and Biomedicine is a crucial international law document for the protection of children in medical research. In Article 2, the Convention on Human Rights and Biomedicine sets a fundamental principle that the interests and welfare of the human being shall prevail over the sole interest of society and science. The Explanatory Report further stresses that “the first duty of doctors or other health care professionals is to their patient and it is also part of the professional standard (Article 4) to act in the interest of the patient”. 23 On the basis of the Convention on Human Rights and Biomedicine regulation, we may define three fundamental rules or principles 24 aiming at the protection of the minor 15 See ECtHR, L. C. B. v. the United Kingdom, app. no. 23413/94, Chamber, Judgment of 9 June 1998, para. 36. 16 See for example ECtHR, Nitecki v. Poland, app. no. 65653/01, First Section, Decision of 21 March 2002, or ECtHR, Pentiacova and Others v. Moldova, app. no. 14462/03, Fourth Section, Decision of 4 January 2005. 17 See for example ECthR, Von Kück v. Germany, app. no. 35968/97, Third Section, Judgment of 12 June 2003. 18 See ŠUSTEK, Petr. Non-Compliant Patients and the Restrictions of their Exercise of Right to Health. In ŠTURMA, Pavel, LIPOVSKÝ, Milan (eds.). 70 th Anniversary of the Universal Declaration of Human Rights. rw&w Science & New Media Passau-Berlin-Prague, Waldkirchen 2019, pp. 136-138. 19 See ŠOLC, Martin. Právo, etika a kmenové buňky [Law, Ethics, and Stem Cells]. Wolters Kluwer, Praha 2018, p. 95. 20 See Article 3 (1) of the Convention on the Rights of the Child. 21 See Article 3 (2) of the Convention on the Rights of the Child. 22 See Article 3 (3) of the Convention on the Rights of the Child. 23 Explanatory Report to the Convention on Human Rights and Biomedicine, to Article 6, point 48. 24 We acknowledge that some authors draw a distinction between principles and rules, the former being more general and comprehensive, and the latter being more specific and applicable as precise guides in each circumstance. Nevertheless, the line between the two types of norms is usually blur. We primarily use the term principles because

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