CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ REFLECTIONS OF ETHICAL DEBATE IN THE INTERNATIONAL LAW REGULATION … The non-binding Declaration on Human Cloning from 2005 confirms the prohibition of all forms of reproductive cloning of human beings as contrary to human dignity and protection of life. However, it also calls on the states to ensure the adequate protection of human life in the context of application of biomedicine and to prohibit genetic modifications which would be incompatible with human dignity. The crucial terms such as cloning , human dignity , or human life are not defined, which leaves the states a wide space for the regulation of therapeutic cloning. The Council of Europe undoubtedly plays the crucial role in the human rights protection in the European area. 40 The very basic European catalogue of human rights, the Convention for the Protection of Human Rights and Fundamental Freedoms ( the European Convention on Human Rights , hereinafter “ Convention ”) from 1950, contains several fundamental rights which are crucial for the question of the legality of stem cell research. In this context, the most important is the right to life embodied in Article 2, according to which “[e]veryone’s right to life shall be protected by law” . 41 The European Court of Human Rights has also frequently addressed the problem of the moral status of embryos and foetuses in relation to the right to respect for private and family life under Article 8. 42 With regard to the right to life, there arise two basic questions. First, what is the actual content of the term “everyone” , i.e. whether a human embryo or foetus can be considered a subject of human right. Second, whether the states’ obligation to protect the right to life establishes only negative duties, or also positive ones, and if the latter is true, what is the nature and scope of these positive duties. In order to interpret the content of both rights, we need to examine the European Court of Human Rights (hereinafter “ ECtHR ”) case-law . It is important to note that the European Court of Human Rights can be considered to be the key element to effective human rights protection in the frame of the Council of Europe system. We can remind the reader of the well-known fact that the ECtHR decides on the basis of complaints submitted by the States Parties or individuals against the States Parties. It should also be noted that until 1998, certain functions of the ECtHR were performed by the European Commission of Human Rights (hereinafter “Commission”). 43 40 The Council of Europe documents strongly influence also the regulation of stem cell research in the Czech Republic. Special regulation of the matter is to be found in the Act No. 227/2006 Coll., on research on human embryonic stem cells and related activities. For a summary of this regulation and its comparison with national legislation of other European countries, see ŠOLC, Martin, Právní aspekty výzkumu lidských kmenových buněk. In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.), Zdravotnické právo. Wolters Kluwer, Praha 2016, p. 734-7744. 41 While most States Parties have ratified the Protocol No. 13 which abolishes the death penalty in all circumstances, a deprivation of life can be lawful if the conditions set in Article 2 (2) are met, that is if the use of lethal force is absolutely necessary “in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, or in action lawfully taken for the purpose of quelling a riot or insurrection.” 42 The exercise of this right can be limited only in accordance with the law and in a case of “necessity in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” . 43 The European Commission of Human Rights used to decide the admissibility of complaints, oversee friendship 4. The Council of Europe system of human rights protection: European Convention on Human Rights and the European Court of Human Rights case-law

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