CYIL vol. 9 (2018)

PAVEL CABAN CYIL 9 ȍ2018Ȏ and objective category of human “life” to rather relative and subjective category of “life with dignity”. III. Relevance of article 6 of the ICCPR for issues of abortion and euthanasia The HRC included its conclusions concerning the abortion and euthanasia in the draft General Comment to Article 6 of the ICCPR, on the right to life. However, the question is whether it is appropriate to deal with these issues in the context of the right to life. For example, the European Court of Human Rights and the European Commission of Human Rights as its predecessor, in their jurisprudence, noted (with regard to euthanasia) that Article 2 (on the right to life) of the European Convention on Human Rights and Fundamental Freedoms “… is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life …”, 9 and that (with respect to the questions concerning abortion) “legal regulation of abortion is an intervention in private life [of a pregnant woman]”, 10 and considered both of these issues mainly in the context of Article 8 of the Convention (on the right to respect for private and family life). 11 Thus, it is possible that, as regards abortion, article 6 of the ICCPR is directly relevant only when pregnant mother’s life is at stake and to the extent the unborn child’s rights and interests are covered by this Article. Similarly, in case of euthanasia, in accordance with this interrpetation, Article 6 should cover only opposite situations than those mentioned by the HRC, namely protection of “afflicted” individuals against involuntary deprivation of their lives. 12 Are the rights and interests of the unborn child also protected? As regards abortion, interestingly, the draft General Comment does not mention that Article 6 protects not only the rights and interests of pregnant women, but that it is relevant also for the protection of the rights and interests of the unborn children (foetuses). In this regard, it is suggested that the HRC‘s draft General Comment does not properly reflect the interpretation of this and other relevant provisions of the ICCPR and other 9 European Court of Human Rights, Pretty v. The United Kingdom, Judgment, 29 July 2002, para. 39. The Court added that “[t]o the extent that these aspects are recognized as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guranteed by other Articles of the Convention, or in other international human rights instruments …” (ibid., para. 39), and that it “is not prepared to exclude that this [prevention by law of exercising choice to avoid undignified and distressing end to life] constitutes an interference with … right to respect for private life as guaranteed under Article 8 § 1 of the Convention”; ibid., para. 67). 10 European Commission of Human Rights, Brüggemann and Scheuten v. Germany, Application No. 6959/75, Decision of 19 May 1976 on the admissibility of the application, para. 5 (“The Law”). See further ZAMPAS, Christina, GHER, Jaime M., Abortion as a Human Right – International and Regional Standards, Human Rights Law Review, Volume 8 (2008), Issue 2, pp. 276 et seq. 11 Article 8, para. 1: “Everyone has the right to respect for his private and family life, his home and his correspondence.”. The ICCPR contains similar provision in Article 17, para. 1: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”. 12 For example, the ECLJ noted in this regard that “[i]t is only if the life of the mother were truly endangered an that only abortion could save her that a state could be condemned under article 2 of the Convention for not allowing the recourse to it”; ECLJ, The regime of abortion in the normative framework of the Council of Europe, Synthesis, 26 December 2016, p. 4; available at http://media.aclj.org/pdf/Abortion-Norms-Council-of- Europe.pdf (visited on 3 June 2018). IV.

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