MEETING TWO
THE RIGHT TO LIFE, THE PROHIBITION OF TORTURE AND THE
PROHIBITION OF
SLAVERY AND FORCED LABOUR
The right to life
Explain whether Article 2 secures a right to life for the unborn
Article 2 of the Convention is silent as to the temporal limitations of the right to
life and, in particular, doesn’t define ‘everyone’ whose ‘life’ is protected by the
Convention.
In X v UK the potential father whose girlfriend had an abortion could be seen as a
victim, but the term ‘everyone’ as used in the Convention couldn’t be applied
prenatally. So Article 2 of the Convention didn’t include the unborn.
In H v Norway the Court said that it is convinced that it’s neither desirable, nor
even possible as matters stand, to answer in the abstract the question whether
the unborn child is a person for the purpose of Article 2 of the Convention.
In Vo v France it wasn’t about defending a right to abortion. There was an
abortion, but that wasn’t what she wanted. Protects the right to life the foetus?
Because there was no consensus, the Court gave a large margin of appreciation.
The Court cannot say when life starts, so the question can’t really be answered.
The reason that the question in Vo v. France couldn’t be answered is that there’s
a lack of consensus across Europe on the nature and status of the foetus. This
means that you cannot really apply Article 2 of the Convention. The Court doesn’t
say it’s not at all applicable, but it doesn’t say that it doesn’t fall in the margin of
appreciation. Paragraph 85: ‘It considers it unnecessary …’. You can only use an
article that is applicable. The Court wanted to avoid that question. They
proceeded under the assumption that it could be applicable, so that they could
answer the more precise question. The national civil court told her that she could
get money for the damage that she had been done, but the woman wanted the
doctor ‘expelled’.
Explain whether Article 2 secures a right to choose to die.
Since the judgment in case Pretty v UK, it is clear that the right to life in Article 2
doesn’t include a right to die. This woman thought that a right to life included a
right to die. The Court observed that the consistent emphasis in its case-law had
been the obligation of the State to protect life. Article 2 was unconcerned with
issues to do with the quality of life or self-determination.
There are currently 4 Member State of the Council of Europe which allow medical
practitioners to prescribe lethal drugs, subject to specific safeguards, but there
have not, to date, been any admissible cases under Article 2 brought by
friends/relatives complaining about euthanasia carried out by a doctor or
authorized by a Contracting Party. This is also a subject where the Court probably
won’t say that euthanasia is wrong, but also won’t say that it’s okay. Also
because Article 2 gives States the obligation to protect life.
Case of Lambert and Others v France.
What is the difference between Pretty case and Lambert case? Pretty (actively)
said that she wanted to die and how she wanted it to take place. In those cases
you’re asking the State to make it possible that people can die. In Lambert case it
THE RIGHT TO LIFE, THE PROHIBITION OF TORTURE AND THE
PROHIBITION OF
SLAVERY AND FORCED LABOUR
The right to life
Explain whether Article 2 secures a right to life for the unborn
Article 2 of the Convention is silent as to the temporal limitations of the right to
life and, in particular, doesn’t define ‘everyone’ whose ‘life’ is protected by the
Convention.
In X v UK the potential father whose girlfriend had an abortion could be seen as a
victim, but the term ‘everyone’ as used in the Convention couldn’t be applied
prenatally. So Article 2 of the Convention didn’t include the unborn.
In H v Norway the Court said that it is convinced that it’s neither desirable, nor
even possible as matters stand, to answer in the abstract the question whether
the unborn child is a person for the purpose of Article 2 of the Convention.
In Vo v France it wasn’t about defending a right to abortion. There was an
abortion, but that wasn’t what she wanted. Protects the right to life the foetus?
Because there was no consensus, the Court gave a large margin of appreciation.
The Court cannot say when life starts, so the question can’t really be answered.
The reason that the question in Vo v. France couldn’t be answered is that there’s
a lack of consensus across Europe on the nature and status of the foetus. This
means that you cannot really apply Article 2 of the Convention. The Court doesn’t
say it’s not at all applicable, but it doesn’t say that it doesn’t fall in the margin of
appreciation. Paragraph 85: ‘It considers it unnecessary …’. You can only use an
article that is applicable. The Court wanted to avoid that question. They
proceeded under the assumption that it could be applicable, so that they could
answer the more precise question. The national civil court told her that she could
get money for the damage that she had been done, but the woman wanted the
doctor ‘expelled’.
Explain whether Article 2 secures a right to choose to die.
Since the judgment in case Pretty v UK, it is clear that the right to life in Article 2
doesn’t include a right to die. This woman thought that a right to life included a
right to die. The Court observed that the consistent emphasis in its case-law had
been the obligation of the State to protect life. Article 2 was unconcerned with
issues to do with the quality of life or self-determination.
There are currently 4 Member State of the Council of Europe which allow medical
practitioners to prescribe lethal drugs, subject to specific safeguards, but there
have not, to date, been any admissible cases under Article 2 brought by
friends/relatives complaining about euthanasia carried out by a doctor or
authorized by a Contracting Party. This is also a subject where the Court probably
won’t say that euthanasia is wrong, but also won’t say that it’s okay. Also
because Article 2 gives States the obligation to protect life.
Case of Lambert and Others v France.
What is the difference between Pretty case and Lambert case? Pretty (actively)
said that she wanted to die and how she wanted it to take place. In those cases
you’re asking the State to make it possible that people can die. In Lambert case it
