CYIL 2015

PAVEL BUREŠ CYIL 6 ȍ2015Ȏ of the human person in general. One has to search what is still human 58 in assessing procreative rights. The role of human rights protection is definitely not to ensure the happiness of particular human beings but the humanity of all human beings. Even though this characteristic of human rights protection is understood rather in the situation of massive or flagrant violations, 59 it is a very natural element of human rights. As previously stipulated, a person is human not only per se, individually, but also with respect to other persons, thus forming the humanity (humaneness, human dignity) of all humanity. Human rights protection should lead to discovery of this individual and over-all humaneness. We will discuss, in the next part, how the European Court for Human Rights assesses this over-all perception of human dignity in the matter of reproductive (procreative) rights. We will try to answer a question of whether the jurisprudence of the Court is converging rather towards this understanding of human dignity (and procreative rights) or, unlike this, diverging from that perception through promotion of “absolute” individual liberty. 4. Convergence or Divergence in the case-law of the European Court of Human Rights? It is impossible to present here, in this article, a complete analysis of all (important) cases relating to reproductive rights which were decided by the European Court of Human Rights. So, we will limit our assessment to some (recent) cases to display the direction the Court is heading. There is an assumption that the Court seeks to protect human rights in their entirety, in their over-all perception, with respect to the concept of human dignity in the sense of humaneness. Thus, its jurisprudence and reasoning should correspond rather to a convergent movement to this over-all perception rather than to divergence. However, it is difficult to ascertain totally the “movement” of argumentation, as the Court plays a subsidiary role in human rights protection in the European context produced by the mechanism of the Convention. States are first to guarantee rights and freedoms promoted in the European Convention of Human Rights and its protocols, which is even emphasized through the margin of appreciation doctrine. However, the role the Court plays, thanks to authoritative interpretation, is primordial. Its judgments may change national legislation of the State – the respondent party to the case, and have great influence on other national legislation of (almost) all Member States to the European Council. 58 Spaemann clarifies that it would be an argumentation in a circle to contend that man should do only those things he or she likes to do. As man is not delimited purely by instincts but is a being called to search the limit of his or her doings with respect to humanity. See SPAEMANN, Robert. Základní mravní pojmy a postoje. Nakladatelství Svoboda, Praha. 1995, p. 16. Individual liberty in its totality is destructive. Liberty has to be cultivated in order to be liberty in itself. 59 As international protection of human rights has arisen after all the atrocities perpetrated before and during WW2.

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