CYIL 2015

248

PAVEL BUREŠ

CYIL 6 ȍ2015Ȏ

of the

human

person in general. One has to search what is still human

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,

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.

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.

As international protection of human rights has arisen after all the atrocities perpetrated before and

during WW2.