CYIL 2014

252

PAVEL BUREŠ

CYIL 5 ȍ2014Ȏ

norms of international law and in some way by obligations previously subscribed to.

This is the case of the European Convention for the member States of the Council of

Europe. By signing the Convention or acceding to it, they have agreed they will secure

to everyone within their jurisdiction rights and freedoms defined in the Convention

for everyone and will respect and enforce judgments of the Court as an international

judiciary body. In the last several years some authors

have challenged the methods

of interpretation used by the Court, assessing them as too active. This is also the case

of two judgments recently published by the ECtHR and which are not definitive.

On 26 June 2014 the Court delivered judgments in the cases Mennesson and Others

v. France

and Labassee v. France.

Both cases relate to reproductive rights and

especially the issue of surrogacy maternity. The facts in both cases are very similar: the

applicants, French nationals who had recourse to surrogacy treatment in the USA,

faced a refusal by French nationalities to grant legal recognition of a parent-child

relationship that had been legally established previously in the USA. The applicants

were claiming violation of their private and family life and the violation of private life

with respect to a child/children. In its deep reasoning of the issue of interference to

private and family life the Court uses a balancing test. It concludes that there was no

violation with respect to the private and family life of the applicants. The applicants

can freely make profit of their private and family life; their parental authority and

rights were not infringed by the refusal of French authorities to grant the recognition

of the parent-child relationship.

On the other hand, as to the respect of the private life of the child born in

the USA by surrogacy treatment, the ECtHR found a violation. The Court claims

that one of the essential aspects of identity, which relates to private family life, is

filiation.

Children born by surrogacy are in a juridical incertitude which relates

to, e.g. their nationality or successoral rights.

The Court accepts that France, by

its legislation, wants to discourage its nationals from taking recourse to surrogacy

treatment; however it is not more imaginable if the refusal to grant filiation affects

the superior interest of children.

From the sole point of view of children’s best interest this argumentation can be

accepted. We argue, however, that the Court misses the overall reasoning to human

rights protection and to the whole system of the creation of legal norms. There is

a well-known principle in international law –

ex iniuria ius non oritur

. The question

is whether this principle also applies to human rights protection. It is clear that in

Touzé, S., Les techniques interprétatives des organes de protection des droits de l’homme.

Revue

générale de droit international public

, t. 115, n° 2 (2011), pp. 517-540. Or IRVINE of LAIRG, Lord.

Activism and restraint, human rights and the interpretative process.

European human rights law review,

Issue 4 (1999), pp. 350-372.

Case Mennesson and Others v. France, no 65192/11, 26 June 2014.

Case Labassee v. France, no 65941/11, 26 June 2014.

Case Mennesson and Others v. France, § 96.

Ibid

., § 98.

Ibid

., § 99.