CYIL vol. 9 (2018)

PAVEL CABAN CYIL 9 ȍ2018Ȏ which the draft Convention addresses itself ”, which does not preclude even “recognition of an unborn child’s right to life, provided that other human rights guarantees were not thereby violated”. 18 Further, on the regional level, it is worth noting that the American Convention on Human Rights of 22 November 1969 explicitly provides that the right to life “shall be protected by law, and, in general, from the moment of conception”. 19 On the other hand, as noted by Tom Venzor, this provision, which “purports to protect life from conception in theory, does not actually do so as a practical matter”, since the Inter-American Commission on Human Rights “delegates Article Four’s interpretation to the individual nations”. 20 In Europe, the status of the unborn child (foetus) was subject of several decisions of the European Court of Human Rights and the European Commission as its predecessor. The Court, in its jurisprudence concerning this issue, came to the conclusion that “the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere”. 21 The Court and the Commission also pronounced certain (vague and provisional) propositions concerning the question whether the European Convention on Human Rights, namely Article 2 on the right to life, could be relevant for the protection of rights and interests of the unborn life. In the case of H. v. Norway, the European Commission of Human Rights noted that it did not “exclude” that “in certain circumstances” the foetus “may enjoy a certain protection” under Article 2, first sentence. 22 The Court, in its decision in Vo v. France, mentioned, with reference to Article 2, that “[t]he Convention institutions have not … ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child”, and added that “the issue [of abortion] has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child”. 23 The Court also stated that, as regards European states, “it may be regarded as common ground between States that the embryo/foetus belongs to the human race” and that “[t]he potentiality of that being and its capacity to become a person … require protection in the name of human dignity, without making it a ‚person‘ with the ‚right to life‘ for the purposes of Article 2”. 24 Further, in the A., B., and C. v. Ireland, the 18 ALSTON, Philip. The Unborn Child and Abortion under the Draft Convention on the Rights of Child, Human Rights Quarterly , Vol 12 (1990), No. 1, pp. 157 and 172. 19 Article 4, para. 1 (Right to Life): “1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”. 20 VENZOR, Tom. Protecting the Unborn Child: The Current State of International Law Concerning the So-Called Right to Abortion and Intervention by the Holy See, Nebraska Law Review , Vol. 89 (2010), Issue 4, pp. 1157-1158. 23 ECtHR, Vo v. France, op. cit. sub 21, para. 80. The ECtHR referred, i. a., to the decision by the European Commission of Human Rights in Brüggemann and Scheuten case, where the Commission stated that “[a]rticle 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother”; European Commission of Human Rights, Application No. 6959/75, Brüggemann and Scheuten v. Federal Republic of Germany, Report of the Commission (adopted on 12 July 1977), § 61. 24 Ibid., para. 84. The Court added that “it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention …”; ibid., para. 85. However, the proponents of such undesirability and impossibility of answering in abstract the question of the personhood of the unborn child should be aware of evil and ominous theories, which assimilate 21 ECtHR, Vo v. France, Application no. 53924/00, Judgment, 8 July 2004, para. 82. 22 ECtHR, H. v. Norway, Application no. 17004/90, Decision, 19 May 1992, para. 1.

192