Category Archives: European System

July 2019: UN Treaty Bodies, Human Rights Council, & Regional Bodies in Session

Credit: European Court of Human Rights

In July, a number of universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports and country visits. Three United Nations treaty bodies will hold sessions to assess States’ progress regarding the rights of women, civil and political rights, and the prevention of torture. The Human Rights Council will continue its consideration of the overall human rights situations in 15 countries. Three UN special procedures will conduct country visits in July. Additionally, the UN Working Group on mercenaries and the Expert Mechanism on the Rights of Indigenous Peoples will hold sessions in Geneva. Of the regional bodies, the European Committee of Social Rights (ECSR) will be in session and the European Court of Human Rights (ECtHR) will hold two Grand Chamber hearings.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the ECtHR may be viewed via the ECtHR’s website. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.

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European Court of Human Rights Issues First Ever Advisory Opinion

Courtroom of the European Court of Human Rights in Strasbourg
Credit: Adrian Grycuk via Wikimedia Commons

In its first advisory opinion, the European Court of Human Rights (ECtHR) considered the parental rights, under French law, of intended mothers to children born abroad through a surrogacy arrangement. See ECtHR, Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Request no. P16-2018-001, Advisory Opinion of 10 April 2019. The Court established that intended mothers, whether biological or not, should have the possibility of obtaining legal recognition in France of their relationship with the child where the intended (and biological) father has been legally recognized and where the intended mother is identified as the “legal mother” in the foreign birth certificate. The advisory opinion is the Court’s first since the entry into force, in 2018, of Protocol No. 16, which authorizes the highest courts of States parties to request opinions from the Court on the interpretation or application of the to the European Convention on Human Rights with regard to specific legal questions. [IJRC] It remains to be seen how France will continue with the domestic proceedings that were postponed pending the ECtHR’s opinion. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 18.

Legal Background

This advisory opinion emanates from the facts and events of the ECtHR’s judgment in the 2014 Mennesson v. France (no. 65192/11) case. See id. at para. 10. In that case, two children born in the United States via a surrogacy arrangement were denied legal recognition, in France, of their relationship with their intended parents, even though that relationship was legally recognized in the U.S. See id. at para. 10. The European Court decided that there had been no violation of any party’s right to respect of their family life, but that the children’s right to respect for private life had been violated. See id. at para. 11. The Court reasoned that the right to respect for private life included the ability to determine details of one’s identity, which includes the identification of one’s legal parents. See id. at para. 12.

This ruling expressly noted that it can never be in the best interests of the child to deny legal recognition of the relationship between children and their “intended” and biological father. See id. at para. 13. Since that ruling, French courts have allowed the registration of the intended father as the legal father, if he was also the biological father of the children in question, but did not provide the same recognition to the intended mother. See id. at para. 14. The only option under French law is for an intended mother to adopt her spouse’s child, provided she is married to the biological and intended father. See id. In 2017, the Mennessons, acting as their children’s legal representatives, requested a new decision regarding their appeal against the Paris Court of Appeals’ 2010 decision to annul the legal recognition of both parents’ relationship with their two children. The French Court of Cassation requested an advisory opinion from the European Court for the purposes of re-examining that appeal. See id. at paras. 16-17.

The Advisory Opinion

The French Court of Cassation requested this advisory opinion on October 12, 2018. See id. at para. 1. On December 3, 2018 the five-judge panel of the Grand Chamber accepted the request, which raised two questions for the ECtHR:

1. By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’?

2. In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention?

See id. at paras. 2, 9. Article 8 of the European Convention on Human Rights protects the right to respect for private and family life.

State’s Refusal to Legally Recognize “Intended Mother”

In consideration of the first question, the ECtHR prioritized two factors: 1) the best interest of the child; and, 2) the scope of the margin of appreciation afforded to France in fulfilling its human rights obligations. See id. at para. 37. With respect to the best interests of the child, the European Court noted that while the State may have an interest in preventing individuals from undergoing procedures to assist their reproduction efforts that are legally precluded domestically, children who are conceived via such arrangements stand to face substantial hardships in the absence of the legal recognition of the relationship to their parents. See id. at paras. 39, 40. Specifically, the ECtHR stated that the children’s right to respect for private life under Article 8 of the European Convention is negatively impacted when domestic law does not recognize the legal relationship between children conceived via assisted reproduction methods, such as surrogacy, and their intended mother. See id. at para. 40. The Court further stated that an “absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests.” See id. at para. 42.

With respect to the State’s margin of appreciation, an important factor – determined on a case-by-case basis – is the existence of legal “common ground” between States in Europe. See id. at para. 43. The ECtHR considered relevant laws among other Council of Europe States and acknowledged the low level of consensus on this issue, which would suggest a greater margin of appreciation. See id. However, the ECtHR also noted that the margin of appreciation may be restricted in cases in which particularly important issues of identity, such as the legal recognition of a parent-child relationship, are at stake. See id. at paras. 43-44. Thus, the ECtHR concluded that the State’s margin of appreciation is reduced given the circumstances outlined in this case. See id. Considering the best interests of the child and the reduced margin of appreciation, the Court stated that Article 8 “requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother.” See id. at para. 46.

Methods of Legal Recognition

With regard to the second question posed, the ECtHR considered Convention required a specific type of legal recognition of the parent-child relationship when there was no biological relationship between the child and intended mother. See id. at para. 48. The opinion states that the best interests of the child dictate that the period of legal uncertainty surrounding children’s relationship with their parents should be as brief as possible, but that this did not require that State adopt the exact details of birth certificates created abroad. See id. at paras. 49-50. Based on the lack of legal consensus within Europe and the Court’s view that an “individual’s identity is less directly at stake” when there is no biological relationship at issue, the Court concluded that it falls within States’ margin of appreciation to decide how exactly to recognize the parent-child relationship. See id. at para. 51. Therefore, alternatives including adoption by the intended mother may satisfy Article 8 so long as the process can be completed “promptly and effectively” and “in accordance with the best interests of the child.” See id. at para. 55. The ECtHR noted that it was not within the scope of its opinion to make a determination on the adequacy of French adoption law. See id. at para. 58.

Advisory Opinion Jurisdiction

On April 14, 2018, France became the tenth State to ratify Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedom, triggering its entry into force in August of that year. [ECtHR Press Release] This Protocol extended the jurisdiction of the European Court of Human Rights to include advisory jurisdiction for States that have ratified Protocol 16. [ECtHR Press Release]

To request an advisory opinion, a State court must provide reasons for its request, provide the relevant legal and factual background of the case, and must have the issue currently pending before it. See Protocol 16, art. 1(3). The State may submit written comments and may take part in the hearing. See id. at art. 3. The President of the ECtHR may also invite other States or individuals to submit comments or take part in the hearing. See id. While the advisory opinion of the ECtHR is non-binding on the State, the aim is to give the domestic courts guidance on interpretation of the relevant provisions of the Convention that relate to the case before it. See id. at art. 5; Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. The ECtHR does not have jurisdiction to assess the facts of a domestic case or to interpret domestic law. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. Ultimately, the requesting court or tribunal must still decide the case itself. See id.

So far, 13 States in the Council of Europe have ratified Protocol 16. Those are Albania, Andorra, Armenia, Estonia, Finland, France, Georgia, Greece, Lithuania, Netherlands, San Marino, Slovenia, and Ukraine. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. An additional nine States have signed but not ratified Protocol 16. Those are Belgium, Bosnia and Herzegovina Italy, Luxembourg, Norway, Republic of Moldova, Romania, Slovak Republic, and Turkey. See id.

Additional Information

For more information about the European Court of Human Rights, visit IJRC’s Online Resource Hub. To stay up-to-date on international human rights law news, visit IJRC’s News Room or subscribe to the IJRC Daily.

June 2019: UN Treaty Body, Human Rights Council, and Regional Bodies in Session

African Court on Human and Peoples' Rights session banner

African Court on Human and Peoples’ Rights session banner
Credit: African Court on Human and Peoples’ Rights (via Flickr)

In June, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports and country visits. One United Nations treaty body will hold a session to assess States’ progress regarding the prevention of torture, and the Committee on the Rights of the Child Pre-Sessional Working Group will meet privately. The Human Rights Council will consider the overall human rights situations in 15 countries. Two UN special rapporteurs and one independent expert will conduct country visits in June. Additionally, the Working Group on the issue of discrimination against women in law and practice will hold a session in Geneva. Of the regional bodies, the African Court on Human and Peoples’ Rights (AfCHPR) will be in session and the European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The public hearings of the AfCHPR and the ECtHR may be viewed via the AfCHPR’s YouTube page, and the ECtHR’s website, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.

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May 2019: UN Treaty Bodies And Regional Bodies In Session

Palais des Nations
Credit: Jean-Marc Ferré via Flickr

In May, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Three United Nations treaty bodies will hold sessions to assess States’ progress regarding the elimination of racial discrimination, the prevention of torture, and the rights of children. The Human Rights Council Working Group on the Universal Periodic Review will consider the overall human rights situations in 14 countries. Seven UN special rapporteurs, two independent experts, and one working group will conduct country visits in May. Additionally, four UN working groups will hold sessions in Geneva. Of the regional bodies, the African Commission on Human and Peoples’ Rights (ACHPR), the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (IACtHR), and the European Committee on Social Rights (ECSR) will all be in session. The European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the AfCHPR, IACtHR, IACHR, and ECtHR may be viewed via the AfCHPR’s YouTube page, the IACtHR’s Vimeo page, the IACHR’s YouTube page, and the ECtHR’s website, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.

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April 2019: UN Treaty Bodies & Regional Body in Session

European Court Of Human Rights
Credit: Anil Öztas via Wikimedia Commons

In April, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Five United Nations treaty bodies and one pre-sessional working group will hold sessions to assess States’ progress regarding the rights of persons with disabilities, migrant workers’ rights, enforced disappearances, the elimination of racial discrimination, and the prevention of torture. Seven UN special rapporteurs, two working groups, and one independent expert will conduct country visits in April. Additionally, three working groups will hold sessions in Geneva. Of the regional bodies, the European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the ECtHR can be viewed on the Court’s website. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar. Read more

Council of Europe Adopts Declaration on Artificial Intelligence and Personal Autonomy

In a new declaration on the impact of the use of algorithms on democracy, human rights, and the rule of law, the Council of Europe’s Committee of Ministers warns that artificial intelligence and other machine-learning technologies must not be used to unduly influence or manipulate individuals’ thoughts and behavior. See Council of Europe Committee of Ministers, Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, Decl(13/02/2019)1, 13 February 2019. The first of its kind, the declaration calls on States to take steps to ensure that technologies facilitating algorithmic persuasion, particularly those that “micro-target” individuals, do not interfere with people’s ability to enjoy their human rights and to make independent political, personal, and purchasing decisions. See id. at paras. 8, 9. The Declaration, which builds on ongoing study and analysis by Council of Europe organs, adds to the growing body of guidance and recommendations concerning the regulation of machine learning to safeguard human rights, including from the United Nations Special Rapporteur on freedom of expression. Read more

ECtHR’s Second Inter-State Reparations Judgment Orders Russia Compensate Expelled Georgians

Courtroom of the European Court of Human Rights in Strasbourg
Credit: Adrian Grycuk via Wikimedia Commons

The Grand Chamber of the European Court of Human Rights (ECtHR) has issued its second ever monetary judgment in an inter-State case, ordering Russia to pay the Georgian government 10 million euros as reparations for Russia’s collective expulsion of thousands of Georgian nationals between 2006 and 2007. See ECtHR, Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2019, Judgment of 31 January 2019 (Just Satisfaction). The judgment on reparations follows the Court’s 2014 judgment on the merits of the case, in which it found that Russia’s mass expulsion of Georgians violated the European Convention on Human Rights. See id. at para. 2. If Russia complies with the judgment, Georgia will be responsible for distributing the 10 million euros to a group of 1,500 identified victims, awarding 2,000 euros to each person who was expelled and awarding an additional 10,000 to 15,000 euros to those who had also been detained and ill-treated. See id. at paras. 77, 79. This judgment applies and builds on the Grand Chamber’s 2014 just satisfaction judgment in Cyprus v. Turkey, in which it ordered Turkey to pay 90 million euros in just satisfaction for the enforced disappearance of 1,456 people and various violations against the Greek Cypriots of the Karpas peninsula, by Turkish authorities, dating to 1974. See ECtHR, Cyprus v. Turkey, [GC], no. 25781/94, Judgment of 12 May 2014 (Just Satisfaction).

This case is the first of four cases that Georgia has brought to the ECtHR against Russia since 2007. The second case, concerning Russia’s alleged violation of the European Convention during the 2008 Russo-Georgian conflict, is currently pending before a Grand Chamber. See ECtHR, Cases pending before the Grand Chamber. The third case, which concerned Russia’s detention of several Georgian nationals, was voluntarily dropped by Georgia after Russia released the individuals from detention. [ECtHR: New Complaint] The fourth case, filed in August 2018, concerns alleged violations of rights along the border between Georgian-controlled territory and Abkhazia and South Ossetia. [ECtHR: New Complaint] The International Criminal Court (ICC) has also opened an investigation into alleged war crimes and crimes against humanity committed during the 2008 Russo-Georgian conflict. See ICC, Situation in Georgia.

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