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Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms and 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 (Eur. Ct. H.R.)

Published online by Cambridge University Press:  19 December 2019

Scott W. Lyons
Scott W. Lyons*
Affiliation:
Senior Lecturer and Africa Regional Program Lead for the Institute for Security Governance, based at the Naval Postgraduate School. The views in this article are solely of the author in his personal capacity and do not represent the views of the U.S. Department of Defense, of any other agency, or of the U.S. government.
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Extract

On April 14, 2018, Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms received sufficient ratifications and entered into force on August 1, 2018. The Protocol, for the first time, enabled the European Court of Human Rights (ECtHR) to provide advisory opinions for the states that ratified the Protocol.

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 6 , December 2019 , pp. 1234 - 1250
Copyright
Copyright © 2019 by The American Society of International Law

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References

ENDNOTES

1 See Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 214 (Aug. 1, 2018).

2 On April 14, 2018, France became the tenth state to ratify the Protocol, at which point the Protocol passed the necessary threshold to enter into force. As of August 9, 2019, thirteen states of a possible forty-seven had ratified the Protocol and nine states had signed, but not ratified. The treaty opened for ratification on October 2, 2013. See Chart of Signatures and Ratifications of Treaty 214, Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, available at https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/214/signatures?p_auth=tDQAwVsb.

3 See Brighton Declaration, Apr. 20, 2012, available at https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf.

4 See Reform of the Court, Summaries of the Conferences, available at https://www.echr.coe.int/Pages/home.aspx?p=basictexts/reform&c.

5 Protocol No. 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS, No. 213, available at https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680084831. Unlike Protocol No. 16, Protocol No. 15 requires universal ratification to enter into force. As of August 9, 2019, only the two states of Bosnia and Herzegovina and Italy have yet to ratify. Both have signed the treaty. See Ratification Status, available at https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213.

6 Protocol No. 15, CETS No. 213, art. 5.

7 See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 221.

8 Doc. CM(2006)203, ¶ 135 (Nov. 2006), available at https://www.statewatch.org/news/2006/dec/wcd.coe.pdf.

9 See Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, art. 4, available at http://en.african-court.org/images/Basic%20Documents/africancourt-humanrights.pdf. See also Statue of the Inter-American Court of Human Rights, art. 2, available at https://www.oas.org/en/iachr/mandate/basics/statute-inter-american-court-human-rights.pdf.

10 Explanatory Report to Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 214, ¶ 17, available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016800d383e. The review also took into consideration language sensitivities in determining ways to expedite the response to the needs of the national tribunal. See id. ¶ 23.

11 See Copenhagen Declaration, Apr. 13, 2018, available at https://www.echr.coe.int/Documents/Copenhagen_Declaration_ENG.pdf.

12 See Case 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, ¶ 9 (Eur. Ct. Hum. Rts. Apr. 10, 2019).

13 Id. ¶ 38.

14 Id. ¶¶ 46, 55.

15 Id. ¶ 25.

16 The case of the Mennesson family and who should appear on legal documents has involved a California State Supreme Court case, numerous French domestic cases, and a previous European Court of Human Rights case. Mennesson v. France, App. No. 65192/11, ECHR 185 (Eur. Ct. H.R. June 26, 2014).

17 See Press Release Registrar of the Court, Armenian Constitutional Court Requests an Advisory Opinion on an Article of Its Criminal Code, ECHR 208 (2019) (Aug. 9, 2019), http://hudoc.echr.coe.int/eng-press?i=003-6476599-8537053.