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LAW 2464 UK And European Human Rights Law

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LAW 2464 UK And European Human Rights Law

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LAW 2464 UK And European Human Rights Law

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Course Code: LAW 2464
University: Middlesex University

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Country: United Kingdom

Question:
Please select one of the three topics below:
 
1. The European Convention on Human Rights as a ‘living instrument’.2. The case law of the European Court of Human Rights on access to lawful abortion. 3. The case law of the European Court of Human Rights on mass surveillance.
Answer:

Introduction
The European Courts have dealt at length with the issue of abortion and as a result there are varied case laws and jurisprudence related to the matter. There are both sides to the coin- one side believes that the case laws have done justice to the concept of abortion whereas the other side believes that the case laws that discuss abortion have not been able to do justice the arena of abortion laws. Therefore, by analyzing the case laws, a coherent and justified reasoning can be found which will be a just analysis of the status of abortion laws under the European Convention of Human Rights. Abortion has always been a human rights concern and scholars, panelists have been of the stern opinion that abortion laws should be dealt from case to case and that the analysis should be consistent with the rights of the individuals that they are entitled to. Therefore, without having to discuss each case to reach a conclusion regarding the status of abortion laws in Europe, it is important to study the uniformity and the principles attached thereto. Abortion laws have always been a matter of sensitivity and concern and therefore, a more humanistic approach is needed to analyze the laws and reach an understanding regarding the jurisprudence of the same. The international agreements mandate that a uniform approach should be undertaken to reach a consensus regarding the status of abortion laws in Europe.
European Convention of Human Rights
The European Convention on Human Rights is an international agreement which is binding on the members of the European Union and the Member States are bound by the principles of the same. The question that needs to be answered in relation to the implications of the European Convention is if the Convention recognizes the right to abortion under its regulations and if abortion leads to a violation of social and ethical rights within the societal framework. The European Convention of Human Rights is an international agreement that helps in the preservation of human rights and ensures that the Member States make domestic laws which are not in violation of the basic human rights issue that the Convention tries to promote. The Convention also tries to see abortion from the point of view of right to life and if human rights is the basic tenet of the Convention, does abortion violate the core principles within the framework of the convention.
Abortion in European Law
There are many issues that need to be answered in respect to abortion rights in the European Union. Abortion has mostly been perceived as a social right and not an individual right and that is one of the flaws that should be addressed by the international laws. Abortion has been seen as a societal issue and not a violation of individual choice and freedom. So, the problems that are mostly faced by the scholars are regarding the legality and status of abortion vis-à-vis social wrong and not a human rights issue. The scholars have repeatedly asked the question of abortion being a fundamental human rights issue and have disregarded the societal aspect that is related to abortion.
There has been a significant rise in abortion and in Europe, it has been believed that many pregnancies lead to abortion and therefore it is very important to recognize abortion laws in Europe. If abortion laws are not upheld and the European Convention does not recognize the right to abortion, many women will try to self-harm themselves by trying at home methods for abortion. If women take the laws in their hands, there will be significant rise in death due to self-induced abortions. Abortion laws have become very complex and that is more so because it is not only restricted to the concept of right to abort but also there are many attached issues that should be resolved along with the right or access to abortion. Therefore, abortion comes with the allied rights to have consent, abortion on minors so on and so forth.
A.B. and C v Ireland is a landmark judgment which deals with a 2010 abortion law case that arose in Ireland. The case is concerned with right to privacy under article 8 of the European Convention of Human Rights. In this case, the Court was of the opinion that under article, there was a right to abortion and the court refused to equate right to privacy with right to abortion. Though the Court held that there was no claim of abortion, the Court also stated that Ireland had violated the basic provisions of the European Convention of Human Rights by denying accessible and effective procedure to a woman under the Irish Law and also refusing to acknowledge if she qualifies for the claim of a legal abortion under the Irish Law. The case was notable important because the woman was at a health risk and she was denied the right to determine if she was in the position to claim a legal abortion under the Irish law. Hence, in that regard, there was a violation of human rights. Under Irish Law, abortion is prohibited in all cases. There is only one exception to abortion where the mother can prove that there is a risk to her health.
Abortion and Human rights
Abortion should not be considered a human rights issue because there many logical and legal reasoning that are needed to be taken into account while dealing with the meaning and interpretation of right to life under the provisions of the European Convention on Human Rights.
The concept of margin of appreciation has been coined by the Courts where a leeway has been given to the states where they have the power to make the determination as to when the right to life has begun. In the cases, R.H v Norway, the Court had included the unborn within the ambit of the provision by stating that the unborn shall not be given the status of a person within the meaning and purport of the Convention. A conflict that arose in the interpretation of the extent of protection of an unborn child to be treated as human or not, Article 2 of the Convention was analyzed. As per the provisions of Article 2 of the Convention, every human requires protection and therefore if a foetus or an unborn child had to be given protection, it has to be accepted that the foetus belongs to the human race.
Rights of Member States
The signatories to the Convention are the Member States who are obligated to follow the laws and regulations which have been upheld in the European Union. The universal law is that abortion is a violation of human rights and that every state which is a signatory to the Convention should use checks and balances to rule out any unjustified, painful and unnecessary abortion. When it comes to the question of abortion of unborn children, the interpretation of a “person” within the ambit of Article 2 of the Convention remains open to understanding and judicial analysis. Member states do not have the unprecedented and unequivocal rights in determining the legality of abortion and therefore their actions should pass the test of reasonableness. In the case of P.& S V. Poland, no 57375/08, 30 October 2012, it was held by the Court that the rights of the parties need to be balanced and also the legitimate interests of the parties need to be taken into account. The Court in this case had held that the patient was not given proper treatment and that she was denied an access to abortion, thereby violating article 8 of the Convention. If a domestic legislation tries to pass an abortion law, they need to weigh the probabilities and thereafter check the rights and issues that govern those laws. The member states have to also look at the rights of the mother, the interests of the unborn child along with that of the father.
Case Laws
This is a very difficult concept to ascertain and accomplish when it comes to evaluating
the interest  of the parties because human worth cannot be estimated, neither can it be equated with another human. The domestic laws have tried to bring the rights under one umbrella to ensure human rights are not violated and that social rights are preserved. The important cases that are pertinent to understanding the legality of abortion. Tysiac v Polandwas related to article 8 of the Convention which deals with the right of every individual to respect his private as well as family life. The patient in this case was denied therapeutic abortion following which she suffered retinal hemorrhage and the Court held that the mother was not given reasonable time to determine if she could obtain a legal and valid abortion. In the case of Evans v United Kingdom, it was held that there was no violation of right to life under the provisions of Article 2 and that an in-vitro fertilization did not form a valid ground for a claim of right to life of an unborn child. Again, in the case of Dickson v United Kingdom, it was held that there was rightly a violation of right to respect private and family life under article 8 of the Convention and that there was a conflict between the public and private interests. For every national and/or domestic law to pass the test of fairness, it is essential that it is not in violation to the basic principles of human rights and that it is also essential that there is a proper balance struck between the public and the private lives of the individuals. In the case of Csoma v Romania, it was held that a woman had the right to know the medical treatment she is being subject and in cases when the woman is not informed about the treatment, it shall be a violation of her fundamental human rights. A woman has to be notified about the medical treatment she will be undergoing and if the doctors fail to do that, it shall be held to be a violation of article 8 of the Convention. Therefore, though after the landmark judgment in the case of A, B and Co v Ireland, the Court decided that if the life of the woman is at risk, abortion shall be allowed but in general circumstances, the Convention shall not grant abortion a legal right within the jurisdiction of Europe. The same principles were held in the case of Martins Riberio v Portugal, where it was held that abortion cannot be granted legal right and that the state was bound by its limitations. 
Conclusion
The domestic laws should be aligned to the goals and objectives of the international laws and when the European Convention on Human Rights is the authority on human rights, it is mandatory for the state legislations to ensure that their laws do not violate basic human rights principles.  Therefore, when a national court is passing a judgment with regards to abortion, it has to make sure that the public as well as the private interest of the parties are met and that the state adopts a very humanistic as well as transparent approach in dealing with adoption laws. The above mentioned case laws are indicative of the fact that adoption is a very sensitive topic which needs careful evaluation and it is necessary that proper laws are adopted so that there has been no violation of basic human rights. It is highly essential to point that human rights should always be equated with societal rights and abortion laws are a prime example of how case laws have evolved over time to consider humanistic approach in understanding the legality of the same. Initially, there were many impediments that were faced by the states in regulating abortion laws and with the passage of time, it has come to be accepted that the private and the public interest of the parties need to be aligned and that the rights of the mother, along with the unborn child and also the medical staffs should be factored in.
References
Buergenthal, Thomas, Dinah L. Shelton, and David Stewart. “International human rights in a nutshell.” (2009).
Jacqué, Jean Paul. “Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, The.” Common Market L. Rev. 48 (2011): 995.
Kilkelly, Ursula. “The Best of Both Worlds for Children’s Rights-Interpreting the European Convention on Human Rights in the Light of the UN Convention on the Rights of the Child.” Hum. Rts. Q.23 (2001): 308.
McDonagh, Eileen L. “My body, my consent: securing the constitutional right to abortion funding.” Alb. L. Rev. 62 (1998): 1057.
Merrills, John Graham. The development of international law by the European Court of Human Rights. Manchester University Press, 1995.
P.& S V. Poland no 57375/08, 30 October 2012
R.H Norway, App. No 17004/90, 1992 Eur. Ct. H.R.
Simpson, AW Brian. Human rights and the end of empire: Britain and the genesis of the European Convention. Oxford University Press on Demand, 2004.
Steiner, Henry J., Philip Alston, and Ryan Goodman. International human rights in context: law, politics, morals: text and materials. Oxford University Press, USA, 2008.
Van Dijk, Pieter, Godefridus JH Hoof, and Godefridus JH Van Hoof. Theory and practice of the European Convention on Human Rights. Martinus Nijhoff Publishers, 1998.
Vieira, Norman. “Roe and Doe: Substantive Due Process and the Right of Abortion.” Hastings LJ 25 (1973): 867.

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