Surrogacy issues in the format of “surrogate” law: a comment on the Advisory Opinion of the European Court of Human Rights of 10 April 2019

2019 ◽  
Vol 31 (3) ◽  
pp. 45-58
Author(s):  
Tatiana Khramova
Keyword(s):  
Human Rights ◽  
Advisory Opinion ◽  
European Court

CONCERNING TO THE LEGAL NATURE AND IMPORTANCE OF THE ADVISORY OPINIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

2017 ◽  
Author(s):  
Artem Ivanov ◽  
◽  
Eliza Shyhapova ◽  
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Primary Sources ◽  
Advisory Opinion ◽  
Council Of Europe ◽  
General Importance ◽  
European Court ◽  
Legal Nature ◽  
Protection Of Human Rights ◽  
Advisory Opinions

This article is devoted to clarify the significance of the advisory opinions of the European Court of Human Rights as a recently improved institution. Thus, according to Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, the highest judicial institutions of the High Contracting Party, as defined in accordance with Art. 10 may apply to the Court for advisory opinions on matters of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its protocols. Considering the fact that only two advisory opinions on the appeal of the member states of the Council of Europe have been published on the official website of the court, this topic is a new subject for research and requires a systematic study. Allowing states to seek advisory opinions was driven by the need to ease the burden on the European Court of Human Rights. However, given the novelty of the improved institute, this statement is still controversial. The article offers its own conclusions regarding the significance of the advisory opinions in the activities of the European Court, provides a view on the legal nature of this legal institution in the internal legal order of Ukraine. This was achieved by defining the essence of such a mechanism, analyzing primary sources from the official website of the court, statistical data on the functioning of the institution, and generalizing national legislation to determine the legal nature. Thus, although Ukraine has ratified Protocol No. 16, however, the legal status of such advisory opinions has not been determined. In this connection, it is proposed to amend a number of legislative acts, in particular, to article 17 of the Law of Ukraine "On the implementation and application of the practice of the European Court of Human Rights", which should be supplemented with the rule on the legal force of the advisory opinion of the European Court of Human Rights. According to the general importance of such an institution, it seems reasonable to hope for a decrease in the number of decisions that would contradict the practice of the European Court of Human Rights, and, accordingly, a decrease in the grounds for filing applications.

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.)

2019 ◽  
Vol 58 (6) ◽  
pp. 1234-1250 ◽  
Author(s):  
Scott W. Lyons
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Advisory Opinion ◽  
Parent Child Relationship ◽  
Child Relationship ◽  
European Court ◽  
Fundamental Freedoms ◽  
Surrogacy Arrangement ◽  
Protection Of Human Rights ◽  
Gestational Surrogacy

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.

European Union—accession of the Community to the European Convention on Human Rights— competence of the Community under Article 235 of the Treaty Establishing the European Community—need to amend the Treaty

1996 ◽  
Vol 90 (4) ◽  
pp. 664-669 ◽  
Author(s):  
Judith Hippler Bello ◽  
Juliane Kokott ◽  
Frank Hoffmeister
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Community ◽  
European Convention ◽  
Advisory Opinion ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
National Jurisdiction

Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 17 Hum. Rts. L.J. 51 (1996).European Court of Justice, March 28, 1996.On April 26, 1995, die Council of the European Union requested an opinion on whether accession of the European Community to the European Convention on Human Rights (ECHR) was compatible with the Treaty Establishing the European Community (Treaty). In its request, the Council of the European Union stated that no decision on opening negotiations could be taken before the Court pronounced on die compatibility of accession with the Treaty. The Council argued that, even though a text of the envisaged agreement did not yet exist, the legal issues regarding accession were sufficientiy clear for the Court to provide an advisory opinion. The Council made clear that accession should not have any effect on the reservations entered by member states, which would “continue to apply in the areas falling within national jurisdiction.” It also explained that the “Community would agree to submit to the machinery for individual petitions and inter-State applications; actions between the Community and its Member States would, however, have to be excluded in recognition of the monopoly conferred in such matters by Art. 219 of the EC Treaty on the Court of Justice.”

Advisory opinions under Protocol No. 16 to the European Convention on Human Rights

2015 ◽  
Vol 11 (2) ◽  
pp. 274-292 ◽  
Author(s):  
Ada Paprocka ◽  
Michał Ziółkowski
Keyword(s):  
Human Rights ◽  
Subject Matter ◽  
European Convention ◽  
Advisory Opinion ◽  
European Court ◽  
The Subject ◽  
Advisory Opinions ◽  
Legal Consequences

European Court of Human Rights – Protocol No. 16 to the European Convention on Human Rights – Protocol No. 16 as part of the European Court of Human Rights reform – Advisory opinions under Protocol No. 16 – Authority requesting an advisory opinion – The subject matter of an advisory opinion – Legal consequences of advisory opinions

Considerations on Protocol N°16: Can the New Advisory Competence of the European Court of Human Rights Breathe New Life into the European Convention on Human Rights?

2015 ◽  
Vol 16 (2) ◽  
pp. 337-350 ◽  
Author(s):  
Christos Giannopoulos
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Advisory Opinion ◽  
National Courts ◽  
European Court

Protocol n°16 expands the advisory jurisdiction of the European Court of Human Rights (hereinafter ECtHR) by introducing a mechanism of litigation-related opinions (“avis contentieux”). It affords the highest national courts and tribunals the ability to ask the ECtHR for an advisory opinion on questions of principle related to the interpretation and application of the rights and freedoms defined in the European Convention on Human Rights (hereinafter Convention) and the Protocols thereto.

scholarly journals Judicial dialogue in the light of Protocol no. 16 to the European convention on human rights

2019 ◽  
Vol 40 (2) ◽  
pp. 899-925
Author(s):  
Bruna Žuber ◽  
Špela Lovšin
Keyword(s):  
Human Rights ◽  
Detailed Analysis ◽  
National Level ◽  
European Convention ◽  
Advisory Opinion ◽  
National Courts ◽  
European Court ◽  
Legal Nature ◽  
Human Rights Standards ◽  
The Impact

The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

scholarly journals The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System

2015 ◽  
Vol 16 (6) ◽  
pp. 1387-1428
Author(s):  
Maria Dicosola ◽  
Cristina Fasone ◽  
Irene Spigno
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Advisory Opinion ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
High Courts ◽  
European Court ◽  
Advisory Opinions

On 2 October 2013, Protocol No. 16 to the European Convention on Human Rights (ECHR) was opened for signature by the Member States of the Council of Europe (CoE). The protocol, that has so far been signed by sixteen States and ratified by Albania, Georgia, Lithuania, San Marino and Slovenia, will enter into force in case of ratification by at least ten Member States. If the protocol becomes effective, it will expand the European Court of Human Rights’ competence to give advisory opinions upon request by domestic high courts and tribunals.

Challenges Posed by Transnational Commercial Surrogacy: The Jurisprudence of the European Court of Human Rights

2021 ◽  
pp. 1-18
Author(s):  
Julian W. März
Keyword(s):  
Human Rights ◽  
Common Ground ◽  
Best Interests ◽  
Advisory Opinion ◽  
Commercial Surrogacy ◽  
European Court

Abstract There is little consensus between European States regarding the legal treatment of surrogacy in general and of transnational commercial surrogacy in particular. Against this background, the jurisprudence of the European Court of Human Rights (ECtHR) in this matter is of particular significance since it provides some common ground for the legal treatment of transnational commercial surrogacy in Europe. For this reason, the present paper will outline the development of the jurisprudence of the ECtHR on transnational commercial surrogacy, giving particular attention to the Mennesson and Labassee decisions, the Paradiso/Campanelli case, and the 2019 Advisory Opinion. On this basis, it will conclude by underlining the importance of the best interests of the child principle in the jurisprudence of the ECtHR on transnational commercial surrogacy.

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