Deb and Graham characterise my argument as follows: “the right to life under Article 2 is absolute and allows no exception; there is a negative obligation upon the UK not to take life; any euthanasia laws would necessarily involve the taking of life; therefore euthanasia laws would breach Article 2.” They then point out that this argument has been rejected in Mortier v Belgium.
The problem is that this completely mischaracterises my argument and as result Deb and Graham dedicate several paragraphs to attacking a strawman. My argument was much narrower than they claim. As I explained in my blog post the “negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means that, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them.” (emphasis added)
Mortier v. Belgium
It is not entirely clear what Deb and Graham say that Mortier holds in respect of that argument. At one point they say it was “canvassed and rejected”, but later on in the same paragraph they say that the Court turned down the opportunity to reach that conclusion and that this “is not the same thing as it not having had an opportunity.” (their emphasis) But turning down an opportunity to address an argument is rather different from rejecting it.
In any event, a detailed study of the facts of Mortier and of the arguments made will show that this argument was not raised, was not rejected and indeed that it could not have been rejected without the Court acting ultra petita.
On the facts, at no point did the Court seek to characterise Professor D (who euthanised the applicant’s mother) as being an agent of the State and there is no hint that he worked for the State. The closest there is in terms of State involvement was that the procedure was performed in a public hospital ([27]), and none of the Court’s Article 2 case-law suggests that mere use of State facilities is enough to amount to attribution to the State. Most crucially, the applicant did not plead the case in terms of breach of negative obligation. Rather the complaint was framed in terms of the positive obligation: “the statutory framework did not afford an effective safeguard for protecting vulnerable individuals’ right to life.” ([87])
As for the interveners, the Ordo Iuris Institute argued that the positive obligation under Article 2 required the State to prohibit it: “where an individual experiencing mental or physical suffering asked a doctor or third party to kill him or her or to help him or her to commit suicide, the State could not be exempted from its obligation to protect human life.” ([110]). Care Not Killing (“CNK”) came the closest to raising the negative obligations under Article 2; it “asked the Court to find that legalising euthanasia was incompatible with the negative and positive obligations under Article 2 of the Convention. The cases where deprivation of life would not be regarded as inflicted in contravention of that provision did not include euthanasia. Accordingly, a State could not rely on any exemption to justify the act of euthanasia. Furthermore, the absolute nature of the right to life left States no margin of appreciation in the matter.” That complaint, as I understand it, is that it is the legalisation (and not merely the performance) of euthanasia which is contrary to the negative obligation under Article 2. In any event, the factual basis as pleaded by the applicant simply does not support this being a conduct case.
Although the Court did not engage with the argument made by CNK, I accept that given that submission was made (albeit by a third party rather than the applicant) that the judgment can be said to have turned down the opportunity to rule that legalisation of euthanasia is a breach of a State’s negative obligations under Article 2. But the issue of whether a State may, consistently with that negative obligation, conduct euthanasia did not arise on the facts, was not raised by the parties (or the interveners) and so that argument was not “canvassed and rejected”. Indeed, if the Court had opined on it, it would have acted ultra petita.
Deb and Graham also argue that my argument is “the same argument Judge Serghides made” but that is simply inaccurate. Judge Serghides’s argument was concerned with the legalisation of euthanasia, whereas mine is concerned with who may conduct it. Moreover, Judge Serghides does not refer to the negative obligation. Rather, his argument is that (1) euthanasia is an infringement of the right to life – a conclusion he reaches for teleological reasons (“euthanasia’s purpose is to put an end to life, whereas the purpose of Article 2 is to sustain and protect life”), and (2) euthanasia is not one of the limited exceptions identified in Article 2(2).
Deb and Graham assert that the Court’s “choice of examining the complaint via the lens of positive obligations was not because negative obligations were inapplicable to that case” but they do not explain how they reach that conclusion. At no stage does the Court say that the negative obligations are applicable in this case, quite the opposite. At [129] the Court distinguishes between the negative obligations imposed by Article 2 on States and the positive obligations it imposes. At [130] the Court notes that the negative obligation and its exceptions, applies to State agents and then moves on at [131] to note that matters between individuals (i.e. non State agents) are to be analysed under the general limb (from which a positive obligation is derived). It then goes on to consider the compatibility of euthanasia under that limb. It then reaches its operative conclusion at [138] which is about “conditional decriminalisation” and not about who can perform euthanasia.
Deb and Graham also rely on the fact that Court’s jurisprudence on “healthcare professionals in the context of a State duty” does not draw “any sort of distinction based on whether the healthcare system in question is privately or publicly funded”. Firstly, the key distinction in my argument is not about funding but about whether the doctor is a State agent or not. Secondly, this is not at all surprising: the negative obligation is only relevant if what is being done arguably amount to an intentional deprivation of life. In almost all healthcare settings this will simply not be the case (in the Lopes de Sousa Fernandes v Portugal case, which they cite, there was no such issue). But it is telling that in cases where intentional deprivation of life is arguable that the Court has considered whether the negative obligation is applicable or not. So, for example, the Grand Chamber considered this issue in a case of withdrawal of life support (Lambert v France) and concluded that the negative obligation was not applicable because there was no intentional deprivation of life. This approach has also been followed by the domestic court: in the Conjoined Twins Case [2001] Fam 147, none of the judges had any difficulty with the fact that the negative obligation of Article 2 was in play and the majority concluded that it was not breached because the Doctors would not be killing Mary intentionally (so no intentional deprivation of life).
Margin of Appreciation
Finally, Deb and Graham dispute my argument that the margin of appreciation is not applicable to the negative obligation. They argue, by analogy with abortion, that there would be margin of appreciation involved. Firstly, the analogy is the wrong one. The Court grants a wide margin on the issue of when life begins and so the proper comparison would be with when life ends. I wholly accept, for example, the Court would allow different states to adopt different definitions of death (e.g. brain death) and if confronted with a case where a family member alleged that the State killed their relative who, according to the State law, was already dead then the Court would be very slow to interfere with the State’s adoption of that definition of death. However, this is not what we are talking about here. What is at issue is an instance where a State agent has intentionally killed a patient, albeit at that patient’s request and in accordance with regulations. Whilst reasonable minds can of course disagree on whether this is good or bad, there is no scope for reasonable disagreement on whether this amounts to an ‘intentional deprivation of life’ (unlike in the abortion case where the issue is whether the fetus is ‘a life’). So, in that case the margin is simply not relevant to the application of the negative obligation. By contrast the positive obligation is “to take appropriate steps to safeguard the lives of those within its jurisdiction” (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania at [130], my emphasis). What counts as an “appropriate step” is an issue on which States may reasonably disagree and that is why there is a wide margin of appreciation, especially on end of life issues. But the text of the negative obligation is so much clearer and more specific (and unlike the positive obligation, it is explicitly contained in the Treaty) than that of the positive obligation. This is why the margin’s only relevance to the negative obligation can be in relation to determining whether or not life is extinct.
As for other European countries: if I am right, then it does not really matter if the UK would be alone or whether it would be in the company of Spain and Luxembourg. All those States would be acting contrary to the negative obligation in Article 2. I accept, however, that if (almost) all European countries engaged in state-performed euthanasia, this would open up a Hassan v UK type argument based on implied modification of the Treaty. On any view, however, the numbers are simply not there.
Deb and Graham did not seek to argue that my argument, whilst not explicitly considered in Mortier, has logical implications that are inconsistent with it. They were right not to do so, as such an argument would fail. In Karsai, the Court explained its conclusion in Mortier at [127] as follows: “The Court observed that the decriminalisation of euthanasia was intended to give individuals a free choice in order to avoid what, in their view, would be an undignified and distressing end to life. It noted that the right to life could not therefore be interpreted as per se prohibiting the conditional decriminalisation of this form of PAD [physician assisted dying].” That rationale is unaffected by a prohibition on States conducting euthanasia themselves.
Legalising v. Conducting
What about the argument made by Care Not Killing – that legalising euthanasia breaches the negative obligation? Let us assume that the Court in Mortier actually rejected that argument. Unless a coherent distinction could be drawn between legalising and conducting then my argument would be inconsistent with the (putative) rejection of the Care Not Killing argument.
The first point to note is that no one dies from the mere fact of legalisation, and the negative obligation under Article 2 is only triggered if someone has died (or at the very least if there has been an attempt to kill someone). So can the action of the private party who has conducting the euthanasia, in circumstances where it has been legalised, be attributed to the State? In Makuchyan and Minasyan v. Azerbaijan and Hungary at [111]-[118] the Strasbourg Court has made use of the International Law Commissions’ Draft Articles on State Responsibility to decide issues of attribution. None of those Articles provide that the mere fact the State permits private actors to do certain mean that their actions can be attributed to the State. The closest which comes to this is Article 11 which requires that the State “acknowledges and adopts the conduct as its own.” In that case Strasbourg held that approval and endorsement was not enough to meet that high test. Therefore, the mere fact of legalisation would not meet it either.
But perhaps the argument could be put differently: the action attributable to the State is the legalisation and the deaths that do follow are all said to be caused by it. In a way that is true, one can safely assume for almost all cases that the patient would not have died were it not for the change in the law (I say almost all because the possibility of a Harold Shipman sadly still exists – i.e. someone who would have killed their patient even if it was illegal). Nonetheless there are quite a few steps in the chain between the act of passing a law and the death of any particular person. None of the case-law on the negative obligation of Article 2 deals with instances of a chain that long, so such a conclusion would be unprecedented. In any event such a conclusion would render the careful legal considerations over what acts can be attributed to the State redundant; and it would also collapse the distinction between negative and positive obligations.
The Court’s case-law on deficient legal frameworks is instructive in that regard. The Court has held that Article 2 requires that the State puts in place robust legal and regulatory frameworks around the use of lethal weapons by State agents (Giuliani and Gaggio v. Italy, Sašo Gorgiev v. the former Yugoslav Republic of Macedonia). In cases where States have failed to do so, the matter has been characterised by the Court as a failure to provide sufficient protection (Erdoğan and Others v. Turkey at [77]-[79]), i.e. breach of positive obligation rather than breach of negative obligation.
The final problem is the lack of mens rea. It cannot be said that by the act of legalising euthanasia the State intended that any particular person be deprived of their life. Rather the intention of the legislator is that this be an option for those who want it, by contrast in a conduct case the relevant intention is that of the doctor administering the lethal drug and there that intention is to kill.
To conclude, there is nothing in the Court’s case-law which rejects or undermines the argument that States are prohibited from conducting euthanasia or assisted suicide. Some might argue that this is a conclusion which Strasbourg would very much want to avoid reaching. They might be right about the judicial realpolitik (though, as the dissents in Mortier andKarsai show, some judges have considerable sympathy for an anti-euthanasia reading of the Convention), but the fact remains that the opposite conclusion would involve, at best, development of new principles of Convention law (something which the domestic courts are not competent to do) or at worst, an illegitimate judicial re-writing of the Treaty.
Rajiv Shah is a former Special Advisor to a Lord Chancellor, Attorney-General and Prime Minister. He holds a PhD in Law from the University of Cambridge.
The Author is grateful to Dr Mary Neal for her comments on this article. All errors are the Author’s own.
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