! J U R I D I C U M A Human Right to Die? The Legality of Euthanasia under the European Convention on Human Rights Amanda Engström VT 2020 RV600G Rättsvetenskaplig kandidatkurs med examensarbete, 30 högskolepoäng Examinator: Adam Croon och Katalin Capannini-Kelemen Handledare: Joakim Nergelius Summary This bachelor thesis examines whether there is a human right to die with assistance, so-called euthanasia, included in the European Convention on Human Rights (ECHR). It finds that a right to die is not expressly enumerated within the rights and freedoms set forth in the ECHR. Consequently, it investigates whether such a right derives from Article 2 or Article 8 of the Convention. This thesis further examines if there is a unanimity within the European Union regarding an individual’s possibility to decide over one’s death, by reviewing state practice of Sweden and the Netherlands. Eventually, it observes the main arguments in the legal debate concerning euthanasia and evaluates the possibility of establishing a common practice related to euthanasia within the Union. With the use of a legal dogmatic method, this thesis identifies that Sweden prohibits active euthanasia and physician-assisted suicide due to the risk of abuses. However, acts of passive and indirect euthanasia are allowed as a last resort to alleviate suffering. Contrariwise, it finds that the Netherlands has decriminalised euthanasia and assisted suicide performed by doctors for the reason that a ban would generate an uncontrollable situation. It thus concludes that a consensus between the Union Member States is missing. As a consequence, this thesis analyses whether acts of euthanasia are legitimate or incompatible with Article 2 and Article 8 of the ECHR. It discovers that Article 2 is not be interpreted to contain a right to die and neither that such a right is enshrined in Article 8. Nevertheless, it finds that the European Court of Human Rights (ECtHR) has hesitated to determine whether the legality of euthanasia contravene with the Convention by referring to the margin of appreciation left to the Member States in matters related to moral questions. When analysing the euthanasia debate, this thesis detects that the primary arguments are divided into two opposing principles, namely the assurance of personal autonomy against the protection of the human dignity of all individuals. By taking into consideration the reasoning for and against the lawfulness of euthanasia as well as the discretion given to the Member States, it finally concludes that it is impossible to institute a universal standard regarding euthanasia within the European Union at the present time. Nevertheless, it stresses that an examination of the pending application in Mortier v Belgium before the ECtHR could change ​ ​ the existing situation. i Table of Contents 1. Introduction 1 1.1. Background 1 ​ ​ 1.2. Purpose and Research Questions 2 1.3. Method and Material 2 ​ ​ 1.4. Delimitations 3 2. Definitions 5 2.1. Euthanasia 5 2.2. The Beginning and End of Life 6 ​ ​ 2.3. The Right to Life and Respect for Privacy 7 ​ ​ 2.4. Margin of Appreciation 8 ​ 3. National Regulations of Euthanasia 10 3.1. Sweden 10 ​ 3.2. The Netherlands 11 ​ 4. The European Convention on Human Rights 14 4.1. A Right to Die under Article 2? 14 ​ ​ 4.2. A Right to Die under Article 8? 16 5. The Reasoning Behind National Rules of Euthanasia 18 5.1. The Lawfulness of Euthanasia Reasoned in the Netherlands 18 5.2. The Current Situation in Sweden Concerning Euthanasia 19 6. Criticism and Arguments in Favour of a Legalisation of Euthanasia 22 7. Final Analysis: A Consistent Practice? 26 8. Conclusion 30 9. Table of Authorities 31 ii 1. Introduction Modern medicine provides for an increased possibility to cure diseases and prolong life, but also to hasten death by withdrawing life-sustaining treatments.1 With the extension of medical technology follows the question of who holds the right to decide over one’s body in matters related to life and death. Is such a choice assigned to you, your relatives, or the authorities in the state you live? The rapid development of technology increases the need to enact laws covering moral issues.2 However, are those matters to be answered nationally or internationally? 1.1. Background Euthanasia primarily raises concerns in terms of the enjoyment of the right to life, which is one of the most fundamental principles that has been established. It is a basis for the enjoyment of other rights and freedoms protected by several human rights instruments,3 of which the European Convention on Human Rights (ECHR) is not an exception.4 The right to life forms part of customary international law,5 and all forms of derogations are prohibited.6 Nonetheless, some restrictions may be justified, like the enforcement of death penalty and acts of force that are absolutely necessary. Euthanasia is not enumerated as a ground for justification,7 although it is executed in various states that have ratified the ECHR.8 The lawfulness of euthanasia has induced an expansion of disputes due to different moral beliefs and cultural norms that prevail in society.9 Numerous cases have been brought before the European Court of Human Rights (ECtHR) as a consequence of obscurities regarding the 1 Torbjörn Tännsjö, ‘Moral Dimensions’ (2015) BMJ 331, 689. 2 Richard Åkerman, ‘Är det min eller är det jag? Äganderätt till kroppen’ (2003) Häfte 7 SvJT 637, 651. 3 See Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocol Nos. 11 and 14) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5, art 2 (ECHR); Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, art 2; International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 6 (ICCPR); Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 3; Convention on the Rights of Persons with Disabilities: Resolution adopted by the General Assembly (adopted 24 January 2007, entered into force 8 May 2008) A/RES/61/106, art 10 (CRPD); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 6 (CRC); American Convention on Human Rights: “Pact of San Jose, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978), art 4 (ACHR); African Charter on Human and People’s Rights: (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art 4 (ACHPR). 4 ECHR (n 3) art 2. 5 Niels Petersen, ‘Life, Right to, International Protection’ (October 2012) in Max Planck Encyclopedia of Public ​ International Law (MPEPIL) (online edn) accessed 28 April 2020, para A 1-2. ​ ​ ​ 6 See McCann and Others v the United Kingdom, App no 18984/91 (ECtHR, 27 September 1995) (McCann v the ​ ​ ​ UK); UN Human Rights Committee, ‘General Comment 36: Article 6: Right to Life’ (3 September 2019) UN ​ Doc CCPR/C/GC/36, para 2. 7 ECHR (n 3) art 2. 8 Statens Medicinsk-Etiska Råd, ‘Dödshjälp: En Kunskapssammanställning’ [The Swedish National Council on Medical Ethics, ‘Euthanasia: A State of Knowledge Report’ (own translation)] (2017) 5, 47 (SMER). 9 The Parliamentary Assembly of the Council of Europe, ‘Assistance to Patients at End of Life’ (9 February 2005) Doc. 10455, paras 3, 48 (Doc. 10455). 1 legality of euthanasia under the ECHR.10 A clarification of the legal situation is thus needed in order to settle the controversies related to euthanasia within the European Union.11 1.2. Purpose and Research Questions The main purpose of this thesis is to investigate if there is a human right to die with assistance, so-called euthanasia, included in the ECHR. A review of national laws of two Members States of the European Union (EU) will be issued in order to examine whether there is a unanimity within the Union regarding individuals’ possibility to control one’s cessation of life. Additionally, this thesis will analyse whether a right to die should be incorporated into the ECHR, taking into consideration the legal debates on the matter. In order to reach the present purpose, the following questions have to be answered: ● Is it a right to die included in the right to life or in the right to respect for private and family life of the ECHR? ● How do Sweden and the Netherlands regulate euthanasia? And what are their motives for such a regulation? ● What are the main arguments in favour of respectively against decriminalisation of euthanasia? ● Is it possible to establish a universal standard related to euthanasia within the European Union? 1.3. Method and Material This thesis aims to examine if it is a human right to decide over one’s death within the ECHR by using a traditional legal dogmatic method. The purpose behind the method is to find the applicable law on a legal issue by using the generally accepted sources of law and interpret these sources on the problem in order to perceive a legal solution.12 Within this thesis, a comparative analysis will be conducted to examine state practices regarding euthanasia of two Member States of the European Union. A comparative method forms part of the legal dogmatic method, meaning that a clarification of the applicable legal sources in these countries will be identified as well.13 EU law and the judgments of the ECHR are superior to national sources of law, which means that national findings are examined in the light of the legal sources of the Union.14 Generally accepted sources of law derive from the​ Rule of Recognition in the national legal system of each state.