The ECtHR’s Decision to Dismiss the First Request Submitted Under Article 29 of the Convention on Human Rights and Biomedicine

Abstract

The present article is aimed at critically assessing the ECtHR’s decision to dismiss the first request submitted under Article 29 of the Convention on Human Rights and Biomedicine (“Oviedo Convention”) by the Council of Europe’s Committee on Bioethics, for the purpose of clarifying certain aspects of the interpretation of Article 7 of the Oviedo Convention. While the ECtHR ultimately decided not to render the advisory opinion on the grounds that it would be outside its competence, the decision is of interest because it nonetheless was an occasion for the Court to assert in general terms its jurisdiction under Article 29 of the Oviedo Convention and to define the contours of its advisory competence. Yet, it will be argued that the Court’s reasoning is rather unconvincing, if not mistaken, and that it ultimately results in an unclear definition of the boundaries of its jurisdiction. The lack of clarity is further exacerbated by the fact that the Court seems to have treated as questions of competence some issues that most likely would have had to be addressed within the framework of propriety. This aspect will appear rather distinctly if one compares the ECtHR’s approach to the solutions adopted by other international courts and tribunals. This comparison will also be useful in order to suggest an alternative path that the Court could have followed, and which would have not only represented a more correct and coherent reasoning but also avoided the likely outcome of its decision, that is putting its advisory competence under the Oviedo Convention back in the attic.