By Grégor Puppinck, Director, The European Centre for Law & Justice [ECHR]
Article translated from French and published on Valeurs actuelles on May 7th, 2019.
On May 3 2019, the decision of the Committee on the Rights of Persons with Disabilities of the United Nations, asking France to prevent the euthanasia of Vincent Lambert during the examination of the application lodged by his parents, caused stupefaction. Three days earlier, on April 30, the European Court of Human Rights (ECHR), on the contrary, had agreed upon his death.
Obviously embarrassed, the French Minister of Health declared on May 5 that “the medical team in charge of this case is entitled to stop the care,” adding contradictorily that “We are not legally bound by this Committee, but of course we take into account what the UN says and we will answer them”…
Let’s clarify things on this new procedure, its duration, its authority, and its links with the ECHR.
Two decisions have already been taken in Geneva
It is not one but two decisions that have already been taken by the Committee on the Rights of Persons with Disabilities (CRPD) regarding the Lambert case: firstly they registered the application lodged by the parents of Vincent Lambert and secondly they requested interim measures.
The request was first examined by the Secretary-General of the CRPD which considered that it fulfilled the “preliminary criteria” of admissibility and consequently registered and communicated it to the French Government (Article 56 of the Rules of procedure of the Committee). This is a first step that already shows that the request is well formulated and falls within the scope of the Committee.
The French Government now has six months to answer the charges against the French medical and judicial decisions, both on the admissibility and the merits of the request. It will have to find other arguments than those stated Sunday by the Minister of Health, when she declared this Committee incompetent to protect people in the condition of Vincent Lambert on the grounds … that he would not be disabled but in a “vegetative” state.
In fact, Mr Lambert’s state of health perfectly fits the Convention’s definition of disability.
Vincent Lambert is neither at the end of his life nor suffering from an illness, but in a state of altered consciousness after a traumatic brain injury. He breathes alone, wakes up in the morning and falls asleep at night. Although having gotten his swallowing reflex back, he is fed and hydrated through a simple gastric tube. He can, according to the moments and the stimulations, turn his head or follow his interlocutors with his eyes, which is a sign of conscience for the specialists.
Even his nephew, though a supporter of his rapid death, explains that he doesn’t go to the hospital anymore because he is “afraid to add presence to him when it is probably unbearable to have so much presence around him” (Europe1, 05.05.2019). This is indeed a recognition that Vincent Lambert is aware of his surroundings.
Thus, Vincent Lambert is neither brain-dead, nor sick, nor at the end of his life. He is handicapped, like 1,700 other people in the same situation in France.
The French Government has committed, in international law, to comply with the decision of the Committee on the Rights of Persons with Disabilities
The communication having been registered, the Committee logically requested the French Government to ensure the hydration and nutrition of Vincent Lambert be maintained during the time of the procedure. No matter what the Minister of Health may say, the French Government is bound, in international law, to it, for the mere reason that it committed itself to it, in the name of France, by ratifying the Convention on the Rights of Persons with Disabilities. It is the very text of this Convention which bestowed on the Committee the power to request interim measures, whereas the ECHR claimed it in its Rules of Procedure. On the other hand, the Government is however free to challenge this measure with the Committee; but the former would then have to prove that it is urgent to euthanize Mr. Lambert.
It is true that the decisions of the Committee, like allinternational bodies (including the ECHR), are not directly enforceable in the domestic legal order. But it is up to the national authorities to implement them by themselves, under the control of the CRPD and other States Parties to the Convention. To claim that France could “ignore” its own human rights commitments (Lemonde.fr, 24.04.2019) is legally false and politically irresponsible. The entire international system of protection of human rights relies on the respect by States of the word given, on their good faith and cooperation. This is both its greatness and its weakness.
Only if the Committee exceeded its powers – by ruling “ultra vires” – could France legitimately refuse to comply with its requests. This was the case, for example, when a UN committee in 2014 claimed that the Vatican State had an obligation to legalize abortion in the name of children’s rights! But that is clearly not the case here: the CRPD is perfectly within its competence.
Possible outcome of the procedure
The persons who want Vincent Lambert to be dead quickly mainly rely on a decision of non-admissibility of the Committee on the grounds that the case was already lodged before the ECHR. Indeed, the rules of procedure provide that a request (called ‘communication’) is inadmissible when the question “has been or is being examined under another procedure of international investigation or settlement”. The ECHR and the CRPD are supposed to withdraw when the same question has been lodged to the other one first, but they don’t always do so. Indeed, the UN Committees, because they have a global competence, consider themselves “above” regional jurisdictions, such as the ECHR. Finally, UN Committees, such as the CRPD, are specialised in the protection of certain rights, or categories of persons, while the ECHR is non specialised, so that the former consider they should determine the international norm in their field. It would therefore be up to the ECHR to fall into line with the CRPD on the rights of persons with disabilities, and not the other way around. An evidence of that is that the CRPD took the initiative to examine a draft European convention on involuntary placement, to[77\ hen called on European states “to oppose” it on the grounds that this text did not respect the rights of people with disabilities.
Anyway, in the current case, the lawyers of Vincent Lambert’s parents made sure that different legal questions were submitted to the Strasbourg Court and the Geneva Committee. Moreover, in 2015, the ECHR had refused to adjudicate on a series of serious human rights violations, such as the deprivation of care of Mr Lambert, his confinement or the refusal to transfer him to a specialized unit. These questions have so far received no response from international bodies.
The question of hydration and nutrition
On the merits, Vincent Lambert’s parents can avail themselves of many provisions of the UN Convention, such as the right to life, the right to care, or the right not to be locked up. More specifically, Article 25 prohibits states from “discriminatory denial of health care or health services or food and fluids on the basis of disability”. This means that States cannot deprive a person of his nutrition or hydration because of his disability: yet, this is precisely what Dr. Sanchez, at the Reims University Hospital, decided to do, with the approval of the French authorities.
The CRPD also stated that “the right to life is absolute, and that substitute decision-making in regard to the termination or withdrawal of life-sustaining treatment is inconsistent with this right.” (Consideration the report submitted by Spain, 19.10.2011).
The Committee could thus note multiple violations of the Convention by France. Such a decision would not be incompatible with that taken by the ECHR in 2015, but would complete it. Indeed, not only had the ECHR remained silent on several points, but it had also avoided saying whether nutrition and hydration are or are not treatments that can be stopped. It had simply invoked a “lack of European consensus” on this central question, to wash its hands and abandon Mr. Lambert to death. Article 25 of the Convention on the Rights of Persons with Disabilities, which the ECHR had omitted to mention, now answers this question.
In the event of a “conviction” of France, the Committee will indicate to the Government a series of specific measures to be taken to repair the violation found and remedy its causes. The Government shall then, within six months, submit to the Committee a written reply indicating the measures taken as a result. These will then be verified and evaluated by the Committee, which, if it deems them insufficient, will sue the French Government until it has given satisfaction.
The procedure could last 6 years
Thatever the outcome of the case, it is almost certain that it will last a long time in Geneva, perhaps six years, which is the average length of procedures before the Committee.
This raises the question of Vincent Lambert’s fate during all these years. He cannot decently remain locked in a palliative care unit unsuited to his condition and deprived of specific care that is dispensed daily in specialized units. This is an intolerable situation denounced by 70 doctors specialized in the care of people with altered consciousness. They said on April 19, 2018 in an opinion published in Le Figaro that Vincent Lambert should be treated like all people with this disability, and not be treated as a dying man that he is not. They insisted on the fact that he is not the object of therapeutic obstinacy.
They know that if Vincent Lambert were abandoned to death, their 1,700 patients may suffer the same fate, out of “compassion” and concern for budget savings. Moreover, they will no longer be regarded as patients, but as dead weight.
At stake: the conception of human life and dignity
What is eventually at stake in the Lambert case is indeed the conception of man and of his dignity. That’s why it’s so emblematic and controversial. The choice of everyone, but also of judges, in favour of his life or death, stems directly from one’s conception of human life and dignity. One tends to opt for death or life depending on whether one is materialistic or humanist, an atheist or a believer.
For some, “life” has no value in itself; purely biological, it is worthy only proportionally to the human consciousness which animates it. For others, on the contrary, the life of every man is “human,” and has the same dignity, whatever one’s health condition.
It is this universal and egalitarian conception of dignity that founded the Universal Declaration of Human Rights in 1948 and the subsequent texts, when they declared dignity “inherent” to every human being and prohibited discrimination on the grounds of disability or health condition. To describe dignity as inherent means that it is possessed by man because he is human, and not because of the decision of a judge. This also applies to the “right to life” which is the only right described as “inherent to the human person” by the International Covenant on Civil and Political Rights (article 6).
In 1949, René Cassin, the father of the Universal Declaration, had signed a declaration of the Académie des sciences morales et politiques rejecting “absolutely all methods with the aim of causing the death of subjects considered monstrous, malformed, deficient or incurable”, considering “euthanasia and, in a general way, all methods which have the effect of provoking a “soft and quiet” death, by compassion, of the moribund, must also be rejected”, without which, the doctors would be granted “a kind of sovereignty over life and death” (14 November 1949).
It is therefore with right that five judges of the ECHR were able to deplore, regarding the “frightening” Lambert judgment of 2015, that it marked “a retrograde step in the degree of protection which the Convention and the Court have hitherto afforded to vulnerable people”.
We can hope that the CRPD will be able to see Mr. Lambert as a “disabled person,” with his particular rights and needs, and no longer as a dead-weight. It is to be hoped that, since it is composed of experts in the field, some of whom are themselves disabled, this Committee will declare that it wants to combat “prejudices against persons with disabilities as being a burden on society” (General Comment No. 6, 2018).
It must be admitted, it is often the believers, especially Christians, who maintain a keen sense of the dignity of human life and who oppose euthanasia. This is often criticized as a mark of opprobrium.
Journalists continually point to the Catholic faith of the Lambert parents as infamous. But this is not a coincidence, because for believers, the life of every man is a gift from God. Admittedly, we must not desperately persist to retain it, but we cannot deliberately impair the life of an innocent person, be he unconscious.
It must be remembered that it was already the Catholics who alone had the courage to publicly denounce, even in court, the systematic euthanasia of the mentally ill in Nazi Germany. Euthanasia which were due to dehydration and progressive malnutrition, motivated by this same materialistic and atheistic ideology.