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Legality of a Contractual Waiver of Human Rights in the European context

Rajamae, Heidi LU (2011) JAMM04 20111
Department of Law
Abstract
An indication of the problematic consent in a private relationship was given by judge Pettiti in his concurring opinion in Laskey, Jaggard and Brown v. The United Kingdom. The applicants were accused and convicted for sado-masochistic acts on themselves and on other, consenting people in private. One of the applicants' claim was that those acts were conducted by willing adult participants. The Court solved the case by answering positively to the question whether the measure in the criminal law was necessary in a democratic society for the protection of health in the meaning of Article 8 paragraph 2.3 In his concurring opinion, judge Pettiti brought out:"The case could have been looked at differently, both in domestic law and subsequently... (More)
An indication of the problematic consent in a private relationship was given by judge Pettiti in his concurring opinion in Laskey, Jaggard and Brown v. The United Kingdom. The applicants were accused and convicted for sado-masochistic acts on themselves and on other, consenting people in private. One of the applicants' claim was that those acts were conducted by willing adult participants. The Court solved the case by answering positively to the question whether the measure in the criminal law was necessary in a democratic society for the protection of health in the meaning of Article 8 paragraph 2.3 In his concurring opinion, judge Pettiti brought out:"The case could have been looked at differently, both in domestic law and subsequently under the Convention. Can one consider that adolescents taking part in sado-masochistic activities have given their free and informed consent where their elders have used various means of incitement, including financial reward?"
The European Court of Human Rights has developed a standard of legality of a waiver of a human right. However this standard is applied only in cases a waiver has been conducted by a person in public law relationship.
If someone wishes to give up the right he is entitled to, he is not absolutely free to do so. Why should the law protect one from oneself? This thesis talks about the protection of human rights when the subject of the right wants to abandon the right. It educes the reasons why it would be important identify a human rights waiver and why it would be legitimate to address human rights waivers, whether conducted in private relationship or public law relationship, the same way. (Less)
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author
Rajamae, Heidi LU
supervisor
organization
course
JAMM04 20111
year
type
H2 - Master's Degree (Two Years)
subject
keywords
waiver, waiving rights, waiving human rights, legality of a waiver, personal autonomy, right to private life, coherency, legitimacy, private law and human rights
language
English
id
1977744
date added to LUP
2011-06-14 16:00:41
date last changed
2011-06-14 16:00:41
@misc{1977744,
  abstract     = {An indication of the problematic consent in a private relationship was given by judge Pettiti in his concurring opinion in Laskey, Jaggard and Brown v. The United Kingdom. The applicants were accused and convicted for sado-masochistic acts on themselves and on other, consenting people in private. One of the applicants' claim was that those acts were conducted by willing adult participants. The Court solved the case by answering positively to the question whether the measure in the criminal law was necessary in a democratic society for the protection of health in the meaning of Article 8 paragraph 2.3 In his concurring opinion, judge Pettiti brought out:"The case could have been looked at differently, both in domestic law and subsequently under the Convention. Can one consider that adolescents taking part in sado-masochistic activities have given their free and informed consent where their elders have used various means of incitement, including financial reward?"
The European Court of Human Rights has developed a standard of legality of a waiver of a human right. However this standard is applied only in cases a waiver has been conducted by a person in public law relationship.
If someone wishes to give up the right he is entitled to, he is not absolutely free to do so. Why should the law protect one from oneself? This thesis talks about the protection of human rights when the subject of the right wants to abandon the right. It educes the reasons why it would be important identify a human rights waiver and why it would be legitimate to address human rights waivers, whether conducted in private relationship or public law relationship, the same way.},
  author       = {Rajamae, Heidi},
  keyword      = {waiver,waiving rights,waiving human rights,legality of a waiver,personal autonomy,right to private life,coherency,legitimacy,private law and human rights},
  language     = {eng},
  note         = {Student Paper},
  title        = {Legality of a Contractual Waiver of Human Rights in the European context},
  year         = {2011},
}