Equal Marriage, Unequal Civil Partnership: A Bizarre Case of Discrimination in Europe

The fact that heterosexual couples still cannot form civil partnerships after the introduction of gender-neutral marriage contravenes Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Albeit optional under the Convention (like adoption, parental leave or child benefits), civil partnership is an institution engaging the right to respect for family life and its domestic regulation demands conformity with Convention principles, including non-discrimination. This article contrasts states' wide margin of appreciation in matrimonial matters under Article 12 with the limited discretion under Article 8 and discusses the strict proportionality test applicable to differences in treatment exclusively based on sexual orientation. It dismisses the justifications espoused by executive and judicial authorities in recent litigation for the indefinite postponement of reform, namely the overestimated costs of legislative amendment, the subordination of the equality principle to the number of takers, and attempts to gauge social demand through post-2014 statistics on gay partnerships. Finally, it provides arguments for removing discrimination by opening civil partnership to opposite-sex couples rather than abolishing it: obviating hardship for family units lawfully constituted abroad, ensuring privacy for individuals whose disclosure of civil status reveals sexual orientation, and fostering a pluralist, tolerant society, accommodating ideological objections to marriage

Adult Children and Elderly Parents in Strasbourg Proceedings: A Misconstrued Approach to ‘Family Life’

This article criticizes the exclusion of the relationship between parents and adult children from the purview of Article 8 ECHR in Strasbourg judgments, save for exceptional cases of dependency, narrowly defined (in practice reduced to disability). The author notes that this restrictive approach has been developed in the politically sensitive area of immigration policy and might stem from judicial pragmatism. She supports a more inclusive interpretation of ‘family life’, on two grounds. Firstly, it would align the Court’s stance on adult relatives with its well-established purposive reading of the notion of ‘family life’. In fact, family arrangements between adult relatives usually continue to exhibit the ‘signposts’ of family life identified in landmark decisions: genetic filiation, emotional bonds and effective ties; moreover, in cases without a cross-border element, the Court has recognised the applicability of Article 8 to close bonds with near relatives, such as grandparents. Secondly, bringing adult relatives within the scope of Article 8 would avoid the gap between the legal interpretation of ‘family life’ and the sociological understanding of the family as a group defined by a shared identity, caring, economic cooperation (including financial support, domestic labour, childcare and elderly care), sometimes co-residence. Whilst the Court may accommodate legitimate State interests when assessing the merits of a complaint, the failure to acknowledge the relationship between parents and adult children as ‘family life’ at the admissibility stage does not reflect social reality and prevents any judicial scrutiny over measures interfering with the normal development of such relationships

Trading Justice for Security? UN Anti-terrorism, Due Process Rights and the Role of the Judiciary: Lessons for policy makers

Policy-makers, domestically and in international fora, tend to address counterterrorism and human-rights protection in terms of competitive goals. In the post-9/11 political climate dominated by security concerns, the suppression of the financing of terrorism is given priority over suspects’ rights. The current procedures established by the UN Security Council for the freezing of funds of terrorist suspects encroach upon several individual rights. The most severe infringement upon the rights of persons targeted by the UN sanctions derives from the lack of a secure avenue of appeal. The denial of access to justice has been fostered for several years by the deference of national and regional courts to the UN Security Council. Recent developments at European Union level demonstrate that judicial decisions can shape counter-terrorism policies

The Blanket Ban on Assisted Suicide: Between Moral Paternalism and Utilitarian Justice

The article analyses the ramifications of the Supreme Court’s 2014 Nicklinson judgment. It argues that the majority approach to a declaration of incompatibility as judicial incursion into legislative territory does not rest convincingly on the distribution of power envisaged by the Human Rights Act. Contrasting the domestic courts’ wider prerogatives to develop human rights with the self-restraint of the Strasbourg Court, driven by the margin of appreciation, the author contends that the judgment fails to protect the right to personal autonomy. Unlike the Strasbourg Court, reserved in matters pertaining to the sensitive field of bioethics, where no European consensus can legitimise progressive judgments, domestic courts have more leeway to signal to the legislature that the manner in which discretion was exercised does not strike a fair balance between competing interests. A development in this direction would find support in the general Strasbourg approach to blanket bans in other controversial areas

L’applicazione della dottrina ‘clean hands’ all’esercizio della protezione diplomatica (The Application of the ‘Clean Hands’ Doctrine to the Exercise of Diplomatic Protection)

Sommario: 1. La dottrina delle “mani pulite” da massima di equità nella common law a principio di diritto internazionale: la sua rilevanza nelle controversie interstatali alla luce della giurisprudenza della Corte Internazionale di Giustizia. 2. Il significato specifico della regola nelle controversie interstatali “indirette” derivanti da ll’esercizio della protezione diplomatica. 3. La regola delle “mani pulite” negli scritti giuridici e nei lavori di codificazione della Commissione di Diritto Internazionale. 4. Conclusioni: inesistenza della regola quale causa di inammissibilità, applicazione marginale nell’esame del merito delle controversie e non auspicabilità della sua codificazione a titolo di sviluppo progressivo

ECHR: Right to marry

The right to marry is guaranteed under the European Convention on Human Rights ECHR)in art.12, which reads: "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right". This provision was given effect in the UK through the enactment of the Human Rights Act 1998, which incorporated ECHR rights, allowing domestic litigants to rely on them before the British courts. The express referral to "national laws" in art.12 indicates that States may legitimately impose restrictions on the exercise of this right, such as bars on marriage between persons who fall within the prohibited degrees of a relationship, a minimum marriageable age, and the requirement to comply with certain formalities for the valid celebration of marriages. The Convention institutions maintain, nevertheless, the power to scrutinise any such restrictions, and ensure that domestic law strikes a fair balance between the prevention of objectionable marriages and the protection of individual rights against social prejudice. Controversial issues in this area include same-sex marriage, polygamous, underage and religious marriage within ethnic minority communities, transsexuals' right to marry according to the newly acquired gender, the suspension of the exercise of the right in circumstances involving deprivation of liberty, the right to re-marry, and the right to divorce and re-acquire the capacity to marry

Le principe de non-discrimination dans la nouvelle Charte arabe des droits de l’homme: une réforme inachevée

1. Aspects introductifs : relevance internationale du principe et tentative de mise à niveau de la Charte arabe. 2. Une amélioration incontestable : la clause de nondiscrimination (article 3, alinéas a) et b)) et le principe de l’égalité devant la loi (article 11). 3. L’introduction de la parité des sexes (article 3 alinéa c)) et les droits de la femme dans les rapports familiaux (article 33) : des dispositions problématiques. 4. Les discriminations manifestes contre les non-ressortissants (articles 24 f), 34 a), 36, 41). 5. Considérations conclusives : les espoirs de modernisation sous le spectre des principes chariatiques prémodernes