January 20, 2011
2010 was a turbulent year for the European Court of Human Rights. The Court has been under fire both for usurping too much power and for achieving too little. The first type of critique is made by conservatives who recycle the old idea that an international court has no legitimacy to judge the situation on the ground in individual states; this year vocally proclaimed in for, for example, the Netherlands (in Dutch) and Russia. The second type of critique – that the Court is doing too little – refers primarily to the huge backlog in cases. The Court is not managing its workload; therefore we saw such initiatives as the Interlaken Conference.
To my mind, the year was characterized by an intense debate about the legal relevance/importance of an individual society’s moral values. The abortion case of A, B and C v. Ireland is the most recent of a series of high-profile cases, all delivered in 2010 and all essentially revolving around the question to what extent the Strasbourg Court should take national morality into account when determining whether human rights violations have taken place in a certain state. Apart from the abortion case, I’m thinking here of cases concerning sexual orientation (Schalk and Kopf v. Austria and Alekseyev v. Russia) and sex discrimination (Konstantin Markin v. Russia). What follows is a brief review and a critique of A, B and C v. Ireland.
A, B and C v. Ireland
In my opinion, the prize for best dissenting opinion of the year goes to Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi for their comments in A, B and C v. Ireland. For a detailed explanation of that case, see the post by my colleague Stijn. Briefly, the case concerns Ireland’s very restrictive abortion regime. The Irish Constitution prohibits abortion and there is moreover a hefty criminal sanction against women who get an abortion. The majority of the Court held that (with regards to the first two applicants) the Irish rules are not in violation of art. 8, and that in determining whether the measures where “necessary in a democratic society” the Irish State has a broad margin of appreciation to make up the balance between the rights of the mother and the rights of the unborn child. The reason this margin is broad is because the Irish people have (presumably) such deeply felt moral views on the subject.
The dissenters give a powerful indictment of the majority opinion: “it is the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law.” (par. 9 of the dissent)
The comments by the dissenters are spot-on, especially in the light of recent case-law, as I will explain now.
2010: Same-sex marriage, gay marches and sex-role stereotypes
This blog has on more than one occasion noted (see here, here and here) the developments that have taken place in the field of the Court’s sexual orientation law in the past year. Not all of the Court’s case law has been positive in my eyes. In Schalk and Kopf the majority of the Court decided that excluding gay couples from the right to marry is not discriminatory. Though I do not agree with this outcome (and much of the reasoning), I would like to take positive note of the fact that the Court attaches weight to the “growing tendency to include same-sex couples in the notion of ‘family’” (par. 93).
However, when the Russian authorities refused to authorize gay marches in Moskow, amongst other reasons because that “would breach the rights of those people whose religious and moral beliefs included a negative attitude towards homosexuality” (Alekseyev v. Russia, par. 60), the Court stepped up to the plate: “it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.” (par. 81)
The Court did a similarly outstanding job when it condemned the State’s reliance on sex-role stereotypes in Konstantin Markin v. Russia. The case concerned the question whether the Russian rule that excluded military servicemen from parental leave and that granted parental leave solely to servicewomen, was discriminatory. The Court that “the reference to the traditional perception of women as primary child-carers [cannot] provide sufficient justification for the exclusion of the father from the entitlement to take parental leave if he so wishes.” (par. 49) It also noted that the legal situation as regards parental leave has evolved in the Contracting States and that “it cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue” (par. 49), and that, therefore, the Government could not claim a broad margin of appreciation.
Prejudicial views are a disqualified form of morality
Going back to A, B and C v. Ireland and the issue of the relevance of moral views, the question is: what sort of moral views should the Court give due weight to and which views should be ignored? Which views have the potential to constitute justifications? The case law of 2010 taught us a lot. The most important lesson is that the Court is unlikely to take on board moral values that in essence express prejudice against a certain disfavored group. And then – when a view is admitted to be relevant – the next question is; what sort of balance should be struck between an individual society’s moral views and the universal aim of effective human rights protection? With the exception of A, B and C v. Ireland, the Court’s case law is clear: if there is a wide European consensus on a certain issue, that decisively narrows the national margin of appreciation.
In a previous post I wrote that the Court should be a catalyst rather than a creator. This is especially true in cases that involve sensitive moral questions. But if – as is the case in the issue of abortion – a clear European consensus consists as to the existence of a human right and the Court does not step up to the plate, one wonders: If not now, when?
 Though one could make a good argument that the backlog in cases is not really the Court’s fault; it is a fault in procedure, for which the Contracting Parties are primarily responsible.
Also, I am well aware that the critique that the Court does too little is not confined to a quantative point; the Strasbourg Observers, among others, have often criticized the Court for not providing enough protection to minorities, which is a more substantive point.