June 08, 2011
Together with Lourdes and Stijn, I’ve just attended the Grand Chamber hearing in the case of Konstantin Markin v. Russia. We’ve blogged about this case here and here. Just to refresh your memory: the case concerns a military serviceman, Konstantin Markin, who was divorced from his wife and who had custody of their three young children. He applied for three years parental leave, but his request was denied because only female military personnel are allowed parental leave of such duration. The issue in Strasbourg is whether this difference in treatment is allowed because sufficient justifications exist for it, or whether it violates article 14 of the Convention in conjunction with article 8 (the non-discrimination provision in combination with the right to private/family life).
Our research team has taken a keen interest in this case. We – in the form of the Human Rights Centre of Ghent University – have submitted a third party intervention to the Court in this case. Our submission focused on the issue of gender stereotyping and how that is addressed by other instruments of international law. We were expressly asked by the President of the Court not to address the facts or the merits of the case, so our comments had to be of a quite general nature.
Now some first impressions of the hearing. Rather to my surprise, it turned out that we were the only third party intervenors. I expected more intervenors; this is a Grand Chamber case after all. As regards substance, both the council of the applicant and the council of the State did an impressive job pleading their case. The council for the applicant started by pointing out that this case concerns an issue of discrimination so deeply rooted in tradition and custom that it is not even recognized as such. She emphasized that not only military servicemen suffer from the discriminatory rule that does not allow them parental leave, but their wives (who are forced to stay at home) and their children suffer too. In response to a point that was made during an earlier phase in the proceedings by the Government, the council for the applicant made clear that there is nothing positive about discrimination that forces mothers to stay at home while they might not want that, while fathers who would want to stay at home with their children are not allowed to do so.
The central concern of the Representative of the State, on the other hand, concerns the operational effectiveness of the army. They argued that since the number of women in the army is so low, they can afford to give servicewomen parental leave, but cannot afford the same for servicemen without impacting the effectiveness of the armed forces. Quite apart from the question whether the State has the statistics to back this claim up (that appears to be problematic), the point that I find most striking is that by emphasizing the relative unimportance – both quantitatively and qualitatively – of women in the army, the State is reaffirming harmful stereotypes about women through reaffirming a sexual division of labour. In response to a question put by a judge, the council for the State argued that all women are barred from doing certain work in the army, because they lack the necessary strength.
Well, we will have to wait and see what the Grand Chamber says about this case. As is mentioned in our written submissions, I hope the Court will name the problem of stereotyping and recognize the harm that is being done to both men and women through stereotypes. Gender stereotypes should not be permitted to function as justification for a difference in treatment between men and women. Whichever way it goes, submitting a third party intervention and attending a Grand Chamber hearing was a rewarding experience for us.