July 01, 2020
Earlier this week, we received the sad news that Paula Marckx passed away at the age of 94. Having lived a remarkable life as, amongst others, a journalist, model, pilot and entrepreneur, she will be remembered, first and foremost, for the case that bears her name in Strasbourg. Her death, little over a year after the 40th anniversary of the Marckx v. Belgium judgment, offers an occasion to delve into the history of the case and to reflect on the significance of Paula Marckx’s struggle for equal rights for her daughter Alexandra and the implications thereof for the development of European human rights law.
In May 2016, I had the pleasure to interview Paula Marckx myself when preparing for an article on the history of the Belgian cases in Strasbourg during the 1960s, 1970s and 1980s. For this article, I interviewed fifteen applicants and attorneys involved in these cases. Unsurprisingly, given the extent to which her case continues to capture the imagination of Belgian lawyers as well as of anylawyer with an interest in the ECHR , I started off with Paula Marckx. On a Tuesday morning, in her apartment in Antwerp, over a cup of coffee (for me) and a glass of orange juice with rum (for her – “the secret of old age”, I was told), she revisited the history of her case.
In October 1973, at the age of 47, Paula Marckx gave birth to her daughter Alexandra. Being unmarried, her daughter was considered at the time as a so-called “illegitimate” child. Napoleonic family law that was still in place in Belgium at the time discriminated between “illegitimate” and “legitimate” children. Where affiliation was concerned, the legal bond between an unmarried mother and her child was not established by the mere fact of birth, but required a formal act of recognition. In addition, “illegitimate” children were confronted with restrictions on their patrimonial rights, in particular regarding the possibility to receive property from their mother or to inherit from the estate of their mother’s family. Disturbed by the situation, Marckx wrote an angry letter to Strasbourg, famously starting with the words: “Je suis un bébé de dix mois et je porte plainte contre la Belgique” – a letter which she eagerly shared with the Belgian newspapers, triggering quite the media attention.
The European Commission of Human Rights willingly registered the letter as a formal application but recommended Marckx to seek legal assistance in further pursuing her case. Via a befriended journalist, she contacted Moni Van Look, a feminist lawyer who at the time was working as an academic assistant in the area of family law at KULeuven. Van Look from then onwards became the driving force behind the application in Strasbourg. At the time, the European Court of Human Rights had not yet had the opportunity to pronounce itself on the family life aspect of Article 8 ECHR, so the whole case was an exercise in legal creativity. Van Look told me, when I interviewed her in September 2016, that she was surprised by the kind of arguments, linked to Convention articles, she came up with herself and about the fact that ultimately the Court went that far along with her. Indeed, in its judgment of 13 June 1979, the European Court of Human Rights found various violations of Article 8 (the right to respect for family life) alone and in conjunction with Article 14 ECHR (the prohibition of discrimination).
What is the legacy of the Marckx judgment today? Firstly, in terms of immediate legal effects, the judgment resulted in a change of legislation, albeit only in 1987, leading to the equal treatment of children born out of wedlock. Up to today, the judgment and the resulting legal change are arguably considered as the most important feminist court victory in Belgian legal history.
Secondly, the Marckx judgment played an important role in the development of the law of the European Convention on Human Rights. In his magnum opus on the history of the European Convention, Ed Bates rightly lists the Marckx case among the vital cases that contributed to the Strasbourg Court’s “Coming of Age” during the late 1970s. While the Court had already mentioned in passing the possibility of positive obligations in the 1968 Belgian Linguistics Case, it was the Marckx judgment that truly signifies the beginning of the Court’s positive obligations doctrine – up to today, any study (including my own) of this doctrine starts off with a discussion of this judgment.
Thirdly, and perhaps most importantly, the significance of the case lies at the narrative level. Nothing captures the imagination as much as a good story does. The story of a single mother taking on the Belgian State, as a modern version of David vs. Goliath, continues to serve as an example to law school students in Belgium and beyond of what can be achieved via an appeal to European human rights law.
In the abovementioned article on the history of the early cases in Strasbourg, I conclude as follows:
“If, during the period under consideration, going to Strasbourg was an adventure, the heroes were just ordinary people who were however willing to stand out from the crowd to further their cause and to thereby push the development of European human rights law forward to the common benefit.”
Paula Marckx was such a hero. Now more than ever, at a time when populists target the human rights project, we need to continue to tell stories like hers in order to reinvigorate the power of human rights in the face of injustice.
 For an excellent account of her case in English, also see Michael D. Goldhaber’s book A People’s History of the European Court of Human Rights.