2010: year of “profound moral views”?

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.[1]  

 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. Continue reading

Same-sex marriage case should go to the Grand Chamber: more on Schalk and Kopf v. Austria

Gay rights are one of the human rights issues of our time. The Strasbourg Court came out with an important but ultimately disappointing ruling on same-sex marriage last week (for a summary of the case, see Lourdes’ post). It is disappointing both for the reasoning and for the outcome (see below). Despite the fact that a case like this had clearly been coming for a long time, the Chamber’s ruling is sloppy and leaves much to be desired. Add this to the fact that the judges were divided by 4 to 3 on the issue whether Austrian law was discriminatory and I think this case is ripe for the Grand Chamber.

The judgment is not all bad. The Court takes an important step in recognizing that same-sex relationships can fall under the category of “family life” (art. 8). One might interpret this ruling as a “hidden but hopeful” message that same-sex marriage laws will someday – when a sufficiently strong European consensus exists on this issue – be legally required by the Court.

Still, I am more somber regarding the instrumental value of this judgment (as it stands) in the struggle for gay equality; I think that the signal that the majority sends is too weak to provide much support for the gay movement. My main concern is the lack of a finding of discrimination. Continue reading