In July last year, the European
Court of Human Rights (ECtHR) rapped Italy across the knuckles for not having
either marriage or registered civil partnerships (civil unions for short)
available to same-sex couples, which it said was discriminatory as it denies
such couples the opportunity to achieve legal recognition of their
relationship.
After a fractious debate that saw PM Matteo Renzi turning the
issue into one of confidence in his government, the Italian Senate voted last
week to introduce civil unions (hitherto not on the books at all) open to both
‘hetero’ and ‘homo’ couples. The lower house of parliament will assuredly
follow suit.
Viva l’Italia! – until the
ECtHR went in to bat for the gay lobby…
The ECtHR is an organ of the
Council of Europe (not to be confused with the EU – the Council of Europe has
47 member states including the 28 EU countries). Its remit is the
interpretation and application of the European Convention on Human Rights
(ECHR) and associated Protocols. Cases can be brought to the ECtHR by states or
by individuals (singly or in groups) against member states for alleged
infringements of Convention rights. Despite not being a truly ‘international’
court such as the International Court of Justice, the ECtHR’s pronouncements
are widely regarded as authoritative and have a significant impact on legal thinking
at the international level. When the ECtHR speaks, everyone listens. But they
don’t have to obey: member states including the UK and Turkey have spurned the
Court on occasion. This tends to happen when a member state feels that the
Court is trying to exercise undue influence over the way it conducts its
domestic affairs. Which, I believe, is exactly what has been going on here.
Over the past few years, cases
have been brought to the ECtHR by same-sex couples claiming to be discriminated
against by their countries. The ECtHR has not been a push-over for the
same-sex marriage lobby. In Schalk and Kopf v Austria 2010,
the Court held that Article 12 of the ECHR (Right to marry) clearly targeted
male-female marriage. In Gas and Dubois v France 2012, the Court
came down firmly against the proposition that there is a right to same-sex
marriage embedded in the ECHR.
International law generally
regards marriage as a matter for national law-makers to deal with, and is
invoked only where stipulated standards of human rights are breached, such as
those pertaining to gender equity. On the whole, what a country’s law-makers
decide on in this context comes within the ‘margin of appreciation’ – the
leeway that sovereign nation-states enjoy when making law. The same ‘margin of
appreciation’ presumably applies to ‘registered civil partnerships’ – Italy is
one of 8 EU states that did not have civil union on their books, and many other
Council of Europe members don’t either.
The Italians are entirely within
their rights to deny same-sex couples access to marriage. As for civil union,
that was not available to anybody because it didn’t actually
exist in Italian law, and so it would be nonsensical to argue that a specific
group was being denied access to it. (As an aside, numerous Italian
municipalities have been offering civil unions to both kinds of couples under
their own bye-laws for quite some time, but those are not recognised outside
the awarding municipality.) Furthermore, the national parliamentarians would have
been acting within their rights were they to have brought civil unions into
existence only for ‘hetero’ couples. So why did the ECtHR rap Italy across the
knuckles last year?
To return to where we began, the
bone of contention was that there were no provisions at all enabling
same-sex couples to achieve legal recognition of their relationship. The
message the Court sent Italy was clear enough: others have done it, so why not
you? But quite a few ‘others’ have not. Numerous commentators have made noises
along the lines that Italy was the only ‘major’ European country to not have
jumped on the same-sex relationship legalisation bandwagon. There has been an
awful lot of question-begging and cajoling here that I for one don’t regard as
kosher. And I definitely detect a shift in the Court’s position towards
advocacy in favour of the legal recognition of same-sex relationships.
ECtHR judges – getting too big
for their boots!
The Court was clearly forcing the
Italians’ hand: either legislate for same-sex marriage or for
civil unions open to same-sex couples or we’ll declare you guilty
of discrimination. Granted, the Italian Constitutional Court had already said
much the same thing, but that’s between the Italian Constitutional Court and
the Italian parliament – a matter of relations among the trias politica of
a sovereign state. In wagging the finger in this manner, the ECtHR crossed the
line from evaluating the compliance of national law with the ECHR to dictating
to member states what to legislate on in relation to their domestic affairs.
In the end, the Senate law-makers
capitulated. PM Renzi is pleased because he was supportive of the legislation –
he called it ‘historic’. But a great many people are not pleased, including
the gay lobby as the bill had to be watered down by removing a clause
that would have enabled ‘stepchild adoption’ where one of the partners is the
biological parent. Polls indicate that Italians on the whole are averse to
homosexual couples having children, and many felt that ‘stepchild adoption’
would be a step on the way to their using surrogacy to have kids. Surrogacy is
a no-no in Italy for anyone, conservative firebrand Angelino Alfano speaking
for many when he referred to surrogacy as a ‘sex crime’ and advocated tossing
people who use surrogates in jail.
There is already talk of a
Constitutional Court challenge to the removal of the ‘stepchild adoption’
provision for same-sex couples, and if that fails you can bet your bottom
dollar that the ECtHR will get involved again – and will decide in favour of
the litigants, given that the Italians have left themselves wide open to a
charge of not treating same-sex couples ‘equally’.
Angelino Alfano: “It was a beautiful gift to Italy to have
prevented same-sex couples from having a child, as nature prevents that.” But I
doubt whether the ECtHR will concur…
I maintain that the ECtHR
overstepped the mark. They should not stick their noses into member states’
domestic affairs except where domestic legislation blatantly violates clear
human rights norms that those countries have signed up to – and that was most
certainly not the case in this instance. I was disappointed to see the Italian
national law-makers caving in – they should have stuck to their guns and told
the ECtHR to get stuffed, as others have done before them. In yielding, they
have surrendered part of their sovereignty. Unfortunately, ‘sovereignty’ seems
to count for precious little when the ‘human rights’ Trojan Horse is harnessed
to a fashionable social cause being aggressively promoted by a vociferous
minority that enjoys a high media profile.
Barend Vlaardingerbroek BA,
BSc, BEdSt, PGDipLaws, MAppSc, PhD is associate professor of education at the
American University of Beirut and is a regular commentator on social and
political issues. Feedback welcome at bv00@aub.edu.lb
1 comment:
Who will rid us of these troublesome European Priests.
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