Thursday, 31 July 2014

New MA thesis available: 'Legal recognition of same-sex family life in the jurisprudence of the European Court of Human Rights'


Aija Valleala, of the Faculty of Law at the University of Helsinki, has produced a Master's Thesis in Constitutional Law which focuses on the jurisprudence of the Court in respect of same-sex family life.

Here is the abstract:

The aim of this master’s thesis is to examine the jurisprudence of the European Court of Human Rights (’the Court’) regarding same-sex couples and families in order to determine how their need for protection and legal recognition has been met by the Court. The primary method applied is legal dogmatics although the study will, to some extent, go beyond the traditional legal dogmatics and try to identify the major problems in, as well as the reasons behind the Court’s current approach. In addition, a de lege ferenda aspect is present in the thesis.

The ‘right to respect for family life’ and the ‘right to marry and found a family’ are human rights that are guaranteed in article 8 and article 12 respectively in the European Convention of Human Rights (‘the Convention’). Furthermore, article 14 provides that enjoyment of these rights shall be secured without discrimination. These rights are protected, at first hand, in the national level in each contracting state, but in case of alleged breach, the European Court of Human Rights (‘the Court’) has the final jurisdiction and its judgment is binding.

This thesis clarifies, through an analysing of the Court’s jurisprudence on same-sex family life, what is the Court’s current position on the legal recognition of same-sex families. Especially the most recent judgments strongly support the conclusion that any discrimination between unmarried different-sex couples and same-sex couples is unacceptable under the Convention. However, the special status of marriage still justifies the continuing exclusion of same-sex families from rights and benefits only available to marital families. Furthermore, the Convention does not require the contracting states to set up any kind of separate legal framework for same-sex couples.

Given that the same-sex families have equal need for affirmation and legal recognition as different-sex families, the situation remains unsatisfactory until the same level of protection is afforded to them. Also, considering how much the Court’s position has evolved in the past twenty years it is very likely that in the coming decades the Court will find that the Convention requires the states to legally recognise same-sex families, first through civil partnership legislation and ultimately through marriage legislation. Meanwhile, it is important that the convention states do not hinder positive development in the field of same-sex family rights only because the Court currently allows them a wider margin of appreciation. Ideally, the contracting states should comply with the evolving human rights standards on their own accord. 

The thesis can be downloaded here:

https://helda.helsinki.fi/bitstream/handle/10138/45286/Valleala%20%20Legal%20recognition%20of%20samesex%20family%20life%20in%20the%20jurisprudence%20of%20ECHR.pdf?sequence=2

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