ECHR Same-Sex Partnership Protection Issues and Implications for China
DOI:
https://doi.org/10.54691/fhss.v3i10.5680Keywords:
European Court of Human Rights; Same-Sex Partnerships; Evolutionary Interpretation; National Discretion; Relativity of Human Rights.Abstract
The European Court of Human Rights (ECHR) has gradually developed from the non-recognition of same-sex partnerships to requiring member states to recognize and actively obligation to protect same-sex partnerships. From the series of cases of protecting same-sex couples published by ECHR, it can be seen that the ECHR protection of same-sex couples presents the characteristics of taking the new European consensus as the premise,expanding the scope of protection through evolutionary interpretation, and protecting same-sex couples by applying the principle of discretion and proportionality at the same time. The ECHR protection of same-sex couples has the problem of simply equating "new consensus" with the minimum standard of human rights protection,the conflict between the application of evolutionary interpretation and the principle of state consent, and the unclear scope of national discretion. From the characteristics and problems faced by the ECHR protection of same-sex couples, the rationality of the relativity theory of human rights protection in China has been further confirmed. In addition, it provides inspiration for China to avoid judicial creation in the interpretation of treaty evolution, and to respect the discretion of sovereign states to the greatest extent within the scope of national discretion.
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References
hai Dothan:The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights, FORDHAM INT'l L.J,vol .42 (2019)No.3,p765.
Paul Johnson:Homosexuality and the European Court of Human Rights[M].Oxford:Taylor&Francis Ltd,2012:20.
X.v.the United Kingdom,no.7215/75,Commission decision,7 July 1977.
Ed Bates:The Evolution of the European Convention on Human Rights:From its Inception to the Creation of a Permanent Court of Human Rights[M].Oxford:Oxford University Press,2010:198-201.
Dudgeon v.the United Kingdom,no.7525/76,22 October 1981.
Oliari and Others v.Italy,nos.18766/11 and 36030/11,21 July 2015.
Tyrer v. United Kingdom, ECHR (Application No. 5856/72), Judgment of 25 Apr. 1978.
Loizidou v,Turkey,20 EHRR,1995.
Loizidou v, Turkey, 20 ehrr, 1995,paras.71-74
Kozak v.Poland,no.13102/02,2 March 2010.
U.S. State Dep't Human Rights Report, supra note 16, at 18.
RUSSIAN LGBT NETWORK, MONITORING OF DISCRIMINATION AND VIOLENCE BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN RUSSIA IN 2016-2017, at 5 (2018), https://old.lgbtnet. org/sites/default/files/discrimination.pdf.
See "Recognizing Same-Sex Unions Brings Us Closer to the Apocalypse" Head of Russian Orthodox Churh, RT (July 22, 2013, 7:55 AM), https://tinyurl.com/yd7wh555.
A and others vs.UK,Application No.34438/04,Judgment 19 February 2009.
Paul Mahoney:Marvellous Richness of Diversity or Invidious Cultural Relativism, Human Rights Law Jour-nal,Vol.19(1998),No1,p.1.
Simon Paul:Governing from the Margins: The European Court of Human Rights Margin of Appreciation Doctrine as a Tool of Global Governance,Croatian Yearbook of European Law and Policy, Vol. 12(2016), No. 12, pp. 81-118.
Fan Jizeng: The function and logic of the European Court of Human Rights’ application of the principle of proportionality [J]. European Studies, Vol.2(2015),No1,pp.94-117.
Shai Dothan: The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights, FORDHAM INT'l L.J,Vol.42(2019),No1,p765.
Dean Spielmann:Allowing the Rights in the European Court of Human Rights and National Margin of Appreciation Doctrine-Waiver or Subsidiarity of European Review, CELS Working Paper, 2012,p. 3.
Hodson L.A Marriage by Any Other Name?Schalk and Kopf v.Austria[J].Human Rights Law Review, 2011,11(1):170–179.
Masuma Shahid: The Right to Same-Sex Marriage:Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights[J]. Erasmus Law Review,Vol10(2018),No3,pp184-198.
Wu Ka:Theory and Practice of Evolutionary Interpretation of International Treaties [M], Law Press, 2016, p. 30.
Wu Ka:Theory and Practice of Evolutionary Interpretation of International Treaties [M], Law Press, 2016, p. 28.
Wu Ka:Theory and Practice of Evolutionary Interpretation of International Treaties[M], Law Press, 2016, page 28.
Qiu Jing:The relativity between the practice of the European Court of Human Rights and human rights protection [J],International Forum, 2019.
See SS Wimbledon (United Kingdom and others v Germany) (Judgment) [1923] PCIJ Series A No 1, p. 25.
Armin von Bogdandy and Ingo Venzke, International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance(Springer, 2012), pp.6-7.
Huang Jianyun: Sovereignty factors in the interpretation of international treaties - Imbalance and reconstruction of balance in the "Yukos Case" [J]. Journal of International Law, 2021.
See Lin Li: "Legal Methodology and Dworkin", China University of Political Science and Law Press, 2002 edition, pp. 2-3; also see Wang Bin: "On the Coherence of Legal Interpretation - Comment on Dworkin's View of Legal Truth" , "Legal System and Social Development", Issue 5, 2007, Page 84.
Huang Jianyun:Sovereignty factors in the interpretation of international treaties- Imbalance and reconstruction of balance in the "Yukos Case" [J]. Journal of International Law, 2021.
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