Venturing into âMega-politicsâ at Strasbourg: The New Right to a Same-Sex Registered Partnership

Helen Fenwick

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Chapter 10 Venturing into âMega-politicsâ at Strasbourg: The New Right to a Same-Sex Registered Partnership

In: European Yearbook on Human Rights 2024

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Helen Fenwick

Helen Fenwick
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Type:: Chapter

Pages:: 278â316

DOI:: https://doi.org/10.1163/9789004708389_011

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Abstract

This contribution will consider interventions of the Strasbourg Court in the highly controversial matter of the provision of a formalised relationship status for same-sex unions â which arguably could be termed ventures into judicialised âmega-politicsâ. Within the scope of that example, it will consider some academic views on the judicialisation of political issues of âoutright and utmost political significance that often divide whole politiesâ â colloquially, so-called âculture warsâ. In particular, it will consider whether, in relation to a right to formalisations of same-sex partnerships, such judicial engagement could appear to undermine the authority of the Court, since its rulings in the mega-political arena might be disregarded and state support for the Court might diminish. This piece takes the pertinent example of the emergence in 2023 of a right to a same-sex registered partnership, under Article 8 ECHR read either alone or with Article 14, in order to consider whether the decisions of the Court on the matter should be characterised as âjudicialised mega-politicsâ and whether, if so, the Court has potentially undermined its authority by creating the new right. It argues that in this particular context, due in part to forces opposing the introduction of such a right, including religious ones, Strasbourgâs interventions can be justified. Such forces, it argues, undermine the potential democratic legitimacy of governmental and legislative decision-making in certain contracting States, meaning that if the Court had held back from venturing into mega-politics in this context, the expectation that democratic decision-making could improve the lot of same-sex couples in such States would not be answered to. But this contribution will also argue that the Court has sought to obviate the risks associated with its venture by relying heavily on reference to a consensus among the contracting States as to the anti-discrimination standard on this issue, appearing to seek to ensure thereby that its authority is not impaired. It concludes therefore that criticism of the judicialisation of political issues is not fully borne out by the Courtâs incursion into this particular area.

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European Yearbook on Human Rights 2024

Series:Â European Yearbook on Human Rights, Volume: 1

E-Book ISBN:: 9789004708389

Publisher:: Brill | Nijhoff

Print Publication Date:: 07 Mar 2025

Subjects
- Human Rights and Humanitarian Law
  - Human Rights
- International Law
  - International Law: Regional Perspectives

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Part 1 Human Rights Developments in EUROPE and Beyond

Part 2 Jurisprudence by the Courts

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Chapter 10 Venturing into âMega-politicsâ at Strasbourg: The New Right to a Same-Sex Registered Partnership

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European Yearbook on Human Rights 2024

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Chapter 10 Venturing into âMega-politicsâ at Strasbourg: The New Right to a Same-Sex Registered Partnership