UNIVERSITY OF AMSTERDAM
Legal Recognition of Same-Sex Relationships
A Comparison between the European and Interamerican Human Right Systems
Alma Joy Ridderhof
Master track: Public International Law
Supervisor: Prof. Y. Donders Word count: 14.295 words Date: 15 July 2016
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Table of content
Introduction and methodology ... 2
Chapter 1 Legal obligations under the European human rights system ... 4
1.1 Article 14 Prohibition of discrimination ... 4
1.2 Article 12 Right to marry ... 5
1.3 Article 8 Right to private and family life ... 9
1.4 State obligations ... 12
Chapter 2 Legal obligations under the Interamerican human rights system ... 14
2.1 Articles 1.1 and 24 Non-discrimination ... 14
2.2 Article 17 Family life and marriage ... 17
2.2.1 Right to family life ... 17
2.2.2 Right to marry ... 18
2.3 Article 11.2 Private life ... 19
2.4 Reparations ... 20
2.5 State obligations ... 20
Chapter 3 Similarities and differences between the European and Interamerican system regarding legal recognition of same-sex relationships ... 21
3.1 Similarities... 21
3.1.1 Provisions ... 21
3.1.2 Non-discrimination ... 22
3.1.3 Family life and the right to marry ... 23
3.2 Differences ... 24
3.2.1 Considerations ... 24
3.2.2 Current legal protection granted ... 28
3.2.3 Principle of non-discrimination ... 31
3.2.4 Reparations ... 34
Conclusion ... 36
Bibliography ... 38
Academic literature ... 38
Publications by international organizations and governments ... 40
Case law ... 40
Separate opinions ... 42
Treaties ... 42
2
Introduction and methodology
Legal recognition of same-sex relationships is possible in an increasing number of states. However, the legal recognition of same-sex relationships remains a controversial issue, as many states are not willing to legally recognize same-sex relationships. Far more than only a national issue, the choice of providing for legal recognition of same-sex relationships has become a regional and international issue. Same-sex couples have found their way to different regional human right bodies, where complaints have been filed about the inability to obtain legal recognition for their relationship. Different regional human right bodies have coped differently with questions on legal recognition of same-sex relationships.
As regional human right bodies have found different manners to cope with questions on legal recognition of same-sex relationships it is interesting to compare different regional human right systems. The regional human right system that has most extensively coped with questions on legal recognition of same-sex relationships is the European human right system. The European Court on Human Rights (European Court, ECtHR) has decided on many cases in which same-sex relationships and their legal recognition played a role. This vast case law has led to a complex interpretation of the right to family and the right to marry contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).1 On the other hand, the Interamerican human right system has decided on a limited number of cases regarding same-sex relationships in relation to rights contained in the American Convention on Human Rights (American Convention), but in those cases it became clear that the Interamerican Court on Human Rights (Interamerican Court, IACHR) chose for a different approach than the European Court.2 As such, a comparison between the European and Interamerican human right systems regarding the legal recognition of same-sex relationships is relevant, as it highlights the differences and similarities between the systems and the different approach taken by another Court may serve as inspiration. Currently, the differences and similarities between the legal recognition of same-sex relationships between these two regional human right systems and the inspiration that these similarities and differences could provide have not been studied. Furthermore, in contrast to
1 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November
1950, entered into force 3 September 1953) (ECHR).
2 American Convention on Human Rights “Pact of San José, Costa Rica” (adopted 22 November 1969, entered
3 the European system, the legal recognition of same-sex relationships in the Interamerican system has not been researched elaborately.3
Based on case law of both the European and Interamerican Court and academic sources, this thesis will analyse and attempt to explain the similarities and differences regarding state obligations in relation to legal recognition of same-sex relationships in the European and Interamerican human right systems. For this research an elaborate literature and case law search was conducted. Text word and thesaurus searches were used to minimize the chance of missing relevant articles and cases. Also, searches in other languages, including Spanish, were conducted to include all relevant cases and academic articles. The case law and academic articles will be described in a descriptive manner in the first two chapters, where legal recognition of same-sex relationships in both systems is described. Furthermore, the last chapter of this thesis will be both descriptive and normative, as it will compare the legal recognition of same-sex relationships in both human rights systems and will also include normative parts in which the comparison between both systems will be regarded as an opportunity for both systems to take inspiration from the other system.
This thesis will commence with assessments of the state obligations on the legal recognition of same-sex couples in the European and Interamerican human right systems. Subsequently, the similarities and differences between both systems will be analysed and it will be analysed how both systems can serve as an inspiration for the other human right system.
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Chapter 1 Legal obligations under the European human rights
system
In the European human rights system the questions regarding the legal recognition of same-sex relationships are dealt with under articles 14, 8 and 12 of the European Convention on Human Rights.4 This chapter will discuss the obligations of a state under the European
human rights system on the recognition of same-sex relationships.
1.1 Article 14 Prohibition of discrimination
Article 14 of the Convention has a significantly different nature than other provisions of the Convention, as it complements the substantive provisions of the Convention, without it having independent existence.5 A breach of one of the substantial provisions is not necessary, but article 14 cannot be applied unless the facts in the issue fall within the ambit of one or more of the substantial provisions.6 Also, article 14 can only successfully be invoked if the applicant identifies a comparator group that is in a similar situation, otherwise there will be no discrimination. Specific issues on invocation of article 14 in conjunction with article 8 or 12 will be discussed below, but first some general considerations on the view of the European Court on discrimination on the basis of sexual orientation will be made.
Article 14 prohibits discrimination in the enjoyment of Convention rights and includes a non-exhaustive list of examples of bases of discrimination, in which sexual orientation is not included. However, in its case law the Court established that differences based solely on sexual orientation are not acceptable under the Convention, and thus that discrimination on the basis of sexual orientation falls under article 14.7 In fact, the Court has held that an especially high level of scrutiny is required for complaints about discrimination based on
4 Additionally, the European human rights system protects against discrimination in Protocol 12. The Protocol
prohibits discrimination in the enjoyment of any right set forth by law, thus also in national law. The effects of the wider prohibition have been limited, as the Protocol has been ratified by only a small number of states. Consequently, currently Protocol 12 plays no role in case law on the legal recognition of same-sex relationships and will therefore not elaborately be considered in this thesis.
5 ECtHR, 19 February 2013, X and Others v Austria (no. 19010/07) paragraph 94. 6 Ibid.
7 EctHR, 21 December 1999, Salgueiro Da Silva Mouta v Portugal (no. 33290/96) paragraph 36.; X and Others
5 sexual orientation since sexual orientation concerns ‘a most intimate part of an individual’s life’, which could only be justified by ‘particularly serious reasons’.8
The justification for differentiation hinges on the substantial provision in connection with which article 14 is provoked. In order to justify differentiation the state party must be able to demonstrate that the difference made was prescribed by law and was necessary to meet a legitimate aim. In cases in which article 14 was invoked conjunctly with the right to respect for family life the Court held that the margin of appreciation is especially narrow where there is a difference in treatment based on sexual orientation and that the state must not only prove that the measure chosen is in principle suited for realising the aim sought, but also that it was necessary in order to achieve that aim to exclude certain categories of people.9 The Court has not decided that such a especially narrow margin should also apply in cases where article 14 is invoked conjunctly with the right to marry. This can be explained by the special status given to marriage, which is further explained in section 1.2.
1.2 Article 12 Right to marry
Article 12 provides: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’.10 The wording of the right to marry is troublesome for same-sex couples because, firstly, it explicitly provides that men and women have the right to marry, secondly, it connects the right to marry to founding a family and thirdly, the provision hinges on national law.
First, article 12 refers to ‘men and women’, which could be problematic for the admissibility of same-sex cases. The Court is not consistent on the admissibility of same-sex relationship cases under article 12. In the Schalk and Kopf case the Court has decided that same-sex marriage cases are admissible under article 12.11 However, in the more recent Oliari
and Others v Italy case the Court has found that if same-sex couples complain about the
inability to marry, their cases are inadmissible, because it finds these complaints manifestly ill-founded since it found that there is no consensus among states party regarding same-sex marriage.12
8 ECtHR, 27 September 1999, Smith and Grady v United Kingdom (no. 33985/96) paragraph 89-90.; ECtHR, 22
October 1981, Dudgeon v United Kingdom (no. 7525/76) paragraph 52.
9 ECtHR, 24 July 2003, Karner v Austria (no. 40016/98) paragraph 41.; ECtHR,2 March 2010, Kozak v Poland
(no. 13102/02) paragraph 99.
10 ECHR (n 1), art. 12.
11 ECtHR, 24 June 2010, Schalk and Kopf v Austria (no. 30141/04) paragraph 40-41. 12 ECtHR, 21 July 2015, Oliari v Italy (no. 18766/11 and 36030/11) paragraph 192-194.
6 This ambiguity has resulted in critique from both opponents and advocates of same-sex marriage, both within and outside the Court. On the one hand, within the Court, basing their argument on the provisions on interpretation of the Vienna Convention of the Law of Treaties, judges Malinverni and Kovler argue in a concurring opinion to the Schalk and Kopf case that article 12 is solely applicable to opposite-sex couples.13 On the other hand, the Court has been critiqued by academics for declaring the complaint in Oliari inadmissible, as it was regarded as a step backwards from the earlier Schalk and Kopf case, where the Court found the complaint admissible under article 12, but found no violation.14 The change of position of the Court is remarkable, since its principle argument is the lack of consensus in Europe on same-sex marriage, while the number of states allowing for same-sex marriage has nearly doubled since Schalk and Kopf.15
Even if the Court would accept that same-sex couples are admissible under article 12, does the reference to ‘men and women’ bar same-sex couples from a right to marry? After all, this wording does not have to be problematic for same-sex marriage as this wording can also be interpreted as providing both men and women a right to marry but not necessarily with each other. The Court has decided that the Convention is a flexible instrument, that must be read in light of present-day conditions.16 In Goodwin v United Kingdom the Court held that major social changes had taken place in the institution of marriage since the Convention was adopted and that at the time of the judgement (2002) it could no longer still be assumed that the words ‘men and women’ must refer to a determination of gender by purely biological criteria.17 Later, in Schalk and Kopf v Austria, the Court regarded the choice of wording in
article 12 as deliberate, but it saw the provision in the historical context in which the Convention was adopted, and, like in the Goodwin case, interpreted the provision in the light of present-day conditions.18 Even though the Court reiterates that major social changes had an influence on the understanding of marriage, the Court does not identify a European consensus
13 Concurring Opinion of Judge Malinverni and Judge Kovler, 24 June 2010, Schalk and Kopf v Austria (no.
30141/04).
14 Paul Johnson ‘Ground-Breaking Judgment of the European Court of Human Rights in Oliari and Others v
Italy: Same-Sex Couples in Italy Must Have Access to Civil Unions/Registered Partnerships’ (21 July 2015) ECHR Sexual Orientation Blog <
http://echrso.blogspot.nl/2015/07/ground-breaking-judgment-of-european.html> (15 April 2016).
15 Ibid.
16 ECtHR, 25 April 1978, Tyrer v United Kingdom (no. 5856/72) paragraph 31.; ECtHR, 22 January 2008, E.B.
v France (no. 43546/02) paragraph 92.; ECtHR, 11 July 2002, Goodwin v United Kingdom (no. 28957/95) paragraph 74-75.
17 Goodwin (n 16) paragraph 100. 18 Schalk (n 11) paragraph 55-57.
7 on same-sex marriage.19 Interestingly enough, the Court, just as Goodwin, refers in Schalk
and Kopf to the Charter of Fundamental Rights of the European Union (European Charter),
where the reference to ‘men and women’ was deliberately dropped.20 Taking inspiration from
the Charter, the Court decided that the right to marry must no longer ‘in all circumstances be limited to marriage between two persons of the opposite sex’.21 The Court clarified that such ‘circumstances’ in which the right to marry would be extended to same-sex couples would be determined by national law.22 Consequently, the reference to ‘men and women’ does not bar national legislations from providing for same-sex marriage, but at the same time the interpretation of the Court does not provide a general state obligation to provide for same-sex marriage, as the Court leaves this decision to national legislation. The relation between same-sex marriage and national law will be further dealt with below.
Secondly, article 12 connects the right to marriage to the right to found a family.23 In the Goodwin case the Court held that founding a family is no condition for the right to marry, as ‘the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy’ the right to marry.24 However, according to the Court, no
conclusions regarding same-sex marriage can be drawn on the basis of a disconnection of the right to marriage and the right to found a family.25
Thirdly, the conditions of the right to marry hinge on national law. Of course, all Convention rights depend on national law, as all implementation depends on national law. However, in article 12 explicit reference is made to national law, emphasizing the importance of national law for this particular provision, as marriage gives rise to social, personal and legal consequences in the national context.26 The Court does not oblige Convention States to allow
for same-sex marriage and emphasizes that states have a certain margin of appreciation on this issue. The Court decided that the Convention does not oblige governments to grant same-sex couples access to marriage and that the fact that some states have provided for same-same-sex marriage does not alter this position, as this extension of the right to marry reflects the vision
19 Ibid., paragraph 58.
20 Ibid., paragraph 60.; Goodwin (n 16) paragraph 100. 21 Schalk (n 11) paragraph 61.
22 ECtHR, 16 July 2014, Hämäläinen v Finland (no. 37359/09) paragraph 96.; Schalk (n 11) paragraph 61-63.;
ECtHR, 28 November 2006, Parry & Parry v United Kingdom (no. 42971/05) p. 12.
23 Article 12 provides: Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.
24 Goodwin (n 16) paragraph 98. 25 Schalk (n 11) paragraph 56.
8 on marriage in their own societies, but that this extended right does not flow from an interpretation of the Convention.27 Even though the Court notes that a gradual evolution on
the matter of same-sex marriage is taking place it remains pertinent that states are not obliged to allow same-sex marriage.28 The Court has emphasized that states have a wide margin of appreciation and that the right to marry depends on national law, because the Court observed that marriage ‘has deep-rooted social and cultural connotations which may differ largely from one society to another’.29 Consequently, it sees national authorities are best placed to assess
and respond to the needs of that particular society.30 Therefore, the Court also held that national legislature cannot be criticized under the Convention for not having introduced same-sex marriage legislation at an earlier date.31 However, any limitations introduced by national laws must not restrict or reduce the right in a way or extent that would impair the very essence of the right.32
The wording of article 12 and its interpretation by the Court, make that states are currently not obliged to grant same-sex couples access to marriage. It is uncertain if this standpoint of the Court will change, since it has held that marriage confers a special status on those who enter into it and that marriage gives rise to social, personal and legal consequences.33 However, this special status of marriage is troublesome in same-sex marriage cases in which same-sex couples hold they have been discriminated, because marriage is given ‘untouchable and sacred qualities’ which make it challenging to compare a same-sex relationship to a married couple, which is necessary if article 14 is invoked conjunctly with article 12.34 The Court held that a same-sex couple is not comparable to a married
(opposite-sex) couple, because the legally binding agreement that a marriage entails makes a marriage fundamentally different from other relationships of cohabitation.35 Some scholars have argued
that the Court should allow same-sex couples the right to marry, amongst others because they disagree with the heteronormative view of the Court and see it as an unavoidable step to
27 Hämäläinen (n 22) paragraph 96.; Schalk (n 11) paragraph 63.; Parry (n 22) p. 12. 28 Oliari (n 12) paragraph 192.
29 Schalk (n 11) paragraph 62. 30 Ibid., paragraph 61-62.
31 EctHR, 14 June 2016, Aldeguer Tomás v Spain (no 35214/09) paragraph 90.
32 Ibid., paragraph 49.; Goodwin (n 16) paragraph 99.; ECtHR, 17 October 1986, Rees v United Kingdom (no.
9532/81) paragraph 50.
33 Gas (n 26) paragraph 68.
34 Paul Johnson ‘Marriage, Heteronormativity, and the European Court of Human Rights: A Reappraisal’ (2015)
International Journal of Law, Policy and Family, p. 57.; Francesca Romana Ammaturo ‘The Right to a Privilige? Homonormativity and the Recognition of Same-Sex Couples in Europe’ (2014) 23 Social & Legal Studies 184.
9 achieve legal consistency in accordance with the doctrine of the Convention as a living instrument.36
1.3 Article 8 Right to private and family life
Article 8 of the Convention regards the right to respect for private life, family life, home and correspondence. Same-sex couples have had difficulties obtaining protection under article 8, since the Court initially was reluctant to declare their cases admissible.37 In earlier case law, the Court identified a growing tendency in European states towards legal and judicial recognition of stable de facto partnerships between same-sex partners, but it did not identify much common ground between the Contracting States.38 Therefore, the Court provided the states with a wide margin of appreciation and it decided that same-sex relationships were not protected under the right for family life.39 The Court’s standpoint on admissibility of same-sex relationship cases under article 8 has radically changed. First, the Court decided that a same-sex relationship qualifies as private life, but it could not be recognized as family life.40 Later, the Court found a same-sex relationship falling in the ambit of article 8, but only under the right to respect for one’s home.41 Finally, in Schalk and Kopf v
Austria the Court found a same-sex relationship qualifies as family life.42 The Court argued that the notion of family is not exclusively reserved for marriage-based relationships and that it may include other de facto family ties where the couple is cohabiting.43 Also, the Court identified a growing consensus to allow legal recognition for same-sex relationships.44 Consequently, the Court decided to include same-sex relationships in the concept of family life, making same-sex relationship cases admissible under article 8.45
However, if same-sex relationships can amount to family life, do states then have an obligation to provide for legal recognition of same-sex relationships? The Court clarified that invocation of article 8 cannot be used as a manner to circumvent article 12 and that states have no obligation to provide for same-sex marriage, neither under article 12 nor under article
36 Emanuelle Bribosia, Isabelle Rorive and Laura Van den Eynde ‘Same-Sex Marriage: Building an Argument
before the European Court of Human Rights in Light of the U.S. Experience’ (2014) 32 Berkeley Journal of International Law 4-16.; Ammaturo (n 34) 178.
37 ECtHR, 5 November 1981, X v United Kingdom (no. 7215/75) paragraph 220-221. 38 ECtHR, 10 May 2001, Mata Estevez v Spain (no. 53534/99) paragraph 4.
39 Ibid.
40 EcommHR, 9 October 1989, C and L.M. v United Kingdom (no. 14753/89) paragraph 1. 41 Karner (n 9) paragraph 31.
42 Schalk (n 11) paragraph 90-95. 43 Ibid.
44 Ibid. 45 Ibid.
10 8 and 14.46 However, after the Court declared that same-sex relationships can amount to
family life, some of the Court’s own judges were dissatisfied with the lack of inferences that were drawn from this conclusion.47 Judges Rozakis, Spielmann and Jebens argued that the
Court should have imposed on the state a positive obligation to provide a satisfactory framework that would offer the applicants the protection a family should enjoy.48 The Court seemed to have listened to this critique, as a few years later, the Court held that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships and therefore same-sex couples are in a comparable situation to different-sex couples in regard of a need for legal recognition and protection of their relationship.49 Thus, if legal recognition of a relationship is available outside of marriage, this type of legal recognition must be available for both opposite-sex couples and same-sex couples.50 Even though this is a step forward in legal recognition of same-sex relationships, there is still no positive obligation for states to provide for legal recognition of same-sex relationships. Such an obligation might be expected in the future, as the Court has stressed the importance of granting legal recognition to de facto family life.51 Moreover, in its choice of means when protecting the right to family, a state must take societal developments and changes in the perception of social, civil-status and relational issues into account, including that there are multiple choices and ways when it comes to leading family or private life.52
By emphasizing that states need to take societal developments into account in choosing the means to protect family life, the Court leaves states a certain margin of appreciation. At the same time, however, states need to take due notice of the developments in their national society. In Oliari and Others v Italy the state failed to recognize widespread acceptance in society of same-sex couples and a decision by the highest national court.53
Consequently, the law, which provided no way of legally recognizing same-sex relationships, did not reflect the social reality in which the applicants lived and thus the state violated article 8.54 Thus, a margin of appreciation is provided to allow states to take the national situation
46 Ibid., paragraph 101.
47 Joint Dissenting Opinion of Judges Rozakis, Spielmann and Jebens, 24 June 2010, Schalk and Kopf v Austria
(no. 30141/04).
48 Ibid.
49 ECtHR, 7 November 2013, Vallianatos v Greece (no. 29381/09 and 32684/09) paragraph 78. 50 Ibid.; Also see: E.B. (n 16).
51 ECtHR, 13 December 2007, Emonet and Others v Switserland (no. 39051/03) paragraph 63-63.; X and Others
(n 5) paragraph 145.
52 Kozak (n 9) paragraph 98. 53 Oliari (n 12) paragraph 173. 54 Ibid.
11 into account, but this also means that states are required to take due consideration of developments in their national societies. Furthermore, the Court has held that states enjoy a margin of appreciation in the timing of the introduction of legislative changes and the exact status conferred by alternative means of legal recognition of relationships.55 Again, limits are cast on the margin, as the margin of the state is not whether it introduces legislative changes, but when and with which exact status. However, a margin currently still remains, especially because the Court fails to identify a consensus on legal recognition for same-sex couples. In
Mata Estevez v Spain the Court considered there was a growing tendency towards legal and
judicial recognition of stable de facto same-sex relationships, but there was still a lack of common ground between the Contracting States and consequently states still enjoyed a wide margin of appreciation.56 In Schalk and Kopf v Austria the Court identified that since Mata
Estevez v Spain a ‘rapid evolution of social attitudes towards same-sex couples’ had taken
place, which was affirmed by a growing number of states that provided for legal recognition for same-sex couples and provisions of European Union law that reflected this evolution.57 This growing consensus motivated the Court to include same-sex couples in the notion of family, but states were not obliged to take positive action.58
States, when confronted with a case in which articles 8 and 14 are invoked, often try to legitimize their action by referring to the aim of protecting ‘the traditional family’.59 The
Court has found that protecting the traditional family is in principle a weighty and legitimate reason that might justify difference in treatment.60 However, the Court became more critical
on the aim of protecting the traditional family, since it characterised the aim of protecting the family in the traditional sense as a rather abstract aim and it noted that a broad variety of concrete measures may be used to implement it.61 Furthermore, justifying different treatment
is often also challenging because a comparator group that is in a similar situation can often be found if article 8 and article 14 are invoked. The Court has held that same-sex couples are equally capable of entering into stable, committed relationships and, therefore, they are in a relatively similar situation as different-sex couples in the need for legal recognition and protection.62 Thus, even though the aim of protecting the traditional family is still viewed by
55 Schalk (n 11) paragraph 105 and 108. 56 Mata (n 38) paragraph 4.
57 Schalk (n 11) paragraph 93. 58 Ibid., paragraph 94.; Rozakis (n 47). 59 E.g. Mata (n 38) and Karner (n 9). 60 Karner (n 9) paragraph 40.; Mata (n 38).
61 Karner (n 9) paragraph 40-41. ; Kozak (n 9) paragraph 98, Vallianatos (n 49) paragraph 84. 62 Schalk (n 11) paragraph 99.
12 the Court as a legitimate aim, the more critical stance of the Court regarding this aim and the possibility to find a comparator group make it challenging for the state to justify the differentiation made and often the Court will find that the differentiation was not proportionate or unnecessary.63
Many authors expressed their critique on the current standpoint of the Court on legal recognition for same-sex relationships. First and foremost, the Court’s own judges are critical about the approach chosen. Judges Rozakis, Spielmann and Jebens find that by on the one hand providing that same-sex relationships amount to family life without drawing inferences from this finding and on the other hand finding no violation of article 8 and 14 if no legal framework is provided, the Court leaves same-sex couples with a legal vacuum.64 Also academic scholars regard this legal vacuum as problematic, because it leaves same-sex couples with several areas of uncertainty.65 Furthermore, scholars have critiqued that the Court fails to function as a protector of the rights of minorities against the rule of a majority.66
1.4 State obligations
Currently there is no positive obligation in the European human right system to provide for legal recognition of same-sex relationships. States parties are obliged to provide for Convention rights without discrimination, including discrimination on the basis of sexual orientation.67 The ECtHR has decided same-sex relationships qualify as family life and are thus protected by article 8 of the Convention.68 If legal recognition of a relationship is
available outside of marriage, this type of legal recognition must be available for both opposite-sex couples and same-sex couples.69 However, states are not obliged to provide for
such a type of legal recognition of relationships other than marriage and there is no positive obligation for states to provide for legal recognition of same-sex relationships. Nonetheless, states are obliged to protect family life and they are obliged to take societal developments into account in choosing the means to protect family life.70 Moreover, states are also not obliged to
63 E.g. X and Others (n 5) paragraph 151.;Vallianatos (n 49) paragraph 84-92. 64 Rozakis (n 47).
65 Loveday Hodson ‘A Marriage by Any Other Name? Schalk and Kopf v Austria’ (2011) 11 Human Rights Law
Review, p. 176-178.; Nicholas Bamforth ‘Families but not (yet) Marriages? Same-Sex Partners and the Developing European Convention ‘Margin of Appreciation’ (2011) 23 Child and Family Law Quaterly 128.
66 Carmelo Danisi ‘How Far Can the European Court of Human Rights Go in the Fight Against Discrimination?
Defining New Standards in Its Nondiscrimination Jurisprudence’ (2011) 9 International Journal of Constitutional Law 807.
67 ECHR (n 1) art. 14.; Mouta (n 7) paragraph 36.; X and Others (n 5) paragraph 99. 68 Schalk (n 11) paragraph 90-95.
69 Ibid..; Also see: E.B. (n 16).
13 provide for same-sex marriage.71 The Court provides the states with a margin of appreciation
as it finds the social and cultural connotations of marriage may differ from one society to another.72 However, the right to marry must no longer ‘in all circumstances’ be limited to
marriage between two persons of the opposite sex, as this depends on national law.73 Thus, national legislations can decide to extend the right to marry, but there is no general state obligation to do so.
71 Ibid. paragraph 101.
72 Schalk (n 11) paragraph 61-62. 73 Ibid.
14
Chapter 2 Legal obligations under the Interamerican human
rights system
In the Interamerican human right system questions regarding the legal recognition of same-sex relationships are considered under articles 1.1, 11.2, 17 and 24 of the American Convention.74 This chapter will discuss the state obligations under the Interamerican human
rights system on the legal recognition of same-sex relationships.
2.1 Articles 1.1 and 24 Non-discrimination
The American Convention contains two distinct provision concerning the prohibition of discrimination, namely article 1.1 and 24. The two provisions are applicable in different situations. Article 1.1 prohibits discrimination concerning the rights and freedoms recognized in the American Convention. Article 24, on the other hand, provides for equal protection of the law, without discrimination. The IACHR has clarified that article 24 prohibits discrimination by law and de facto discrimination of not only the rights enshrined in the American Convention, but all laws adopted by a state and their application.75 Consequently, if a State Party discriminates in the respect for or guarantee of a right provided for in the American Convention, the State will fail to comply with its obligations under article 1.1 and the substantive right.76 If the discrimination regards unequal protection by domestic laws, the Court must analyse the case in the light of article 24 of the American Convention.77
The Interamerican Court has attached particularly great importance to the prohibition of discrimination. In an advisory opinion the Court held that ‘the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws’.78 Consequently, a state must in all its acts,
both national and international, act in accordance with the principles of equality and non discrimination and must refrain from actions that in any way, indirectly or directly, are aimed
74 Besides the American Convention, the Interamerican human rights system also knows the Inter-American
Convention against Racism, Racial Discrimination and Related Forms of Intolerance and the Inter-American Convention against All Forms of Discrimination and Intolerance. As neither of the conventions have entered into force they will not be considered in this thesis.
75 IACtHR, 24 February 2012, Atala Riffo y Niñas vs. Chile, paragraph 82. 76 Ibid.
77 Ibid.
78 IACtHR, 17 September 2003, Condición Jurídica y Derechos de los Migrantes Indocumentados (Opinión
15 at creating situations of de jure or de facto discrimination.79 Also, in case law the Court
decided that the state must take affirmative measures to reverse or change discriminatory situations in it society that already exist and that are to the detriment of a specific group of persons.80
Furthermore, in the advisory opinion the Court held that:
‘nowadays, no legal act that is in conflict with this fundamental principle [of equality and non-discrimination] is acceptable, and discriminatory treatment of any person, owing to gender, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. .... At the existing stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens.’81
Even though sexual orientation is not included in the list of grounds of discrimination provided, by including the words ‘or any other status’ the Interamerican Court indicated that the list provided is not exhaustive and sexual orientation could thus be regarded as an ‘other status’.
Also article 1.1 of the American Convention provides a non-exhaustive list with discriminatory grounds. In its case law on sexual orientation the IACHR has decided that the American Convention is a living instrument that has to develop in accordance with evolving times and current living conditions and that the interpretation must be chosen most favourable to the protection of the rights of the American Convention and the human being.82 As such,
the Court has concluded that sexual orientation is protected by the American Convention and falls under discrimination on the basis of ‘any other condition’, which is prohibited by article 1.1 of the American Convention.83
It was a significant step that the Court decided that sexual orientation should be regarded as a prohibited discriminatory ground in article 1.1 of the American Convention.
79 Ibid. paragraph 100-103.; IACtHR, 24 August 2010, Xámok Kásek Indigenous Community v Paraguay,
paragraph 269.
80 Atala (n 75) paragraph 79.
81 Opinión Consultiva (n 78) paragraph 101. 82 Atala (n 75) paragraph 83-84.
16 Two aspects of this decision require special attention. First, the Interamerican Court rebutted the argument by Chile that lack of consensus regarding sexual orientation as a prohibited category of distinction should prevent it from being included as such a prohibited category.84
The IACHR found such lack of consensus an invalid argument, as the Court clarified it will only decide a case on the basis of the stipulations of the international obligations arising from the American Convention.85 As the Court held it will decide its cases only on the basis of the provisions of the Convention and the obligations arising from them, a possible consensus is not a valid consideration since the American Convention does not contain an obligation to consider a possible consensus.86 Secondly, it is interesting that the Court restricts its conclusion on inclusion of sexual orientation as a prohibited category of distinction to article 1.1. Even though the Interamerican Court reiterates in the same case that the principles of equality and non-discrimination are jus cogens and article 24 was also invoked by the claimant, the Court limits explicit inclusion of sexual orientation as a prohibited category of distinction to article 1.1. Consequently, the Court found sexual orientation is a prohibited category of distinction when Convention rights are concerned, but it is unclear whether sexual orientation is also a prohibited category of distinction when rights contained in domestic law are concerned.
By including sexual orientation as a prohibited category of distinction in article 1.1 of the American Convention, the IACHR made differences on the basis of sexual orientation a ‘suspect category of distinction’. In cases where a distinction is made on the basis of a ‘suspect category of distinction’ the distinction is to be presumed incompatible with the American Convention.87 A distinction on the basis of a ‘suspect category of distinction’ can,
however, be justified by the state concerned, if the state is able to provide ‘rigorous and weighty reasons’ for the distinction made.88 The burden of proof is thus reversed and the state
must provide evidence of clear, specific and real harm.89 The Court found such a strict test needed to prevent distinction based on unfounded stereotypes.90
84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. paragraph 124-125. 88 Ibid. paragraph 124. 89 Ibid. paragraph 125.
90 Ibid.; Laura Magi ‘Same-Sex Couples Before the Inter-American System of Human Rights’ in D Gallo, L
Paladini and P Pustorino (eds) Same-Sex Couples Before National, Supranational and International Jurisdictions (Springer 2013) 446.
17
2.2 Article 17 Family life and marriage
The American Convention contains one single provision which contains both the right to family life and the right to marry. Article 17 provides, in the parts relevant for this thesis: ‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. 2. The right of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of non-discrimination established in this Convention’.
2.2.1 Right to family life
In the Atala Riffo case the Interamerican Court has first held that same-sex couples can have family life.91 The Court reasoned that there is no single model for a family and that this
was already accepted by a number of international human right bodies, among which the ECtHR.92 Furthermore, the Court considered the facts of the Atala Riffo family, which was
composed of a same-sex relationships and children from former marriages of both partners.93 The Court concluded that such a family should be protected by both article 11.2 and 17.1 of the American Convention.94
The Atala Riffo case raises a number of questions. Firstly, it is uncertain if all same-sex couples can have family life. In the Atala Riffo case considerable emphasis was put by the Court on the fact that the same-sex couple was raising children together.95 It is unclear if same-sex couples without children could also be regarded as enjoying family life. Secondly, the references made by the Court raise some questions. When the Interamerican Court refers to European case law, it refers amongst other cases to the Schalk and Kopf v Austria case.96 It is interesting that the Court refers to this case, as the facts of the Schalk and Kopf case differ from the Atala Riffo case in the sense that there were no children involved in the Schalk and
Kopf case. A more appropriate reference would be the Gas and Dubois v France case, as the
same-sex couple in that case also raised children together.97 However, reference to the Schalk
and Kopf case could also be interpreted as a signal that the Court might be willing to consider
91 Atala (n 75) paragraph 177. 92 Ibid. paragraph 170-177. 93 Ibid. paragraph 176. 94 Ibid. paragraph 177.
95 Ibid. paragraph 176-177.; Catherine Romero Cristancho and Adriana Muro Polo ‘Derechos Sexuales y
Reproductivos’ (2015) 9 Eunomía, Revista en Cultura de la Legalidad 274-277.
96 Atala (n 75) paragraph 174.
18 same-sex relationships without children as family life. Lastly, it is also interesting to find that the Interamerican Court in its decision to regard same-sex relationships as family life did not consider whether a consensus among its states parties existed.98 Instead, the Court thus
referred to European cases and other human right bodies, but it did not consider a possible consensus among its states parties on recognition of same-sex family life.99
By concluding that same-sex relationships can amount to family life, the family is entitled to protection by society and the state.100 It is however unclear which exact state obligations follow from the obligation to protect the family. It could be argued that this obligation for protection from the state for families should include legal recognition of the family, but this is still undetermined.
2.2.2 Right to marry
Currently, no case has been decided on in substance by the Interamerican Court regarding same-sex marriage, as the Atala Riffo case is currently the only case regarding legal recognition of same-sex relationships.101 The only case brought on same-sex marriage was declared inadmissible, as the complainant had failed to exhaust local remedies.102 In the Atala
Riffo case the IACHR limited its statement about family life for same-sex relationships to the
first paragraph of article 17, while the right to marriage is laid down in the second paragraph of article 17.103 Therefore, there currently is no guidance by the Court on a possible obligation to provide for same-sex marriage.
Based on the provision in the American Convention, article 17.2 is not necessarily limited to different-sex couples. The provision provides for the right to marry for ‘men and women’, which could also be interpreted as two men or two women.104
98 Magi (n 90) 450.
99 Atala (n 75) paragraph 170-177.
100 Article 17.1 provides: The family is the natural and fundamental group unit of society and is entitled to
protection by society and the state.
101 Two other sexual orientation cases were decided on by the Interamerican Commission, namely the Ángel
Alberto Duque v Colombia case and the Homero Flor Freire v Ecuador case. The Duque case has also been
decided by the Court. Neither of these cases dealt directly with legal recognition of same-sex relationships. For more information, see footnote 158.
IACommHR, 2 April 2014, Ángel Alberto Duque v Colombia (Report no. 5/14).; IACommHR, 4 November 2013, Homero Flor Freire v Ecuador (Report No. 81/13). ; IACtHR, 26 February 2016, Duque v Colombia, paragraphs 104-107,124, 138-139.
102 IACommHR, 10 okt 2001, José Alberto Pérez Meza v Paraguay, no 96/01.; Magi (n 90) 442. 103 Atala (n 75) paragraph 177.
104 Article 17.2 provides: The right of men and women to of marriageable age to marry and to raise a family shall
be recognized if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention.
19 Furthermore, article 17.2 emphasizes that the right to marry must be granted in accordance with national conditions as far as those conditions do not affect the principle of non-discrimination.105 A special emphasis is laid on non-discrimination in the wording of the right
to marry, as article 17.2 explicitly states that the right to marry and to raise a family shall be recognized with regard to the principle of non-discrimination as provided for in article 1.1.106 Furthermore, as the Interamerican Court has included sexual orientation as one of the ‘suspect categories of distinction’ in article 1.1, the state must provide weighty reasons to justify why marriage would not be possible for same-sex couples.107 However, justification on the basis of weighty reasons is still possible, so no conclusion on same-sex marriage under the American Convention can be drawn.
2.3 Article 11.2 Private life
In the Interamerican system, complementary to article 17, article 11.2 also protects family life. As the IACHR regards article 17.1 and 11.2 as complementary, its decision that same-sex relationships can amount to family life applies to both article 17.1 and 11.2.108 In cases where a same-sex relationship amounts to family life the rights of article 11.2 must be granted.
Article 11.2 protects the family against arbitrary or abusive interference with private life and family. The Interamerican Court has decided that article 11.2 protects amongst others the right to establish and develop relationships with other persons and a person’s sexual life.109 However, article 11.2 is not, contrary to article 17, an absolute right.110 The rights
contained in article 11.2 can be limited if the limitation is regulated by the law, pursue a legitimate goal and comply with the requirements of suitability, necessity and proportionality, in other words, they must be necessary in a democratic society.111 In the only case on sexual orientation in which this test was used it was demonstrated that this is a hard test to fulfil, especially the requirements of suitability, necessity and proportionality.112 Same-sex relationships that amount to family life are thus also protected against arbitrary or abusive
105 Article 17.2 provides: The right of men and women to of marriageable age to marry and to raise a family shall
be recognized if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention.
106 Ibid.
107 Atala (n 75) paragraph 91-93. 108 Ibid. paragraph 175-177. 109 Ibid. paragraph 162.
110 Ibid. Paragraph 164.; American Convention (n 2), art. 11.2 and 27.2.
111 Atala (n 75) paragraph 164.; IACtHR, 27 January 2009, Tristán Donoso v Panamá, paragraph 56.; IACtHR, 6
July 2009, Escher et al. v Brazil, paragraph 116.
20 interference and while justification for interference is possible, the requirements that must be fulfilled are hard to satisfy.
2.4 Reparations
In the Atala Riffo case, the IACHR has ordered Chile to reward the complainant with unique reparations. Besides monetary compensation, the Chilean government was also obliged to provide for free psychological care for the injured parties, to publicly acknowledge its international responsibility, and to educate public officials on LGBTI issues, human rights and discrimination.113 These unique reparations will be further discussed in section 3.2.5.
2.5 State obligations
Based on current case law states have no positive obligation to provide for legal recognition of same-sex relationships. Same-sex relationships can amount to family life, but it is unclear which state obligations flow from the right to respect for family life.114 Legal recognition of the relationship that forms the basis of the family life concerned would be one way to protect the family, but other methods to protect the family might also suffice. Furthermore, currently there is no clear state obligation to provide for same-sex marriage. However, both provisions concerned could be interpreted in a way that would entail an obligation to provide for legal recognition of same-sex couples. It is, however, unsure if the Interamerican Court would interpret the American Convention in such a manner. In a partly dissenting opinion to the Atala Riffo judgement judge Pérez Pérez expressed that he finds it necessary to allow states a national margin of appreciation regarding the concept of family and who states include and exclude in their concept of family.115 According to Pérez Pérez
states should be able to determine the width of the concept of family and to decide on the national level of inclusion of for example same-sex couples or single parents and their children in the definition of family.116 As this is only the opinion of one judge, we have to wait for a case decided by the Interamerican Court to obtain a definitive answer on legal recognition of same-sex relationships.
113 Ibid. paragraph 252-299. 114 Atala (n 75) paragraph 177.
115Partially Dissenting Opinion of Judge Alberto Pérez Pérez, 24 January 2012, Atala Riffo y Niñas vs Chile,
paragraph 22-23.
21
Chapter 3 Similarities and differences between the European and
Interamerican system regarding legal recognition of same-sex
relationships
In the first and second chapter the legal obligations of states to provide for legal recognition of same-sex relationships in the European and Interamerican human right systems have been described. In this chapter the obligations in the European and Interamerican human right systems will be compared and based on the differences between both human rights systems suggestions for inspiration for both Courts will be provided.
3.1 Similarities
3.1.1 Provisions
The provisions in which possible obligations to provide for legal recognition of same-sex relationships would be contained are very similar in the European and Interamerican human rights systems.117 The Conventions in both systems provide for provisions that
prohibit discrimination and grant the right to marry and the right to family and private life. Although the provisions in the European and American Conventions are worded differently, the content of the provisions is very similar. Of course, the exact content given to the provisions depends on the interpretation chosen by the Courts. In that regard it should be mentioned that the provisions in both human right systems could be interpreted in a way that would derive an obligation for states to provide for legal recognition of same-sex relationships, but neither human rights system expressly provides a positive obligation to provide for such legal recognition. Furthermore, in both human right systems a possible state obligation to provide for legal recognition of same-sex relationships could be interpreted from both the right to marry and the right to family and private life.
As the provisions on the right to marry and the right to family and private life in both human rights systems can be interpreted in a way that would oblige states to provide legal recognition
117 Maria Cecilia Ibañez García ‘El Matrimonio de Parejas del Mismo Sexo en el Sistema Interamericano de
22 to same-sex couples, the interpretation methods of the Courts are important. Both Courts have indicated that their Conventions are living instruments and that the provisions contained in it should be read in a manner that considers current-day conditions.118 The interpretation on the
content of rights conferred in the Conventions can thus change over time. However, both Courts have found very different considerations important in interpreting the rights of the Conventions. This will be further dealt with in section 3.2.1.
3.1.2 Non-discrimination
Both the European and Interamerican human rights system prohibit discrimination in the granting of the rights provided in their Conventions. In both Conventions, the article that provides for the prohibition of discrimination contains a non-exhaustive list in which a number of prohibited grounds of distinction are listed. In both provisions sexual orientation is not included in that list. However, both Courts have concluded in their case law that sexual orientation is also one of the prohibited grounds of distinction.119 Distinction solely based on sexual orientation in granting the rights provided for in the Conventions is thus prohibited in both human right systems.
Also, in both human rights systems a distinction based on one of the prohibited grounds, such as sexual orientation, can be justified. The requirements for justification in both human right systems are very similar. In the European human rights system the state must be able to demonstrate that the difference made was prescribed by law and was necessary to meet a legitimate aim. An especially high level of scrutiny is required for complaints about discrimination based on sexual orientation since sexual orientation concerns ‘a most intimate part of an individual’s life’, which could only be justified by ‘particularly serious reasons’. 120
Furthermore, as the ECtHR held that the margin of appreciation is especially narrow where there is a difference in treatment based on sexual orientation, the state must not only prove that the measure chosen is in principle suited for realising the aim sought, but also that it was necessary in order to achieve that aim to exclude certain categories of people.121 In the Interamerican system, a similar test is applicable for article 11.2 of the American Convention. The rights contained in article 11.2 can be limited if the limitation is regulated by the law, pursue a legitimate goal and comply with the requirements of suitability, necessity and
118 Tyrer (n 16) paragraph 31.; Atala (n 75) paragraph 83-84. 119 Atala (n 75) paragraph 91-93.; Mouta (n 7) paragraph 36. 120 Smith (n 8) paragraph 89-90.; Dudgeon (n 8) paragraph 52. 121 Karner (n 9) paragraph 41.; Kozak (n 9) paragraph 99.
23 proportionality, in other words, they must be necessary in a democratic society.122 However,
in contrast with the European system, the right to family as contained in article 17 of the American Convention may not be limited. As such, article 17 cannot be limited and the test prescribed for article 11.2 does not apply. As the Interamerican Court has included sexual orientation as one of the ‘suspect categories of distinction’ in article 1.1, the state must provide ‘weighty reasons’ to justify why the rights granted in article 17 of the American Convention are not granted to same-sex couples.123 The tests to justify distinction in the European Convention and the test to justify distinction in article 11.2 cases of the American Convention are thus very similar, while a less detailed strict test is applied for article 17 of the American Convention.
3.1.3 Family life and the right to marry
Both human rights systems have provided that same-sex relationships can qualify as family life.124 Furthermore, in both human right systems same-sex relationship cases will mainly be considered in the light of the right to family life. Consequently, both Courts rarely consider same-sex relationship cases under the right to marry. The Interamerican Court did not involve the right to marry in the Atala case and also the European Court is rarely willing to consider the right to marry for same-sex relationships. For the ECtHR, this prudent approach to consider cases about same-sex relationships under the right to marry can be explained by the special and protected status of marriage in the European system.125 This special status of marriage makes it hard for same-sex relationships to challenge their inability to marry, as the European Court considers unmarried and married couples are not comparable.126 As there is no jurisprudence about same-sex marriage in the Interamerican
human rights system, it is unclear if marriage enjoys such protected status in the Interamerican system.
In both human right systems there is no general positive obligation for states to provide for marriage for same-sex couples. The provisions on the right to marry in the European and American Conventions could in principle both be interpreted in a manner that would oblige states to allow same-sex marriage, but this interpretation has not taken place. The ECtHR held that marriage has a special status and it provided states with a wide margin
122 Atala (n 75) paragraph 86 and 164.; Donoso (n 111) paragraph 56. ; Escher (n 111) paragraph 116. ;
IACommHR Duque (n 101) paragraph 74.
123 Atala (n 75) paragraph 91-93.
124 Schalk (n 11) paragraph 90-95.; Atala (n 75) paragraph 177. 125 Gas (n 26) paragraph 68.
24 of appreciation, as it regarded that national authorities are best placed in this matter to respond to the needs of their societies.127 However, the European Court also decided that the right to
marry must no longer ‘in all circumstances be limited to marriage between two persons of the opposite sex’.128 The Interamerican Court has not yet had the opportunity to respond to the
applicability of the right to marry for same-sex relationships.
3.2 Differences
In addition to similarities, the European and Interamerican human rights systems also differ in many aspects of legal recognition of same-sex relationships.
3.2.1 Considerations
The Courts have different views on which considerations play a role in same-sex relationship cases. First, case law of other regional human rights systems can be considered. Neither of the Courts is legally obliged to consider case law of other regional human rights systems as its states parties are not bound by other regional human rights systems. However, even though regional human rights courts are not obliged to consider case law of other regional courts, it might serve as good inspiration since regional human rights courts often face similar issues. In its same-sex relationship case the Interamerican Court takes other regional human rights case law, especially European case law, into account, which is regarded as valuable inspiration in academic literature.129 It can be understood that the IACHR refers often to the ECHR in its only same-sex relationship case, as the jurisprudence on same-sex relationships is more developed in the European system and this developed jurisprudence can serve as inspiration for the Interamerican Court.130 However, it is still striking since the state
parties to the Interamerican system are not state parties to the European system, so they cannot be bound by the latter treaty.
On the other hand, the European Court currently takes very few inspiration from other regional Courts in same-sex relationship cases. It has been argued by scholars that the ECHR does not engage much in judicial dialogue with other regional courts, because the jurisprudence of the ECHR is often most developed and detailed and scholars find the legitimacy of the Court relatively high.131 However, a development to engage in judicial
127 Schalk (n 11) paragraph 61-62.; Gas (n 26) paragraph 68. 128 Schalk (n 11) paragraph 61.
129 Ibid.; García (n 117) 10-14. 130 García (n 117) 10-14.
131 Antoine Buyse ‘Tacit Citing - The Scarcity of Judicial Dialogue between the Global and the Regional Human
25 dialogue can be identified. The ECtHR has referred to the European Charter, to which it is not bound, and has extensively used the Charter in its reasoning of its judgements.132
Furthermore, in cases on other issues than legal recognition of same-sex relationships, such as enforced disappearances, the ECtHR has taken jurisprudence by the Interamerican Court into account, so sometimes the European Court is willing to engage in interregional judicial dialogue.133 Moreover, in the most recent European case on discrimination of same-sex relationships, the Aldeguer Tomás v Spain case, the Court has for the first time mentioned Interamerican case law in a case concerning discrimination on the basis of sexual orientation.134
However, the use of Interamerican jurisprudence in the Tomás case can be critiqued. Firstly, the choice of Interamerican jurisprudence mentioned by the European Court can be critiqued. The ECtHR referred to the Interamerican’s Court rejection of the ‘protection of the traditional family’ as a legitimate aim to justify differentiation, while the ‘traditional family’ was not an issue in this case, as the government in the Tomás case did not bring that argument and the Court found no discrimination that could be justified.135 Furthermore, the European Court referred to the Duque case of the Interamerican Court, which has similar facts as the
Tomás case as both cases concern same-sex partners of deceased persons who cannot obtain
survivors pensions, but the European Court came to the complete opposite conclusion as the Interamerican Court, namely that there was no discrimination.136 The choice of Interamerican case law is thus strange as it refers to issues not relevant in the current case and the conclusions found in Interamerican case law are opposite to the European conclusions. Secondly, it can be critiqued that the Court only mentioned Interamerican case law and did not use the jurisprudence in its judgements. Interamerican jurisprudence is not considered in the section in which the Court gives the judgement, but is only mentioned under ‘Relevant Domestic and International Law and Practice’ and is neither explicitly followed nor rejected in the Court’s assessment of the merits of the case.137 In other cases, the Court has been
willing to draw inspiration from legal instruments to which the Court is legally not bound, for and Freedom of Expression and Information: Critical Perspectives (Cambridge University Press 2015) p.
460-465.; Maria Papaioannou ‘Harmonization of International Human Rights Law Through Judicial Dialogue: The Indigenous Rights’ Paradigm’ (2014) 4 Cambridge Journal of International and Comparative Law 1040-1043.
132 Schalk (n 11) paragraphs 60-63.
133 European Court of Human Rights ‘References to the Inter-American Court of Human Rights in the Case-Law
of the European Court of Human Rights’, Research Report (2012) p 3-20.; Papaioannou (n 131) 1040-1043.
134 Tomás (n 31) paragraphs 52-55. 135 Ibid.
136 Ibid. 137 Ibid.
26 example the European Charter, and based its judgement partly on such legal instruments.138
However, in the Tomás case the Interamerican jurisprudence is mentioned, but not really used in the judgement. The European Court could consider, and not only mention, Interamerican jurisprudence on same-sex relationship issues, as case law on other issues demonstrate that the European Court is willing to truly consider jurisprudence by other regional courts and also in the field of the legal recognition of same-sex relationships the Interamerican Court can inspire the European Court with interesting solutions. On the other hand, one could also be more positive about the Tomás case, as the ECtHR has shown willingness to engage in interregional dialogue in same-sex relationship cases, even though it is not obliged to take jurisprudence of other regions into consideration.
Second, both Courts consider international consensus on same-sex relationship issues. Even though both Courts are not obliged to abide by international case law by international treaty bodies, some treaty bodies can serve as a good source of inspiration on how to assess same-sex issues. Especially the Interamerican Court paid much attention to international consensus as it considered many international human right treaties, such as the International Covenant on Civil and Political Rights.139
Third, the Interamerican Court has much regard for the resolutions on non-discrimination and LGBTI issues of the political bodies of the Organization of American States (OAS).140 In almost all same-sex relationship cases, the European Court does not
consider the political bodies of the Council of Europe. However, the European Court has in its most recent case referred to recommendations of the Parliamentary Assembly of the Council of Europe (PACE). However, also with the reference to the PACE recommendations, a reference is made in the ‘Relevant Domestic and International Law and Practice’ part of the judgement, but the PACE recommendations are not used in the Court’s assessment of the merits of the case.141 As such, there is still a significant difference between the Interamerican and European Court, since the Interamerican Court uses the OAS resolutions in considering the case.142 This difference might be explained by the difference in considering consensus (see below).
138 Schalk (n 11) paragraphs 60-63. 139 Ibid.
140 For example, Atala (n 75) paragraph 86. 141 Tomás (n 31) paragraphs 46-49. 142 For example, Atala (n 75) paragraph 86.
