An Ambiguous Victory for Gay Rights in Europe
L’amore vince. Sort of. This week, the European Court of Human Rights (ECtHR) ruled in the case of Oliari and Others v. Italy that Italy is obligated to legally recognize and protect same-sex unions. The judgment is an exciting development for LGBT activists in Europe, where more than a dozen nations have legalized gay marriage—representing roughly two-thirds of the countries that have done so worldwide. But the significance of this latest ruling isn’t entirely clear, mainly because of the unique nature of the court itself.
When the U.S. Supreme Court ruled in favor of same-sex marriage in June, there was no real confusion regarding the court’s authority or the scope of its jurisdiction (enforcement of the ruling has been another matter entirely). But the situation is murkier with the ECtHR, an international court independent of any sovereign entity and with jurisdiction over 47 member states and 800 million people.
The court was established in 1959 in order to enforce compliance with the European Convention on Human Rights. Based in Strasbourg, France, the court accepts cases from both individuals and states. It only takes on a case after all possible legal recourse has been exhausted in national courts, and rulings are binding on the state against which the case has been brought. Enforcement of rulings is handled by the Committee of Ministers, comprised of the foreign ministers of the 47 member states.
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Oliari and Others v. Italy wasn’t the ECtHR’s first foray into matters of sexual orientation. In fact, the court has been something of a judicial vanguard in the field. Whereas the U.S. Supreme Court decriminalized homosexual activity in 2003 with Lawrence v. Texas, the ECtHR came to the same conclusion back in 1981 with Dudgeon v. the United Kingdom. In 2013, the court ruled that states that offered heterosexual couples legal recognition of unions beyond marriage were obligated to offer the same options to homosexual couples. The court has also been a pioneer on transgender rights, requiring the French government in 1992 to respect and recognize a citizen’s changed gender; in May, the court ruled that transgender people are protected against discrimination on the grounds of gender identity.
In the Oliari case, three Italian gay couples complained that they were unable to enter into any legally recognized or protected unions despite being in stable, committed relationships. The court found that Italy’s refusal to offer any legal framework for the recognition or protection of these unions violated Article 8 of the European Convention on Human Rights, which holds, “Everyone has the right to respect for his private and family life, his home, and his correspondence.” Although the article is geared toward preventing state interference in the lives of individuals, the court found that “it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8”—namely, legal recognition and protection of same-sex unions.
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Some members of the ECtHR will likely ignore the ruling entirely. That includes Russia, whose government has pursued virulently anti-gay policies.
Critically, the judgment does not call for marriage equality, as in the Obergefell v. Hodges ruling in the United States. It does not explicitly oblige any state other than Italy to recognize same-sex unions. It does, however, place indirect pressure on other European countries to do so, according to Dinah Shelton, a law professor at George Washington University. “Because the court is issuing an interpretation of a right within the Convention to which [the states] are bound,” Shelton said, “they’re on notice that if they were similarly sued the result would likewise be the same.” With this in mind, Shelton explained, states that belong to the ECtHR may pass legislation to comply with the ruling so as to preempt future lawsuits.
Still, some members of the ECtHR will likely ignore the ruling entirely. That includes Russia, whose government has pursued virulently anti-gay policies. Russia and the court already have a complicated relationship: Russia had the highest number of pending cases before the ECtHR in 2013, accounts for a plurality of cases requiring special attention from the Committee of Ministers, and takes the longest time on average—9.7 years in 2014—to fully comply with court rulings. The relationship isn’t entirely dysfunctional, though. Russia paid out nearly €2 billion in financial compensation in 2014 as a result of court rulings, and the judicial body’s decisions have influenced Russian jurisprudence even at the level of the Russian Supreme Court.
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The reality is that if the ECtHR were, in the future, to order Russia to recognize same-sex unions, it would have no surefire way of enforcing that judgment. The Committee of Ministers cannot apply sanctions or similar penalties to ensure compliance; it can only apply continuous diplomatic pressure on a given member. Diplomatic pressure can be successful—the Committee of Ministers was able to pressure Turkey into complying with a case related to its 1974 invasion of Cyprus by linking the case to Turkey’s possible admission to the European Union. But pressure can only go so far, and short of expelling a state from the court, there is little the ECtHR can do to require a nation to adopt measures that are anathema to it. Thus, it would be difficult to force Russia, Ukraine, or other serial non-compliers to follow the court’s lead. (Italy also has a poor reputation for compliance, but that’s due more to its dysfunctional judiciary than to ideological opposition to the court’s rulings, according to Shelton.)
If nothing else, though, the court sent a message this week to its 47 members, 23 of which do not officially acknowledge same-sex partnerships: The legal recognition of gay unions is a human right, not a privilege.
This article was originally published at http://www.theatlantic.com/international/archive/2015/07/gay-rights-italy-europe/399572/?UTM_SOURCE=yahoo