Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis?

Fenwick, H.

Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis?

Fenwick, H.

Authors

Professor Helen Fenwick h.m.fenwick@durham.ac.uk
Professor

Abstract

This article considers the division in Europe on the matter of recognition and protection of same-sex relationships in the form of registered partnerships or marriage, an issue of especial significance at the present time in a number of Council of Europe states. It examines the developing Strasbourg jurisprudence that has incrementally contributed to the increasing spread of such protection and recognition across Europe, with a view to arguing that within it the Court appears to be seeking to reconcile two conflicting aims. It appears to intend to continue to combat the notion that same-sex and different-sex couples can be treated differently in this respect by states. But it is also seeking to preserve its own authority in the face of the opposition of certain Central and Eastern European states to the introduction of formal frameworks affording protection and recognition to same-sex relationships. In seeking to reconcile the two aims, it has placed reliance on varying forms of consensus analysis in the Member States, due to the link between such analysis and the grant of a wide margin of appreciation to a Member State.

Citation

Fenwick, H. (2016). Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis?. European Human Rights Law Review, 2016(3), 249-272

Journal Article Type	Article
Acceptance Date	Mar 21, 2016
Online Publication Date	Jun 1, 2016
Publication Date	Jun 1, 2016
Deposit Date	Jun 20, 2016
Publicly Available Date	Jun 1, 2017
Journal	European Human Rights Law Review
Print ISSN	1361-1526
Publisher	Sweet and Maxwell
Peer Reviewed	Peer Reviewed
Volume	2016
Issue	3
Pages	249-272
Public URL	https://durham-repository.worktribe.com/output/1409307
Publisher URL	http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=388&productid=6823

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Copyright Statement
This is a pre-copyedited, author-produced version of an article accepted for publication in European Human Rights Law Review following peer review. The definitive published version Fenwick, H. (2016). Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis? European Human Rights Law Review 2016(3): 249-272 is available online on Westlaw UK or from Thomson Reuters DocDel service.