The European Convention on Human Rights (ECHR) covers 47 states with very different legal cultures and political histories. Written from the perspective of the situation in Malta, this short essay looks at the question of the limits to the negative dimension of Article 12 ECHR. This can lead to surprising results, which become less surprising if the historical background of the drafting of the ECHR is taken into account. The text also shows a way to avoid some of the consequences of the narrow approach employed by the drafters - without abandoning the fundamental ideas behind the Convention.
Table of Contents
1 Introduction
2 A negative Dimension to the Right to Marry under Article 12 ECHR?
3 What Role for Consensus?
4 Concluding Remarks
Objectives and Topics
The primary objective of this work is to analyze whether the European Convention on Human Rights (ECHR) imposes an obligation on member states to provide for divorce in their domestic legal systems, specifically examining the scope of Article 12 ECHR.
- The scope and interpretation of Article 12 ECHR regarding marriage and divorce.
- The role of the European Court of Human Rights in interpreting the Convention as a "living instrument."
- The legal relevance of European consensus in human rights adjudication.
- The distinction between positive and negative dimensions of human rights norms.
- The impact of state obligations under the ECHR regarding domestic family law.
Excerpt from the book
2 A negative Dimension to the Right to Marry under Article 12 ECHR?
The wording of Article 12 ECHR only refers to the rights to get married and found a family. This has led Strasbourg to conclude in Johnston and others v. Ireland and in F. v. Switzerland that this norm does not provide for a right to divorce. The wording of Article 12 ECHR refers explicitly to marriage, from which the conclusion is drawn by the Court and academia that there is no negative dimension to Article 12 ECHR in the form of divorce - even though other norms such as Article 10 ECHR provide examples of the use of the right. The crucial difference between Article 12 ECHR and e.g. Article 10 ECHR is that the former norm’s reference to marriage is not merely an example but the only form in which Article 12 ECHR foresees the right to marriage to be used. Hence Article 12 ECHR does not provide for a right to have a divorce. Therefore it did not come as a surprise that the European Court of Human Rights did not find a right to same sex-marriage in the Convention.
Under the Convention there is a right not to get married, but this protection against forced marriages is based on the right to private life under Article 8 para. 1 ECHR and potentially also on Article 3 ECHR rather than on Article 12 ECHR. From a legal perspective, though, this right not to get married in the first place, however, is different from the right to have a divorce, even though the result - not being married - looks similar from the outside (although of course there can be follow up-obligations after a divorce). Therefore“allow[ing] divorce […] is not a requirement of the Convention”.
Chapter Summary
1 Introduction: This chapter provides the historical and religious context of divorce, specifically referencing the Maltese referendum and the Catholic Church's perspective on marriage and annulment.
2 A negative Dimension to the Right to Marry under Article 12 ECHR?: This chapter investigates whether Article 12 of the ECHR includes an implied right to divorce, concluding that the Convention text does not support such an interpretation.
3 What Role for Consensus?: This section explores how the European Court of Human Rights uses the concept of "living instrument" and the role of societal consensus in interpreting the Convention's provisions.
4 Concluding Remarks: The final chapter summarizes the legal findings, affirming that member states are not obligated under the ECHR to provide for divorce, while noting the potential relevance of Article 8 ECHR in related matters.
Keywords
European Convention on Human Rights, ECHR, Article 12, Right to marry, Divorce, Marriage, Legal interpretation, European Court of Human Rights, Living instrument, Consensus, Family life, Article 8, Human rights, Malta, Annulment.
Frequently Asked Questions
What is the fundamental focus of this publication?
This work examines the legal limits of Article 12 of the European Convention on Human Rights, specifically questioning whether it requires member states to provide for the legal possibility of divorce.
Which thematic areas are central to the analysis?
The analysis covers the intersection of religious doctrine and secular law, the interpretation of international human rights treaties, the role of judicial consensus, and the scope of Article 12 ECHR.
What is the primary research question?
The central question is whether the European Convention on Human Rights mandates that signatory states must allow divorce within their domestic legislation.
Which scientific method is applied?
The author employs a legal-analytical method, examining treaty text, case law from the European Court of Human Rights, and academic commentary to determine the scope of specific human rights norms.
What topics are discussed in the main body?
The main body focuses on the text of Article 12 ECHR, the historical context of marriage in Catholic tradition, the "living instrument" doctrine, and the specific case law regarding divorce and the ECHR.
Which keywords characterize this work?
Key terms include ECHR, Article 12, Divorce, Right to marry, European Court of Human Rights, and legal interpretation.
Does the Convention provide a right to same-sex marriage?
The text notes that because Article 12 ECHR is limited to the right to marriage, the European Court of Human Rights has not found a right to same-sex marriage within the Convention's text.
How does the author evaluate the "living instrument" concept?
The author argues that while the "living instrument" doctrine allows for the evolution of the Convention, it does not permit a complete departure from the basic, intended meaning of the treaty text.
Why is the Maltese referendum mentioned in the text?
The Maltese referendum serves as a case study for the pressure exerted on states to align domestic family law with perceived human rights obligations, despite the ECHR not strictly requiring the legalization of divorce.
- Arbeit zitieren
- Dr. Stefan Kirchner (Autor:in), 2015, Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights, München, GRIN Verlag, https://www.grin.com/document/306441
