European Court of Human Rights Reaffirms Normative Superiority

Extract

[...] It was admitted that this marriage was a violation of Article 12 of the European Convention on Human Rights. The European Court of Human Rights had repeatedly ruled that the attachment to the traditional concept of marriage underlying Article 12 provided the defending State with a sufficient reason to continue applying biological criteria to determine a person's sex for the purpose of marriage. It has repeatedly ruled in this sense, as in the case of Cossey in the United States, where a transsexual who had changed from female to male complained that British law did not confer a legal status corresponding to his real condition. [...]

[...] An Extended Freedom to Marry The new jurisprudence of the European Court of Human Rights has been revolutionized by the evolution of society, thus allowing the extension of the freedom to marry. This is the case for the right to marry between a transsexual person who wants to marry a person of the opposite sex. It was through the Christine Goodwin ruling in 2002 that a reversal of jurisprudence occurred. The court then ruled that one could no longer continue to admit that the terms of Article 12 imply that the sex must be determined by biological criteria because since the adoption of the Convention, the mores concerning marriage had been deeply shaken by the evolution of society, and the progress of medicine and science had led to radical changes in the field of transsexuality. [...]

[...] The Convention refers to the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly on 10 December 1948. It is now a ubiquitous reference in national judicial decisions. The freedom to marry is a subjective right of personality relating to the freedom to marry. It implies both the free choice of the spouse and the free choice of marriage. Thus, being interested in the protection of the freedom to marry by Article 12 of the European Convention on Human Rights is to question the guarantees for each to have the possibility of getting married or not and also the freedom to choose one's spouse without disturbing others. [...]

[...] Therefore, it will first be necessary to study the protective value of Article 12, which is sometimes insufficient, in order to then address the innovative jurisprudence of the European Court of Human Rights in terms of marital freedoms. I. Article 12 of the European Convention on Human Rights, à la mode or antediluvian? For many lawyers, it is accepted that law is the mirror of society. Although it protects many social interferences and allows for a new legal framework to be established for marriage Article 12 of the European Convention on Human Rights is not adapted to the new society and can be considered anachronistic A. [...]

[...] The right to marriage established by this article is subject to the national laws of the contracting States, although it is admitted that the limitations of the right to marriage established in national legislation could include formal rules concerning matters such as publicity and the celebration of marriage. Thus, at the end of this article, the freedom to marry is not really protected since the article only determines the framework and not the substance of the conditions for marriage. B. An article that could not be adapted to new morals Article 12 of the European Convention on Human Rights in its very substance does not guarantee the freedom to marry for all couples. [...]