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Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights

Scientific Essay 2015 11 Pages

Law - European and International Law, Intellectual Properties

Excerpt

Content

1 Introduction

2 A negative Dimension to the Right to Marry under Article 12 ECHR?

3 What Role for Consensus?

4 Concluding Remarks

Literature

Case Law

Other documents

1 Introduction

In 2011, Malta was the last EU member state nation to allow divorce[1] as a result of a referendum.[2] The longstanding opposition to divorce was closely linked to the predominant faith of many Maltese citizens. For the Catholic church, marriage is not merely a civil institution - “a worldly thing”[3] to use the terminology employed by Martin Luther - but a sacrament.[4] This also means that “[a] marriage which is ratified[, i.e. a sacramental marriage between baptized Christians,[5] ] and consummated cannot be dissolved by any human power or by any cause other than death.”[6] To be precise, the separation[7] and potentially even - civil - divorce of partners are permitted[8] - but not the remarriage because the sacramental marriage continues to exist regardless of the civil status of the couple.[9] An annulment of a marriage is not the Catholic equivalent to a divorce but - as the precise term, “declaration of nullity”[10] indicates[11] - only the confirmation that the requirements for a valid marriage had not been met in the first place.[12] The exception in Matthew 5:32 is understood as not opening the door to justifying divorce based on one partner’s infidelity but as referring to the validity of marriage[13] - thus also explaining the concept of annulments.

The same can be said of Matthew 19:9. Both Matthew 19:8 and Matthew 5:31 show that the Christian approach to divorce outlined by Jesus differed from the earlier rules under the Old Testament under which divorce required the issuing of a divorce certificate.[14] It has to be noted, though, that already in the Old Testament, the . The biblical prohibition of divorce also had the best interest of the wife in mind, in particular given the social situation of the time which - despite some women working outside the house[15] - was marked by a much greater level of economic dependency on the part of women than Europeans are used to today, thousands of years later. Against this background, the prohibition of divorce has to be seen not only in a religious / political but also in a social / historical context. The latter might not have been as important anymore in the last decades, the religious / political motivation remained relevant in Malta for a long time.

But there was also a lot of pressure on Malta in so far as divorce is now permitted almost universally. As a member of the European Union and the Council of Europe, Malta has certain human rights obligations and many today consider the legality of divorce such a fundamental human rights issue that it is simply taken for granted. It will be shown in this text, that this is not the case. Indeed, it will be shown that Malta was not obliged under the European Convention on Human Rights to allow divorce in its domestic laws. This is not a political, moral or religious question but a matter of law. Therefore the question has to be answered purely from the perspective of the European Convention on Human Rights.

2 A negative Dimension to the Right to Marry under Article 12 ECHR?

The wording[16] 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 [17] and in F. v. Switzerland [18] that this norm does not provide for a right to divorce.[19] The wording of Article 12 ECHR refers explicitly to marriage, from which the conclusion is drawn by the Court[20] and academia[21] 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.[22] 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.[23]

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”.[24]

But if a state allows divorce, the procedure - be it administrative in nature or requiring a procedure in court - has to comply with the Convention and that can lead to a violation of Article 12 ECHR if the length of the divorce proceedings makes it impossible to remarry.[25]

Also Article 5 of Protocol 7[26] to the European Convention on Human Rights, which protects “equality of rights and responsibilities”[27] between the spouses, only makes sense if one assumes that there is a right to divorce under national law.[28] That protocol has not been ratified by Germany, the Netherlands, Turkey and the United Kingdom.[29] Under the European Convention on Human Rights, the right to marry also extends to formerly married persons.[30] Protocol 7 itself, though, does not provide for a right to divorce.[31]

Also the right to family life under Article 8 ECHR can be employed to gain an understanding of what marriage means in the context of the European Convention on Human Rights: while family life between divorced partners might be over but the family life under Article 8 ECHR between either parent and the child or children would continue to exist,[32] marriage and childbirth lead to a presumption of family life[33] while the same presumption is not made in cases in which the parents have not been married at the time of the birth of a child.[34]

Against this background, the wording of Article 12 ECHR opposes the interpretation that the norm provides for a right to divorce.[35] In addition, a right to divorce also does not follow from the positive dimension of Article 8 ECHR.[36] Article 5 of Protocol 7 to the ECHR presumes the legality of divorce[37] but Protocol 7 does not have to be ratified by all parties to the ECHR.

[...]


[1] No author named, Malta votes 'Yes' in divorce referendum, BBC News Europe, 29 May 2011, http://www.bbc.co.uk/news/world-europe-13588834. [All websites referred to have last been visited on 10 February 2015.]

[2] Kurt Sansone / Lawrence Vella, Historic vote ushers in divorce Amendments breeze through vote, in: Times of Malta, 26 July 2011, http://www.timesofmalta.com/articles/view/20110726/local/Historic-vote-ushers-in-divorce.377401.

[3] The full passage reads as follows: “Es kan ia niemand leucken das die ehe ein eusserlich weltlich ding ist / wie kleider vnd speise / haus vnd hoff / weltlicher oberkeit unterworffen / wie das beweisen / so viel keiserliche rechte daruber gestellet” (Martin Luther, in: Hanns-Ulrich Delius (ed.), Martin Luther, Studienausgabe, Band IV, Evangelische Verlagsanstalt, Berlin (1986), p. 262) which translates as follows: “Nobody can deny that marriage is an outwardly worldly thing / like clothing and food / house and farm / subjected to worldly authority / as is evidenced by / so many imperial laws made about it [literally: placed above it]”. Luther ’s view is therefore not based on religious reasons but on the existence of the regulation of family life by the authorities, which appears to be circular reasoning: the state [in the widest sense of the term, keeping in mind the situation in early 16th century Europe] regulates it, hence it can be regulated by the state. This reasoning fits in with Luther ’s positive understanding of state authority which appears to go far beyond the guidance provided by Jesus Christ in Marc 12:17.

[4] Leonard Foley, Believing in Jesus, 6th ed., St. Anthony Messenger Press, Cincinnati (2009), p. 165.

[5] Javier Hervada, Titulus VII De matrimonio, in: Ernest Caparros / Michel Thériault / Jean Thorn / Hélène Aubé (eds.), Code of Canon Law Annotated, 2nd ed. revised and update of the 6th Spanish language edition, Midwest Theological Forum, Woodridge (2004), pp. 806-905, at p. 888.

[6] Codex Iuris Canonici (1983), http://www.vatican.va/archive/cod-iuris-canonici/cic_index_lt.html, Can. 1141 CIC/83; Codex Iuris Canonici (1917), http://www.jgray.org/codes/cic17lat.html, Can. 1118 CIC/17.

[7] Foley, supra, note 5, p. 210; Catechism of the Catholic Church (CCC), http://www.vatican.va/archive/ENG0015/_INDEX.HTM, # 1649.

[8] Anthony Wilhelm, Christ Among Us - A Modern Presentation of the Catholic Faith for Adults, 6th ed., Harper One, New York (1996), p. 386; Foley, supra, note 5, p. 210.

[9] Foley, supra, note 5, p. 210.

[10] CCC, supra, note 8, #1629.

[11] Foley, supra, note 5, p. 210.

[12] CCC, supra, note 8, #1629, sentence 1.

[13] Foley, supra, note 5, p. 209.

[14] Deuteronomy 24:1-4. It has to be noted, though, that already this old testament passage, did not imply divorce and remarriage was seen as something positive, rather it is accepted even outside the Catholic church that it was implied already in the Old Testament that it was wrong, albeit not punished (Richard M. Davidson, Divorce and Remarriage in the Old Testament: A Fresh Look at Deuteronomy 24:1–4, in: Journal of the Adventist Theological Society, 10/1-2 (1999), pp. 2–22, at pp. 4 et seq. and at p. 12, who also puts emphasis on the fact that this passage “is not placed in the section of the Deuteronomic law dealing with adultery, but in the section dealing with theft[, a] fact [which] must be kept in mind as [one] seek[s] to understand the underlying purpose of th[is partiucular Deuternomic] legislation.”, ibid., pp. 3 et seq. at p. 16, where he also explains that “Raymond Westbrook contends that this legislation is about property. In the first divorce [Deut 24:1] since there were moral grounds the wife received no financial settlement, whereas in the second divorce [Deut 24:3] there were no moral grounds so the wife received financial remuneration. The legislation is to keep the first husband from profiting twice, once to divorce her (and give her nothing) and once to remarry her (and get her financial settlement from her second husband). Westbrook notes how this interpretation fits nicely with the structural placement of this law in the section of Deuteronomic legislation dealing with theft.”, ibid., p. 16, reference omitted, but see also ibid., p. 19).

[15] Cf. Proverbs 31.

[16] On the importance of the wording of a treaty for its interpretation and the “ordinary meaning” of the terms used see Article 31 para. 1 of the Vienna Convention on the Law of Treaties, 23 May 1969, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

[17] European Court of Human Rights, Johnston and others v. Ireland, Application No. 9697/82, Judgment of 18 December 1986, on Johnston and others v. Ireland see Mark W. Janis / Richard S. Kay / Anthony W. Bradley, European Human Rights Law - Text and Materials, 3rd ed., Oxford University Press, Oxford (2008), p. 476.

[18] European Court of Human Rights, F. v. Switzerland, Application No. 11329/85, Judgment of 18 December 1987, on F. v. Switzerland see Janis et al., supra, note 18, p. 445.

[19] F. v. Switzerland, supra, note 19, para. 38; Johnston and others v. Ireland, supra, note 18, para. 52.

[20] Johnston and others v. Ireland, supra, note 18, para. 52.

[21] Christoph Grabenwarter, European Convention on Human Rights - Commentary, 1st ed., C.H. Beck, Munich (2014), p. 321.

[22] Ibid.; Johnston and others v. Ireland, supra, note 18, paras. 51 et seq.; F. v. Switzerland, supra, note 19, paras. 33 and 38.

[23] Cf. European Court of Human Rights, Hämäläinen v. Finland, Application No. 37359/09, Judgment of 16 July 2014, paras. 110-113.

[24] F. v. Switzerland, supra, note 19, para. 38; cf. European Court of Human Rights, Aresti Charalambous v. Cyprus, Application No. 43151/04, Judgment of 19 July 2007, para. 56.

[25] European Court of Human Rights, V. K. v. Croatia, Application No. 38380/08, Judgment of 27 November 2012, paras. 100-107; Bernadette Rainey / Elizabeth Wicks / Clare Ovey, The European Convention on Human Rights, 6th ed., Oxford University Press, Oxford (2014), p. 359.

[26] Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, 22 November 1984, European Treaty Series No. 117, http://conventions.coe.int/Treaty/en/Treaties/Html/117.htm.

[27] Article 5 of Protocol 7 to the European Convention on Human Rights, supra, note 27.

[28] Grabenwarter, supra, note 22, p. 321.

[29] Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 117, Status as of: 10/2/2015, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=117&CM=&DF=&CL=ENG.

[30] Grabenwarter, supra, note 22, p. 321; Aresti Charalambous v. Cyprus, supra, note 25, para. 56.

[31] Pieter van Dijk / Fried van Hoof / Arjen van Rijn / Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed., Intersentia, Antwerp (2006), p. 852.

[32] Christoph Grabenwarter, Europäische Menschenrechtskonvention, 3rd ed., C.H. Beck, Munich (2008), p. 198.

[33] David Harris / Michael O’Boyle / Ed Bates / Carla Buckley / Paul Harvey / Michelle Lafferty / Peter Cumper / Yutaka Arai / Heather Green, Law of the European Convention on Human Rights, 3rd ed., Oxford University Press, Oxford (2014), p. 527.

[34] Ibid.

[35] Grabenwarter, supra, note 33, p. 227.

[36] Rainey et al., supra, note 26, p. 359.

[37] Grabenwarter, supra, note 33, p. 227

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Pages
11
Year
2015
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9783668049475
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9783668049482
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English
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limits negative dimension article european convention human rights

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Title: Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights