Drawing the Line: Same-sex adoption and the jurisprudence of the ECtHR on the application of the 'European consensus' standard under Article 14

• Author: Junko Nozawa
• Position: LL.M. candidate, Utrecht University, The Netherlands; J.D., Washington University in St. Louis, U.S.A.
• Pages: 66-75

Drawing the Line: Same-sex adoption and the jurisprudence

of the ECtHR on the application of the “European consensus”

standard under Article 14

X and Others v Australia, App. No. 19010/07, Judgment of the European Court of Human Rights (Grand Chamber)

of 19 February 2013

Junko Nozawa

Merkourios 2013 – Volume 29/Issue 77, Article, pp. 66-75.

URN:NBN:NL:UI:10-1-112874

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur Publishing

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

ECtHR, Article 14, margin of appreciation, consensus standard, same-sex adoption

Abstract

One of the main criteria that the European Court of Human Rights uses in determining the parameters of the margin of

appreciation has been to nd a consensus among the state parties to the Convention as to the denition or interpretation of

a specic right. e way the Court has implemented the methodology of nding a “European consensus” of the discrimina-

tory practice of states under Article 14 has been problematic. Firstly, it is unclear when the Court takes into consideration

the practice of member states of the European Council. Secondly, it is unclear how it denes the comparative group and the

threshold necessary in dening a consensus.

is note looks at the application of the Court of this standard in cases concerning same-sex adoption in light of its most

recent decision in X. and Others v. Austria (2013). It is argued that the application of the standard in practice has yielded

variable jurisprudence, is inconsistently applied, and risks further fragmenting Contracting States’ obligations under the

Convention. In using the consensus standard as an interpretive comparative tool, the Court should allow a narrow margin

of appreciation only where there is substantial consensus on an issue. It is the author’s position that its negative iteration,

or the notion that a lack of consensus should yield a wide margin, should not be maintained, as this approach risks further

deteriorating the protection of fundamental rights.

Author Aliations

LL.M. candidate, Utrecht University, e Netherlands; J.D., Washington University in St. Louis, U.S.A.

Case note

66

Merkourios - Gender in European and International Law - Vol. 29/77