Response to the European Convention and the Case of Homosexuality

Monday, October 27. Group 8: AT, AW, Yongho Kim
Response to the European Convention and the Case of Homosexuality

The European Convention for the Protection of Human Rights and Fundamental Freedoms System constitutes a model and a standard of its own in terms of effectiveness in enforcing Human Rights among its members. The Convention was signed in 1950 and entered into force in 1953. It gives the de facto unity between European members and the “common heritage of political traditions” as reasons for which a universal and effective enforcement of human rights is possible through the Convention. (1423)

Adequacy of a Regional System

The Convention is a place of convergence of several sources of tension in the international human rights movement. The UN was not fond of a competing organization, at least while the UN lacked a comparable treaty on Human Rights (ICCPR and ICESCR). Eastern European states are strongly opposed to the creation of regional systems on the basis that human rights cannot be “regionalized”, applied differently in distinct areas of the world, for it would betray the notion of universal human rights, and because the creation of an organization already being overseen by another – the UN Human Rights Commission – would create problems of consistency and inadequate use of financial resources (783). Western European states argue that a regional enterprise takes away energy from the two global covenants of higher importance.

Claude reflects in the issue pointing out that each problem should be considered to determine if it belongs to a regional or a global realm, but also warns that no single regional human rights issue may escape global impact. He also shows the sensible issue of delineating states into definite regional categories, which has the potential to surpass its purely administrative purpose to hold economic nuances in the geopolitical configuration of the region. The most pressing warning, however, is that regional states may closely collaborate to systematically ignore some specific human rights issue. (782) He concludes indicating that a global organization is always in the best position to mediate international conflicts and that, according to the UN Charter, the “United Nations should be supreme.”

Institutional Enforcement

Three regional organizations hold relationships with the monitoring and enforcement of the Convention. (789) The Council of Europe is the creator of the Convention and upholds democracy, the rule of law and human rights; states wishing to enjoy trade benefits through the European Union normally join the Council of Europe first. The European Union, which can be historically traced back to another economic treaty in 1952, has developed into a comprehensive political and economic unit which encompasses the abiding of human rights as one of its side concerns. The Organization for Security and Co-operation in Europe (OSCE) is a political organization created in the midst of cold war (1975) as a result of negotiations between the Soviet Union and the NATO bloc; its highlight is the High Commissioner on National Minorities who works on “issues of ethnic tensions that threaten peace and stability”. (793)

Section II of the Convention (Art. 19-51) establishes the European Court of Human Rights, which oversees and enforces cases of violations of human rights. ICCPR HRC and the Inter-American Court often refer to decisions of the European Court (808) and the Court itself recalls its own decisions in justifying rulings, indicating a high degree of authority enjoyed by the European Court.(810) The strongest support for the Convention comes from its binding force. Article 46, Paragraph 1 (not 53, as in p.809) states that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” (1431). Additionally, the Convention fashions the highest authority in matters of human rights opinions, a highly developed judiciary, and the implicit benefit of economic and political integration as incentive.


1. What are the overlapping (can they work hand in hand on a functional basis) and potentially conflicting (do they go against each other) areas between the national, regional and global legal systems?
2. If many Eastern European countries sign onto the ECHR as a ‘homework’ for joining the EU, what other incentives can be utilized in other regions of the world where the economic/ political motives are not applicable?

The issue of morals and homosexuality

Two related rulings throw light into the judicial proceedings of the European Court. One is the case of Handyside, in which the Court supported the decision of the UK Magistrate’s Court in censoring “The Little Red Schoolbook”, a reference book for children with liberally permissive contents on matters of sexual behavior, contraception and prevention of venereal diseases. Handyside claimed a breach of the right to Freedom of Expression (Art.10), to which the UK replied that it would “corrupt and deprave” children, appealing the protection of morals stated in Paragraph 2 of the same article. The European Court stated that it was not possible to find “a uniform European conception of morals”, and that therefore it was up to the state to settle the issue, bringing up the notion of “margin of appreciation”, an judicial space in which the state was to exercise discretion. (812)

The next case, Norris v. Ireland, has been presented along with the U.S. Supreme Court’s ruling on another similar case (Bowers v. Hardwick), and deserves close inspection.

Norris v. Ireland United States
Antecedent Ireland is party to the European Convention. Hardwick was arrested immediately after engaging in oral sex act by a surveilling police.
Relevant local legislation 1. Person Act (1861) sec.62: indecent assault upon a male person… subject to prison sentence not exceeding ten years
2. Criminal Law Amendment Act (1885) sec.11: act of gross indecency with another male… imprisonment not exceeding two years.
3. Constitution Art.29(6): no international agreement shall be part of the domestic law 1. Georgia statute: “any sex act involving the sex organs of one person and the mouth or anus of another” is a crime of sodomy.
2. US Constitution, Amendment 14: sec.1. …No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Accusation The law against homosexuality leads to: 1. Depression because of likely criminal persecution upon overt expression of sexuality. 2. Fear of prosecution. 3. Laws are no in accordance to the European Convention 1. Statute condemning oral or anal sex act is unconstitutional based on Due Process clause of the 14th amendment. (Prior decisions related to procreation, family and abortion relied on an implicit right of privacy)
Local ruling High Court: dismissed, although depression is possible. Accuser appealed directly to Supreme Court.

Supreme court ruling & reasons 1. Argument for European Convention rejected: Laws do not need to be in accordance. (Const.29)

2. Christian nature of Irish state is consistent with lack of privacy encompassing homosexuality, which is:

a. is against Christian teachings and nature. (moral) b. can lead to depression, despair and suicide. (psycho-clinical) c. has resulted in venereal diseases. (public health) 1. Constitution should not confer rights to homosexuals when many States are already involved in illegalizing it: a. Family and homosexual activity are unrelated. b. When the 14th Amendment was ratified, 86% of U.S. states had criminal sodomy laws. (Thus 14th Amendment was not understood as upholding homosexuality.) c. Law is based in morality. d. Court does not have time to bother with new interpretations of existing laws. (Justice White)
2. Traditions of western civilization, Christianity, and morals all have historically interfered with homosexuality. (Justice Burger)
Other legal recourse 1. European Convention Art.8. (1) Everyone has the right to respect to his private and family life … (2) except such as is in accordance with the law and is necessary in a democratic society with interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or …rights and freedoms of others.
2. EHRC ruling on Dudgeon Case (1981) Apparently no other legal recourse.

Reference – South African Constitution (1996) Art.9 (3): The State may not unfairly discriminate directly or indirectly … race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Support for Accusation European Court: 1. interference is in accordance with [local] law, but is not enough of a basis since there has not been a public demand for enforcement of anti-homosexual law. (39,40,41,46) 2. A similar case previously ruled in favor of private sexual practice in Dudgeon. (44) 3. The issue deals with a highly intimate portion of private life, thus arguments for interfering should be serious; arguments based merely in morals are not sufficient. (46) 1. Dissenting opinions (Justice Blackmun, Brennan, Marshall and Stevens): 1. Philosophy underlying the U.S. constitution is not grounded in morals, but in the interest of the individual; and sexuality is a matter of individual bonds. 2. A legislation failing to justify itself on non-religious grounds is either illegitimate or non-secular. 3. The public realm is not affected when homosexuality is practiced in private space.
2. The government should not have been able to know of Hardwick engaging in oral sex act in the first place. (Tribe)


1. Is a “European (or other regional) moral system” impossible to define? If yes, is it conducive to giving the state ‘margin of appreciation’ ?



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