Dr Marko Milanovic: ‘Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States’

picI’d highly recommend this blogpost on EJIL-Talk! (Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States) by Dr Marko Milanovic. Marko compares the role of the Strasbourg and US Supreme Courts against the backdrop of jurisprudence on homosexual rights.

For what is it worth,  my comments on Marko’s post follow below.

Marko, for me your provocative (and valuable) post focuses on the dilemmas and quandaries of the judicial protection of human rights, and makes me think of how, in that connection, we should view the present.

Looking back over the Convention’s life one could say that it was the Court’s capacity to deliver judgments such as Dudgeon v UK that made Strasbourg’s reputation. Today, it seems that some of the judgments being delivered by the Court are being criticised for failing to live up to that reputation, and the mission the Court established for itself during that era (‘for itself’ – as the Strasbourg Court’s role in cases such as Dudgeon was not necessarily foreseen even in the mid-1960s).

Dudgeon may be looked back upon nostalgically today as a landmark – ground-breaking for an international Court to adopt back in the early 1980s – , but as Marko highlights (his penultimate paragraph) in some respects it was not radical at all when assessed by reference to the contemporary practice of western Europe. The following questions arise for me:

Are today’s critics expecting too much of the Court and looking back with rose-tinted spectacles on the past (in terms of what the Court was ever able to deliver – did the transsexual cases of the 1980s and 1990s, until Goodwin, for example, reveal restraint or realism on Strasbourg’s part)?

Does Oliari (and numerous other cases criticised in recent years for lack of ambition on the judges’ part, or an abdication of their responsibility) demonstrate the Court in retreat, fearful of the anti-British mood? Or is it that these cases are revealing the natural limitations of what the Court can do in the context of a multi-lateral treaty arrangement subscribed to by – today – 47 sovereign States? (Perhaps these last two questions are not mutually exclusive alternatives, and both issues identified are of some relevance).

Finally, at a time when (in the UK) there is talk of repeal of the HRA, could one say that the timidity (IF that is what one may label it) of the Strasbourg Court compared to the US Supreme Court underlines the case for a UK Bill of Rights that is not tied to Strasbourg’s limited (necessarily) vision of human rights? Put another way, could dissatisfaction with Strasbourg’s ability to deliver some standards/ outcomes underline why the UK Supreme Court should be less tied to the minimum level of protection that the (bringing rights home) HRA/ Convention provides? Freed from that model could it have the liberty to go their own way more (at least more than they currently do), and perhaps emulate, a little more at least, the US Supreme Court?

So there may be some good arguments for reform of the HRA – if done correctly. But there is a further twist and dilemma here.

It seems to me that some of those in the UK who are most critical of the Strasbourg Court for failing to go far enough are intent on ensuring the HRA is not reformed. I completely understand why that may be so. It seems to be the case that there is a fear in the current political climate that if the HRA-reform door is opened elements in the Conservative party will take the opportunity to degrade those aspects of the Convention’s protection (at the domestic level, at least) that they regard as inappropriate and unpalatable.

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