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No New Rights in Fedotova

Gill-Pedro, Eduardo LU (2023)
Abstract
In Fedotova and others v Russia issued on 17 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR or the Court), held that Russia had breached its positive obligation to secure the applicants’ right to respect for their private and family life under Article 8 of the Convention by failing to provide any form of legal recognition and protection for same sex couples.

In a post published on 24 January 2023, Zuzana Vikarská argued that this is a significant judgment worthy of greater attention. While I agree with this, I want to challenge the claim advanced in the post that the ECtHR, in this judgment, does not merely interpret an existing right in present day conditions but “creates a new right”. I argue that... (More)
In Fedotova and others v Russia issued on 17 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR or the Court), held that Russia had breached its positive obligation to secure the applicants’ right to respect for their private and family life under Article 8 of the Convention by failing to provide any form of legal recognition and protection for same sex couples.

In a post published on 24 January 2023, Zuzana Vikarská argued that this is a significant judgment worthy of greater attention. While I agree with this, I want to challenge the claim advanced in the post that the ECtHR, in this judgment, does not merely interpret an existing right in present day conditions but “creates a new right”. I argue that this is an unconvincing reading of the case, both from a legal doctrinal perspective and from a normative perspective. The ground-breaking aspect of the judgment is, in my view, the clear rejection by the Court of the justifications advanced by the Contracting State. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Other contribution
publication status
published
subject
keywords
European Convention, LGBTQ+, Same-sex couples, Equality, Russia, Human rights, Mänskliga rättigheter
DOI
10.17176/20230130-202753-0
language
English
LU publication?
yes
id
43888618-5003-4799-8f84-88e537d2b7d6
date added to LUP
2023-02-13 11:11:03
date last changed
2025-04-04 14:11:25
@misc{43888618-5003-4799-8f84-88e537d2b7d6,
  abstract     = {{In Fedotova and others v Russia issued on 17 January 2023,  the  Grand Chamber of the European Court of Human Rights (ECtHR or the Court), held that Russia had breached its positive obligation to secure the applicants’ right to respect for their private and family life under Article 8 of the Convention by failing to provide any form of legal recognition and protection for same sex couples.<br/><br/>In a post published on 24 January 2023, Zuzana Vikarská argued that this is a significant judgment worthy of greater attention. While I agree with this, I want to challenge the claim advanced in the post that the ECtHR, in this judgment, does not merely interpret an existing right in present day conditions but “creates a new right”. I argue that this is an unconvincing reading of the case, both from a legal doctrinal perspective and from a normative perspective. The ground-breaking aspect of the judgment is, in my view, the clear rejection by the Court of the justifications advanced by the Contracting State.}},
  author       = {{Gill-Pedro, Eduardo}},
  keywords     = {{European Convention; LGBTQ+; Same-sex couples; Equality; Russia; Human rights; Mänskliga rättigheter}},
  language     = {{eng}},
  month        = {{01}},
  title        = {{No New Rights in Fedotova}},
  url          = {{http://dx.doi.org/10.17176/20230130-202753-0}},
  doi          = {{10.17176/20230130-202753-0}},
  year         = {{2023}},
}