Article 12 of the European Convention on Human Rights

Article 12 of the European Convention on Human Rights (ECHR) provides for two constituent rights: the right to marry and the right to found a family.Convention for the Protection of Human Rights and Fundamental Freedoms With an explicit reference to ‘national laws governing the exercise of this right’, Article 12 raises issues as to the doctrine of the margin of appreciation, and the related principle of subsidiarity most prominent in European Union Law. It has most prominently been utilised, often alongside Article 8 of the Convention, to challenge the denial of same sex marriage in the domestic law of a Contracting state.

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Application

As a right contained in the ECHR, Article 12 is available to anyone within the jurisdiction of a Council of Europe member state,, Council of Europe page on Convention for the Protection of Human Rights and Fundamental Freedoms. otherwise considered as a contracting party to the Convention.

The right contained in Article 12 is closely related to Article 8 of the Convention, which secures a right to respect for one's "private and family life, his home and his correspondence.", European Convention on Human Rights. Article 12 has not been as widely used as Article 8 in arguments for rights regarding family and relationships, but it has played in a role in counter-arguments to sham marriage accusations and it is playing a growing role in challenges to laws regarding same-sex unions.1 Crown Office Row, Article 12 - Right to marry/found family, UK Human Rights Blog Because Article 8 has been a reliable source for claims relating to family, relationships and home, jurisprudence on Article 12 has been left fairly thin., UK Human Rights Blog on Article 12.

Similar provisions exist in a number of other International human rights documents. The ECHR was the first instrument to give effect to certain rights stated in the Universal Declaration of Human Rights (UDHR) and made them binding within Europe,, European Court of Human Rights page on The European Convention on Human Rights. so as expected, Article 16(1) of the UDHR contains a similar provision:, Universal Declaration of Human Rights, Article 16

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

The International Covenant on Civil and Political Rights (ICCPR) also guarantees that the right to marry will be recognised in Article 23(2):, International Covenant On Civil and Political Rights, Article 23.

The right of men and women of marriageable age to marry and to found a family shall be recognized.

The principle of subsidiarity

Protocol No. 15, not yet in force, introduces specific reference to the principle of subsidiarity in the Preamble of the Convention., Council of Europe Page on Amendments to the Convention. Subsidiarity was included in the Treaty on European Union and later the Maastricht Treaty and is a fundamental part of the functioning of European Union law. Von Staden,Von Staden, ‘The Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review’ (2012) 10 International Journal of Constitutional Law 1023 at 1036 cited by Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-341 at 316. an international organisations academic, and Jean-Paul Costa,Costa, ‘The Relationship between the European Court of Human Rights and the national courts’ (2013) European Human Rights Law Review 264 at 267 cited by Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-341 at 317. the former President of the Court, have said that an element of subsidiarity that has been integrated into the institutional design of the Court via the requirement that applicants exhaust domestic remedies prior to being eligible to lodge an application at Strasbourg.Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-341, at 316-317. Other legal origins of the principle of subsidiarity in the ECHR have been found in Article 1 (obligation to respect human rights), 13 (right to an effective remedy), 19 (establishment of the Court) and 35(1)(admissibility criteria).Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-34, at 319-320.

Mowbray has explained that the principle of subsidiarity is twin limbed.Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-34, at 321, citing Matscher and Petzold (eds), ‘The Convention and the Principle of Subsidiarity’ in Macdonald, Matscher and Petzold (eds), The European System for the Protection of Human Rights (1993) at 42. The first is the procedural limb requiring all domestic remedies to be exhausted before lodging complaints at Strasburg. The second in the substantive limb through which the Court limits its own ability to review a domestic authority’s decision.Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-34, at 321. The latter has three parts. First, the Court does not seek to supplant domestic courts' primary role in delivering interpretations of national law; second, where the Convention has placed a duty of specific conduct on the national authority; and third, through the Court’s creation of the margin of appreciation doctrine.Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-34, at 321.

Mowbray argues that the doctrine is the product of subsidiarity: "it is a technique developed to allocate decision-making authority to the proper body in the Convention scheme to delineate in concrete cases the boundary between "primary" national discretion and the "subsidiary" international supervision."Alastair Mowbray, "Subsidiarity and the European Convention on Human Rights", Human Rights Law Review, Vol. 15, No. 2 (Jun., 2015), pp.313-34, at 322 citing Matscher and Petzold (eds), ‘The Convention and the Principle of Subsidiarity’ in Macdonald, The European System for the Protection of Human Rights (1993) at 59. This understanding distinguishes subsidiarity and the doctrine of the margin of appreciation as two separate concepts.

The right to marry as contained in Article 12 of the Convention could be considered a specific example of Mowbray’s understanding of the European Court of Human Rights (ECtHR) application of the substantive limb of the principle of subsidiarity. First, "In order to avoid trespassing on a State's sovereignty, the Court will intervene only when it is absolutely necessary to do so."Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 640. This discretion (to properly interpret Article 12 in the context of domestic norms) is not unlimited and goes hand-in-hand with European supervision through the court.See Handyside v. UK, E.Ct.H.R., Case Reports, 5493/72, 1976

Second, Article 12 places a specific duty of conduct on national authorities to uphold the right in the context of national laws governing marriage plainly by its wording. And finally, the right to marry has proven to be a right where the Court has developed a clear and wide margin of appreciation.See Christine Goodwin v. The United Kingdom, E.Ct.H.R., Case Reports, 28957/95, 2002.; Schalk and Kopf v. Austria, E.Ct.H.R, Case Reports, 30141/04, 2010.

The doctrine of the margin of appreciation

The margin of appreciation (or margin of state discretion) is a fundamental part of the jurisprudence of the ECtHR in interpreting and applying the provisions of the ECHR. Similar to subsidiarity, it is not explicitly referred to in the Convention itself but is the product of the Strasbourg organs.Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 639. The task of the Strasbourg organs is to examine domestic interpretations of the Convention and decide whether they are compatible with the universality of the Convention’s normsMichael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 639, 640. and whether they should be sanctioned for derogations which "restrict the right in such a way or to such an extent that the very essence of the right is impaired."Schalk and Kopf v. Austria, E.Ct.H.R, Case Reports, 30141/04, 2010, § . See for example B. and L. v. the United Kingdom, E.Ct.H.R., Case Reports, 36536/02, § 34, 2005 and F. v. Switzerland, E.Ct.H.R., Case reports, 11329/85, 1987. Therefore, the margin of appreciation can be better understood as "a matter of who takes the decisions, rather than what those decisions might be."Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 640.

Hutchinson explains that in practice the margin of appreciation as to a State's domestic implementation of Convention standards can become wider or narrower depending on the surrounding circumstances of the alleged breach being heard by the Court.Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 640. Derogations from the Convention ultimately rest on the concept of domestic necessity in Contracting State societies, and so a natural consequence becomes situation-oriented margins of appreciation.Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 640.

In respect of the ECHR, a margin will be narrower where there is a substantial degree of European consensus among member states around acceptable limitations on a certain Convention right, and wider where there is no such consensus.Michael R. Hutchinson, "The Margin of Appreciation Doctrine in the European Court of Human Rights", The International and Comparative Law Quarterly, Vol. 48, No. 3 (Jul., 1999), pp.638-650, at 640. This has become particularly evident in the case of Article 12 and the right to marry, especially in relation to same-sex marriage. In more than one case, the Court has said that in relation to Article 12, Contracting states enjoy a "particularly wide" margin of appreciation in determining the measures necessary for Convention rights such as this one to be secured within their jurisdiction.Christine Goodwin v. The United Kingdom, E.Ct.H.R., Case Reports, 28957/95, 2002, § ; Schalk and Kopf v. Austria, E.Ct.H.R, Case Reports, 30141/04, 2010, § .

Case law

Limitations on marriage found permissible

Schalk and Kopf v. Austria (2010)