The Principled Imperative to Recognise Same-Sex Unions in the EU
Author: Borg-Barthet, Justin
Source: Journal of Private International Law, Volume 8, Number 2, August 2012 , pp. 359-388(30)
Publisher: Hart Publishing
Abstract:EU law governing the recognition of same-sex relationships suffers from a lack of principled underpinnings which would ensure equality of treatment in cross-border situations. This can be attributed to the fact that the law remains shackled by an intergovernmental legislative process which prefers compromise to clarity of purpose. Notwithstanding the pragmatism of a neutral approach, it is argued in this article that the EU should engage with policy questions regarding family law in greater depth. In particular, it is submitted that a Union which is founded, at least in part, on a liberal human rights tradition should aim towards the adoption of private international law solutions that favour a liberal, pluralist approach to the family unit. The alternative is to perpetuate inequality of civil rights within the Union and to deny principles that are embraced in the Treaties. In view of the intergovernmental nature of the legislative process, it falls to the Court of Justice to articulate the fact that EU law ought to leave no room for the Member States to discriminate against the mobility of families of same-sex couples. This is particularly true now that the Union has a distinct, justiciable bill of rights in the form of the Charter of Fundamental Rights.
Document Type: Research Article
Publication date: August 2012
- Hart Publishing launched the Journal of Private International Law (J. Priv. Int. L.) in spring 2005. The journal covers all aspects of private international law, reflecting the role of the European Union and the Hague Conference on Private International Law in the making of private international law, in addition to the traditional role of domestic legal orders.
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