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Browsing by Author "Aalto, Juho"

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  • Aalto, Juho (2019)
    Non-heterosexual people are still facing widespread discrimination in Europe, in spite of rights positive legal development. I will approach the issue by using an analytical framework derived from Koskenniemi’s article ‘Human Rights, politics and Love’ for testing how human rights of non-heterosexual people are deferred to politics. I use this framework for showing that the reason for this lies within the heterosexual underpinning of the Convention itself. I will explain how the application of international law fails in providing an environment free of politics, in form of human rights, for non-heterosexual people and how the heterosexual underpinning of the Convention and its interpretation by the Strasbourg System. The way how non-heterosexual people’s rights are deferred to politics is helpful in revealing the heterosexual underpinning of the Convention. This is secondly shown as the non-heterosexual legal subject must first be acknowledged as a legal subject, before it can be represented before the European Court of Human Rights. The first set of case law shows that even though sexual behaviour was considered to fall within the ambit of Art. 8, its application was dependent of the Strasbourg System’s own acknowledgement of the non-heterosexual legal subject as “a criminal”, whose rights could be infringed by deferring them to politics by the need of the “democratic society” to punish non-heterosexual behaviour. This shows the heterosexual underpinning of the Convention, inter alia, as a homosexual applicant’s complaint was considered to be “querulous” in an inadmissibility decision. The chapter reveals how the application of the Convention to non-heterosexual “criminals” as a protective measure towards the “democratic society” was perceived unthinkable, thus it can be stated the Convention was deemed to protect heterosexuals’ rights ab initio. In the next chapter, I show that even though a change happened by the Court’s Dudgeon decision, which established that homosexual sex fell within the ambit of Art. 8, the Strasbourg System continued to defer the right to respect for private life of non-heterosexuals to politics, by allowing governments to continue the micromanagement of non-heterosexual’s private lives, for the protection of, inter alia, others in a “democratic society.” The non-heterosexual legal subject was elevated from the status of a common criminal to a rights holder, whose rights could still be compromised by politics as right-exceptions. In the last case law chapter, I introduce more recent case law where the Court’s choice of interpretation method, based on its own jurisprudence, reveal the heterosexual underpinning of the Convention and the Strasbourg system as a whole. When Art. 14 was first considered to be applicable to sexual orientation in Sutherland, it was, however, restrictively applied to non-heterosexuals in relevantly similar situations as that of heterosexuals. The Strasbourg System repeatedly stated the need of rights protection of non-heterosexuals in different situations by further developing the non-heterosexual legal subject in relation to heterosexuals, whose rights were perceived to be protected ab initio. The main finding is that it can be argued that the European Convention has a heterosexual underpinning, which has become more visible as the Strasbourg System has acknowledged non-heterosexual legal subjectivity in different aspects of live in its jurisprudence. The non-heterosexual legal subject has almost always existed in relation to heterosexuality, which confirms further the heterosexual underpinning of the Convention. For future study it would be meaningful to find what kinds of legal arguments could be evoked for shifting the treatment of non-heterosexuals from a relation to their protection as end in themselves.