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Margin of Appreciation Gone Awry: The European Court of Human Rights' Implicit Use of the Precautionary Principle in Frette v. France to Backtrack on Protection from Discrimination on the Basis of Sexual Orientation

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Publisher
NELLCO Legal Scholarship Repository
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Keywords
  • Human Rights Law
  • International Law
Disciplines
  • Economics
  • Law

Abstract

In Fretté v. France, the European Court of Human Rights (the Court) confronted the issue of whether France could discriminate on the basis of sexual orientation in its adoption procedures in conformity with the European Convention on Human Rights and Fundamental Freedoms (the Convention) . This Note argues that in determining that France was justified in its discrimination, the Court abused the margin of appreciation principle, by collapsing it into something akin to the precautionary principle, which the European Court of Justice uses to interpret the economic treaties of the European Union. This Note will further argue that even within the context of the precautionary principle as applied by the European Court of Justice, this form of discrimination is not justified, and that this principle is not appropriate in the human rights context. This Note concludes by warning that the European Court of Human Rights’ failure to provide an adequate justification for their retreat from human rights principles - that they themselves have proclaimed - represents a dangerous politicization of the Court and a grave threat to the Convention itself.

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