How Does English Law Give Effect To The Right To Marry And Found A Family As Guaranteed By Article 12 Of The European Convention On Human Rights?

1816 words - 7 pages

How Does English Law Give Effect to the Right to Marry and Found a Family as Guaranteed by Article 12 of the European Convention on Human Rights?Article 12 states 'Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the existence of this right'. The European Court held that there is no one European-wide view of what marriage is and so each country is given a margin of 'appreciation' to decide how it understands marriage. Therefore, if taken literally, this article seems to give English law the power to determine and limit marriage. However, the decisions made by English courts have been challenged on many occasions, successfully and unsuccessfully. The scope of this qualification is unclear. It is evident that the exercise of the rights guaranteed cannot be wholly governed by English law. In that case the protection of Article 12 would extend only to cases where there was a breach of English law. But the primary purpose of the convention is 'to guarantee certain human rights irrespective of the provisions of national law'. In the past the UK has had quite poor record before the European Court of Human Rights, largely because the Convention was not part of UK law until the passing of the Human Rights Act 1998.By applying article 12 the European court has to balance the rights of the individual against the public interest. For example the right to marry cannot be considered simply as a form of religious practice because it is regulated by article 12 of the convention, which leaves the national requirements to be stipulated by domestic law. Thus, the refusal of permission under English law for a Muslim man to marry a 14-year old Muslim girl, as permitted by the man's religion (Islamic Law), could not be said to have violated his right to marry. Article 12 also protects couples from interference with their right to found a family. As with marriage, Article 12 does not create a right for couples of the same sex to adopt children, if national law prohibits this. In addition, it does not give entitlement for a male to female transsexual to be registered as the father of a child conceived by artificial insemination and this is illustrated in the case of X, Y and Z v United Kingdom.English law has not always been successful in giving effect to the right guaranteed under article 12. An example of UK violating article 12 can be illustrated in two particular cases which involved the restriction on prisoners to be married in prison. In these cases the term of imprisonment was such that the exercise of the right to marry would be delayed a considerable time. 'Personal liberty was not a precondition to the exercise of the right and no particular difficulties were envisaged in allowing prisoners to marry'. In its Report the commission said: "In the Commission's opinion national law may not otherwise deprive a person or category of persons of full legal capacity. Nor may it substantially interfere...

Find Another Essay On How Does English Law Give Effect to the Right to Marry and Found a Family as Guaranteed by Article 12 of the European Convention on Human Rights?

Do human rights treaties call for special treatment under the law relating to reservations laid down in the Vienna Convention of the Law of Treaties 1969?

2909 words - 12 pages cases, strong emphasis was placed on the facts that these reservations related to the ECHR which was a human rights treaty. In Loizidou, the ECHR stated the "the Court must bear in mind the special character of the Convention as an instrument of European public order for the protection of individuals". Therefore the practice of the ECHR seems to follow the same approach as the HRC in moving away from the regime in the VCLT which provides that states

Convention of Human Rights Essay

1547 words - 6 pages -American convention of Human Rights, the European convention on Human rights and the African Charter of Human Rights, and then explain some difference between them in law and how it organize the right of life. Firstly, The Inter-American Court of Human Rights was founded by the entry into force of the American Convention on Human Rights . The court was born to restore justice in these countries suffered by injustice and conflict. The

Article Review: “On Human Rights Day, stop the blank check to Israel”

1077 words - 5 pages their actions. As Stinemetz points out in the article, today is human rights day, a day dedicated to the promotion and protection of human rights to people across the world. In honor of today, we as a people should contact our local representatives and ask them why they are allowing a country to continue restricting some of the most basic human rights by funding a government which is actively trying to take away the rights of another country

Human Rights and John Rawls The Law of Peoples

3834 words - 15 pages Human Rights and John Rawls The Law of Peoples Abstract: Which political and juridical foundation can justify the transit from the Western, particular, to the universal? John Rawls tries to answer this question in his article, "The Law of Peoples," proposing a kind of contract or agreement. A first agreement should be attained among liberal-democratic societies on a few political and social issues such as human rights. Then this agreement

European Court Of Human Rights

2357 words - 9 pages French courts (tribunals and courts) to enforce it.2.1 Rights Ensured by The European Court of Human RightsThe rights and freedoms are guaranteed by the Convention and its Protocols. The Convention and its Additional Protocols stipulate the rights and freedoms:The physical freedom- The right to life (Article 2 supplemented by the Protocol 6 on the abolition of the death penalty);- prohibition of torture and inhuman or degrading treatment or punishment

The Extent to Which the Human Rights Act of 1998 Strengthened the Rule of Law in the U.K. Constitution

3695 words - 15 pages make the difficult decisions caused by competing legal considerations than the courts themselves, adds weight to this position. Yet an alternative approach does exist. As put by Lord Woolf:[29] (there was a) very sophisticated approach adopted by the legislator when making the European Convention on Human Rights part of our domestic law assisted. The legislator, instead of giving the United Kingdom courts power to

Why does the Chinese government at the start of the 21st century refuse to give its people rights despite encouraging private enterprise in industry commerce?

1670 words - 7 pages systematic effort to implement the 1993 State Security Law, which, among other things, sought to sever ties between dissidents and their international supporters. Human Rights Watch/Asia, a human rights organization with excellent sources of information on China, reported that Chinese physicians were "harvesting" kidneys and other organs from condemned prisoners, sometimes under anaesthesia before their actual execution, to use in organ transplants

The Incorporation of the Human Right Act into British Law

2404 words - 10 pages with the European convention on Human Rights. It is bound to be cheaper because citizens will not have to go aboard to obtain justice. Most of the rights contained in the convention already exist in UK statutes or in common law so perhaps the act is not such a big step forward. But it will make a difference in dealing with the range of rights such as: · The right to life · The right to family life

The relationship between human rights and common law

2505 words - 10 pages imports. Thecommon law does not necessarily conform with international law, butinternational law is a legitimate and important influence on the developmentof the common law, especially when international law declares the existenceof universal human rights.Mabo has been a turning point in the common law recognition of international human rights, as it was one of the first significant cases to give recognition to international human rights law's

Animal Testing: Are we right to give them no rights? (supports animal testing)

1341 words - 5 pages allowed for many new advances in the medical field, for a better understanding of different types of illnesses and how the body reacts to certain medications. As wrong as animal testing may seem, our society depends on it for our many medical advances. It is sad to say, but sometimes the wrong way is the only way.Emily YoungSophomore Biology HonorsJanuary 23, 2005Animal Testing: Are we right to give them no rights?There is a fine line between

Animal Testing: Are we right to give them no rights? (supports animal testing)

710 words - 3 pages allowed for many new advances in the medical field, for a better understanding of different types of illnesses and how the body reacts to certain medications. As wrong as animal testing may seem, our society depends on it for our many medical advances. It is sad to say, but sometimes the wrong way is the only way.Works CitedAnimal Research. 20 Jan. 2005. Institute for Laboratory Animal Research. 20 Jan. 2005 .Challenges and Issues. Oct. 2004

Similar Essays

The Impact Of The European Convention On Human Rights On Uk Law

1987 words - 8 pages The Impact of the European Convention on Human Rights on UK Law In democratic societies, it is usually felt that there are certain basic rights which should be available to everyone. These rights tend to vary in different legal systems but they generally include such freedoms as the right to say, think and believe what you like (freedom of expression, thought and conscience), and to form groups with others (freedom of

Is There Such Thing As A European Human Rights Regime? How The European Convention On Human Rights Has Transformed Into The Most Effective Human Rights Regime In The World Today.

5222 words - 21 pages made the ECtHR "as effective as those of any domestic court." The states have also adopted the Convention on Human Rights to be of constitutional significance, apparent in their willingness to limit their own sovereignty in order to comply with the Court and uphold its effectiveness. .The European Social Charter also serves a very powerful force in legitimizing the European human rights regime; it is the "biennial reports (Article 21) which have

Occupy London Stock Exchange And The European Convention On Human Rights

1208 words - 5 pages that the protestors were exercising their rights by protesting against the activities in the London Stock Exchange, and hence the slogans accompanying their protest, ‘Occupy London Stock Exchange’. By establishing a camp in the church compound, the protestors were exercising their right of expression and were therefore acting within the European Convention on Human Rights. In Article 10 of the convention, all citizens are given the right to express

European Convention Of Human Rights Analysis

2569 words - 10 pages all stages of criminal proceedings. Fourthly, a recommendation on procedural safeguards for vulnerable people and fiftly, a recommendation of the right to legal aid. In conclusion, Article 6 is a fundamental right of the European Convention of Human Rights. The right to a fair trial should have been applied to all areas of law and protect individuals in order to have a fair trial. Article 6 may cover a huge of scope of cases of the law generally