Law & Critique: Que(e)rying the ECHR’s ‘European Consensus’

by | 7 Jun 2021

Continuing our cooperation with the journal Law & Critique, the full text of Claerwen O’Hara’s recent article can be found here.

‘European consensus’ is an interpretive method used by the European Court of Human Rights (the Court). Broadly, it refers to the Court’s practice of inferring whether the majority of Member States of the Council of Europe would support a particular reading of the European Convention on Human Rights (ECHR),[1] based on a comparative analysis of their laws and practices. Since Dudgeon v. the United Kingdom (1981),[2] European consensus has been a central element in the Court’s recognition of rights for lesbian, gay and bisexual (LGB) people under the ECHR, from the right to homosexual sex[3] to the right to same-sex relationship recognition.[4] Scholars and LGB activists alike have welcomed these decisions, pointing to the ways in which an accumulation of rights has benefited the European queer community. However, in my view, the method through which new LGB rights have been recognised deserves further scrutiny. Specifically, we must ask what discursive and performative effects flow from the Court’s practice of making claims about whether or not a regional ‘consensus’ exits in relation to matters of sexuality.

In a recent article in Law and Critique, I explore the work European consensus does through a queer reading of the Court’s case-law relating to sexuality rights. I argue that by enabling the Court to adjudicate sexuality rights claims through the idea of ‘consensus’, the Court’s use of European consensus has functioned to (re)produce and reinforce normative discourses that regulate, erase and co-opt expressions of sexual difference. As a result, I contend, European consensus has operated to uphold and sustain the dominant sexual order and close off spaces for sexual alterity—even in those cases in which it has led to the recognition of new rights for LGB people.

First, European consensus can operate as a regulatory device over queer subjects by allowing the Strasbourg organs to directly import, and then reinforce, prevailing ‘regimes of the normal’.[5] Here, I am using the term ‘Strasbourg organs’ to refer to both the Court and the European Commission on Human Rights (the Commission), which, up until its abolition in 1998, assessed the admissibility of all individual petitions under the ECHR. This can be seen, for example, in the Commission’s narrow construction of ‘sexual orientation’ in Sutherland v. United Kingdom[6] (1997). In that case, the Commission recognised a right to an equal age of consent for homosexual and heterosexual relations. This was largely due to ‘major changes…[having taken place] in professional opinions—particularly in the medical profession’[7] regarding the age that sexual orientation becomes ‘fixed’. The Commission held that the medical community now believed that ‘sexual orientation was usually established before the age of puberty in both boys and girls’ and ‘fixed by the age of 18’.[8] In addition, it found that there was a new legal consensus in Europe whereby ‘equality of treatment in respect of the age of consent [was] now recognised by the great majority of Member States’.[9] In light of this new medico-legal consensus, the Commission held that there was no ‘reasonable and objective justification for maintaining a different age of consent for homosexual and heterosexual acts’.[10] The Court later confirmed this decision in S.L. v. Austria (2003),[11] in which it held that there was an ‘ever growing European consensus to apply equal ages of consent for heterosexual, lesbian and homosexual relations’[12]  and that ‘the vast majority of experts…[now believed] that sexual orientation was in most cases established before the age of puberty’.[13]

In Sutherland and S.L., the Strasbourg organs’ use of European consensus introduced a strong essentialist narrative into European human rights law, in which sexual orientation was conceived of as an immutable characteristic that becomes ‘fixed’ at a certain age. In both cases, this narrative was given discursive force through the Strasbourg organs’ combination of legal and expert consensus, which enabled law and disciplinary power to fuse and reinforce one another.[14] While this essentialist construction of sexuality played an important role in bringing an end to Europe’s discriminatory consent laws, it also operated to limit the ‘very many dimensions’[15] along which sexuality may be expressed. On the one hand, this worked to erase fluid, non-binary and non-gendered experiences of sexuality, paving the way for the Court to take a dismissive approach towards people with sexualities that do not fit neatly into the homosexual/heterosexual binary[16] as discussed below in relation to sadomasochism and incest. On the other hand, the Strasbourg organs’ construction of ‘sexual orientation’ as an unchangeable predisposition towards either heterosexuality or homosexuality helped to uphold and sustain heteronormative power relations. This is because, as Grigolo writes, the essentialist category of ‘the homosexual’ can reinforce ‘the dichotomy within which the “other” (homosexual…) is defined.’[17] As a result, ‘the position of the dominant category (the heterosexual…) is confirmed and stabilised.’ [18]

Second, European consensus has worked to exclude, and even erase, ‘sexual subalterns’[19] who have not benefited from the political momentum of the gay rights movement. This can be seen in Stübing v Germany[20] (2012), in which the Court held that the criminalisation of incest between consenting adults did not violate the ECHR due to a ‘broad consensus…that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole.’[21] Similarly, though less explicitly, in Laskey, Jaggard and Brown v. UK[22] (1997) the Court held that the prosecution of three men for engaging in consensual sadomasochistic practices with a large group of men did not violate Article 8 of the ECHR. While the Court did not expressly ground this finding in European consensus, Brems suggests that its decision to depart from Dudgeon, in which it had used consensus reasoning to find that the criminalisation of homosexuality violated Article 8,[23] was likely influenced by the fact that ‘the European consensus to decriminalize homosexual behaviour [did] not extend to sadomasochistic activities.’[24]

In these cases, the Court’s deployment of European consensus functioned to exclude practitioners of incest and sadomasochism from the protection of European human rights law, thereby contributing to their continued criminalisation in parts of Europe. In Stübing, it also worked discursively to expunge the incest practitioner from the European imaginary. This is due to the language of ‘consensus’, which can imply a complete agreement, even when, as in most cases, no such completeness exists. When applied in cases involving highly stigmatised sexual subalterns, this can have a totalising effect, whereby alternative viewpoints and ways of being are not simply marginalised but erased. It can push certain sexual discourses from a conception of ‘us and them’ to an idea of ‘everyone’, in which the ‘other’ no longer exists. As Rancière writes:

Consensus means much more than the reasonable idea and practice of settling political conflicts by forms of negotiation and agreement… It means the attempt to get rid of politics by ousting the surplus subjects… Consensus means closing the spaces of dissensus by plugging the intervals and patching over the possible gaps between appearance and reality or law and fact.[25]

The totalising effect of the language of ‘consensus’ can be seen in the Court’s finding in Stübing that there existed ‘a broad consensus…that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole.’[26]While in that case the Court provided a breakdown of Member States’ different legal positions on incest—thereby demonstrating that there was in fact no complete agreement on the matter—its references to a ‘broad consensus’ and ‘society as a whole’ nevertheless function to erase the incest-practising ‘other’ from European life altogether. For they are not part of the ‘everyone’ on whose behalf this ‘broad consensus’ seemingly speaks. And there is no space for them within a society that, in their absence, has been designated as ‘whole’.  

Finally, European consensus has played a role in shaping the identity of Europe itself. Ammaturo argues that in Europe over ‘the last four decades[,] there has been the emergence of a fundamentally (neo)liberal consensus on the necessity of ensuring equal rights and protection…to LGBTQI persons’.[27] She contends that this has led to the development of ‘a European identity [of] being intrinsically “queer-friendly”’,[28] built upon an idea of European sexual exceptionalism. In my view, the Court’s concept of European consensus bas helped to produce this regional identity. This is because, in the majority of its decisions recognising new LGB rights, the Court has directly attributed this outcome to the work of ‘Europe’ through its concept of European consensus. As such, with each decision, the Court provides Europe with a reflection of itself as the creator of LGB rights, thereby inscribing these rights into Europe’s very identity. Furthermore, in more recent decisions, the Court has begun weaving together its various findings of European consensus in sexuality-related cases over the years to form one, overarching European consensus in support of LGB rights. This can be seen in Alekseyev v. Russia (2010),[29] which concerned Moscow’s ban on gay pride marches. In response to the Russian Government’s argument that ‘there was no [European] consensus…as to the extent to which homosexuality was accepted in each country’,[30] the Court compiled decades of its case-law to demonstrate the existence of a strong European consensus in favour of LGB rights:

There is ample case-law reflecting a long-standing European consensus on such matters as abolition of criminal liability for homosexual relations between adults…, homosexuals’ access to service in the armed forces…, the granting of parental rights…, equality in tax matters and the right to succeed to the deceased partner’s tenancy…; more recent examples include equal ages of consent under criminal law for heterosexual and homosexual acts.[31]

The sense of regional consensus fostered by such decisions has likely resulted in some benefits for the European queer community. However, it has also led to queer subjects being co-opted for other political agendas. In particular, Europe’s ‘gay friendly’ identity has, on occasion, been instrumentalised in the promotion of Europe’s moral and cultural superiority visàvis other parts of the world and the people who come therefrom. This can be seen in the moral panic over ‘migrant homophobia’ that occurred in the wake of the European ‘refugee crisis’, whereby xenophobic discourses were mobilised through expressions of concern for the welfare of European LGB communities and a need to maintain Europe’s ‘gay friendly’ culture.[32]In 2016, Hungary’s Prime Minister even went as far saying that accepting Syrian refugees also meant ‘importing…homophobia’.[33] In this regard, Europe’s ‘gay friendly’ identity has operated as a form of ‘homoregionalism’, similar to Puar’s concept of ‘homonationalism’, which she uses to describe the deployment of LGB rights to justify a variety racist, Islamaphobic, imperialistic and militaristic policies.[34] In my argument, European consensus is implicated in these exclusionary aspects of Europe’s ‘gay friendly’ identity. This is because, by mobilising the notion of a regional ‘consensus’, the Court has fostered a sense of a closed community. It has created an idea of a single ‘Europe’, built upon the values of sameness and agreement. In doing so, it has helped to shut off spaces of difference and push the ‘other’ out, whether it be the incest-practising ‘other’, or, in this context, the refugee ‘other’.

As I argue in the article in Law and Critique, these various outcomes suggest that queer freedom may be better sought away from the European Court of Human Rights and its insistence on consensus. To return to Rancière, perhaps what is needed is not the inclusion of sexual subalterns within Europe’s consensus-based human rights framework, but rather a queer ‘dissensus’, whereby queer activists actively fight for the ‘presence of two [or more] worlds within one’.[35]


[1] European Convention on Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).

[2] App No, 7525/76, Eur. Ct. H.R. (22 October 1981).

[3] Ibid.

[4] Valliantos v. Greece App. Nos. 29381/09 and 32684/09, Eur. Ct. H.R. (7 November 2013); Oliari and Others v Italy, App. Nos. 18766/11 and 36030/11 (31 July 2015).

[5] Michael Warner, ‘Introduction’ in Fear of a queer planet: Queer politics and social theory, ed. Michael Warner, (1993, University of Minnesota Press), vii, xxvi.

[6] App No. 25186/94, Eur. Comm’n. H.R (1 July 1997).

[7] Ibid, para 59.

[8] Ibid.

[9] Ibid, para 60.

[10] Ibid, para 64.

[11] S.L. v. Austria, App. No. 45330/99, Eur. Ct. H.R. (9 January 2003).

[12] Ibid, para 42.

[13] Ibid, para 43.

[14] Here, I am drawing on Foucault’s account of modern power, in which law and disciplines, such as science, medicine and sociology, come together to form a ‘common matrix’ through which knowledges and truths are then produced, see Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1991) 23. See also, Ben Golder and Peter Fitzpatrick, Foucault’s Law (Routledge-Cavendish, 2009) 60–61.

[15] Eve Kosofsky Sedgwick, Epistemology of the closet (University of California Press, 2008), 8.

[16] Damian A. Gonzalez-Salzberg, Sexuality and transsexuality under the European Convention on Human Rights: A queer reading of human rights law (Hart Publishing, 2019), 92.

[17]Michele Grigolo, ‘Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject’ (2003) 14(5) European Journal of International Law 1023, 1025.

[18] Ibid.

[19] For this term, see Ratna Kapur, ‘Post-Colonial Economies of Desire: Legal Representations of the Sexual Subaltern’ (2001) 78(4) Denver University Law Review855.

[20] App. No. 43547/08, Eur. Ct. H.R. (12 April 2012).

[21] Ibid, para 61.

[22] 21627/93, 21628/93 and 21974/93 (19 February 1997).

[23] Dudgeon v the United Kingdom, App No, 7525/76, Eur. Ct. H.R. (22 October 1981). In that case, the Court said: ‘there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States…it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied’, para 60.

[24] Eva Brems, ‘The Margin of Appreciation Doctrine of the European Court of Human Rights: Accommodating Diversity within Europe’ in David Forsythe and Patrice McMahon (eds), Human Rights and Diversity: Area Studies Revisited (University of Nebraska Press, 2003) 81, 103.

[25] Jacques Rancière, ‘Who is the subject of the rights of man?’ (2004) 103(2–3) South Atlantic Quarterly, 297, 306.

[26] Stübing v Germany, App. No. 43547/08, Eur. Ct. H.R. (12 April 2012), para 61 [emphasis added].

[27] Francesca Romana Ammaturo, European Sexual Citizenship: Human Rights, Bodies and Identities (Palgrave Macmillan, 2017), 28.

[28] Ibid, 4.

[29] App Nos. 4916/07, 25924/08 and 14599/09, Eur. Ct. H.R. (21 October 2010). 

[30] Ibid, para 61.

[31] Ibid, para 83)

[32] See, eg, Jin Haritaworn, ‘Wounded Subjects: Sexual Exceptionalism and the Moral Panic on “Migrant Homophobia” in Germany’ in Encarnacion Gutierrez Rodriguez and Manuela Boatcă Costa Sérgio (eds), Decolonizing European Sociology: Transdisciplinary Approaches (Routledge, 2010) 135; Marjoleine Zieck, ‘The European Refugee Crisis from a Vantage Point of View’ (2016) 45 Netherlands Journal of Legal Philosophy 3, 4; Thomas Spijkerboer, ‘Gender, Sexuality, Asylum and European Human Rights’ (2018) 29(2) Law and Critique 221.

[33] Kai Diekmann, ‘Hungary’s Prime Minister Says Accepting Syrian Refugees “Also Means Importing Terrorism, Criminalism Anti-Semitism and Homophobia”’ Business Insider (Online), 25 February 2016 <https://www.businessinsider.com.au/viktor-orban-interview-refugee-migrant-hungary-2016-2?r=US&IR=T>.

[34] Jasbir K Puar, Terrorist Assemblages: Homonationalism in Queer Times (Duke University Press, 2nd ed, 2017).

[35] Jacques Rancière, Dissensus: On politics and aesthetics (Trans. Steven Concoran, Continuum International Publishing Group, 2010), 37. For the application of queer theory to Rancière’s concept of ‘dissensus’ see, eg, Ben Trott, ‘Same-Sex Marriage and the Queer Politics of Dissensus’ (2016) 115(2) The South Atlantic Quarterly 411; Adam J Greteman, ‘Dissenting with Queer Theory: Reading Rancière Queerly’ (2014) 35(3) Discourse: Studies in the Cultural Politics of Education419.

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