The (Gay) Elephant in the Room: Is there a Positive Obligation to Legally Recognise Same-Sex Unions after Fedotova v. Russia?

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The (Gay) Elephant in the Room: Is there a Positive Obligation to Legally Recognise Same-Sex Unions after Fedotova v. Russia?

July 23, 2021

Giulio Fedele

On the 13th of July, the European Court of Human Rights (Third Section) decided the case Fedotova v. Russia, nos. 40792/10 etc, holding that the Russian State violated Art. 8 ECHR for not having provided same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form. The judgment, which has already been viewed as “historic” (here), represents an important and welcome development in the saga of legal recognition of same-sex unions in the ECHR. Where we left off, in Oliari v. Italy (2015), the Court left unclear whether Art. 8 imposed a general positive obligation upon all States to adopt a legal framework recognising same-sex unions, in the form of marriage or in any other equivalent form. In Fedotova v. Russia, the Court finally addressed the elephant in the room and clearly held that a State lacking the opportunity to have same-sex relationships legally acknowledged is in violation of Art. 8.

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