ECHR Same-Sex Partnership Protection Issues and Implications for China

Abstract

The European Court of Human Rights (ECHR) has gradually developed from the non-recognition of same-sex partnerships to requiring member states to recognize and actively obligation to protect same-sex partnerships. From the series of cases of protecting same-sex couples published by ECHR, it can be seen that the ECHR protection of same-sex couples presents the characteristics of taking the new European consensus as the premise,expanding the scope of protection through evolutionary interpretation, and protecting same-sex couples by applying the principle of discretion and proportionality at the same time. The ECHR protection of same-sex couples has the problem of simply equating "new consensus" with the minimum standard of human rights protection,the conflict between the application of evolutionary interpretation and the principle of state consent, and the unclear scope of national discretion. From the characteristics and problems faced by the ECHR protection of same-sex couples, the rationality of the relativity theory of human rights protection in China has been further confirmed. In addition, it provides inspiration for China to avoid judicial creation in the interpretation of treaty evolution, and to respect the discretion of sovereign states to the greatest extent within the scope of national discretion.