This article analyses the recent jurisprudence of the European Court of Human Rights on gender le... more This article analyses the recent jurisprudence of the European Court of Human Rights on gender legal recognition. Whilst in Christine Goodwin the Court sanctioned the right of ‘post-operative transsexuals’ to the recognition of their new sexual identity, it also left the States Parties free to decide how to implement this right. Consequently, numerous States still condition the recognition of the new gender to intrusive requirements – e.g. compulsory sterilization, divorce, surgical interventions, hormonal or other medical treatments – causing intense physical and psychological suffering to the persons concerned. A number of claimants have challenged the permissibility of such criteria before the European Court of Human Rights. However, with the notable exception of Nicot A.P., Garçon e Nicot v. France, the Court has so far proved reluctant to answer the question of whether the ECHR actually limits the freedom of States to set the conditions for gender recognition. The dissenting opinions on this matter show the existence of serious disagreement among ‘conservative’ judges and ‘progressive’ ones. While for the former the choice of the conditions for gender recognition falls completely within the margin of appreciation of States, for the latter this margin shall be restricted in order to protect the physical integrity of transgender persons. Such a conflict – which is often fought on the terrain of the definition of the notion of ‘European consensus’ - along with the political situation in Europe, may explain why the Court is reluctant to take a clear stance on the compatibility of the most intrusive conditions for gender recognition with the ECHR. To conclude, the article argues that what is problematic is not only the choice of the ‘best criteria’ for gender recognition but the very fact that gender certification – which is often the cause of suffering - is still seen in our society as an indispensable State prerogative.
The Chapter casts a glance at the fight against poverty and the right to development as they come... more The Chapter casts a glance at the fight against poverty and the right to development as they come into sight at the intersection between public international law and Italy’s domestic and international legal practice. In public inter- national law, “fight against poverty” is shorthand for a vast domain of political and diplomatic action as well as for an ill-defined bundle of economic and social rights, at the core of which lies the universal entitlement to an adequate standard of living, including adequate food, clothing and housing. Italy is a party to several treaties recognizing that right at the universal and regional levels and, as such, it is subject to various form of international oversight. As for the right to development, none of the treaties mentioning it binds Italy and Italian judicial and administrative authorities never took it into account for in- terpretative purposes. The Chapter argues that the right to development is decaying into a mere appendage of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs) it formulates, and that the lat- ter, far from being the continuation of international law by other means, are expressive of a different kind of normativity, which ousts much more than it complements international law. The review mechanism put in place under the SDGs rests on a purely voluntary basis and, as Italy’s recent experience shows, it allows little scope for criticism of national performances. After a preliminary discussion of Italy’s compliance with the relevant rules and principles of inter- national law via the ordinary operation of its own legal order, the Chapter con- tends that Italy’s record before international monitoring bodies is as inglorious – especially for what was not done to cushion the economic and financial crisis – as the report it submitted under the 2030 Agenda is vainglorious, and likely to go unchallenged. In short, Italy’s enthusiastic embrace of the 2030 Agenda hardly conceals its continuing debacle in the fight against poverty and in defence of basic social rights, both at home and internationally.
This article analyses the recent jurisprudence of the European Court of Human Rights on gender le... more This article analyses the recent jurisprudence of the European Court of Human Rights on gender legal recognition. Whilst in Christine Goodwin the Court sanctioned the right of ‘post-operative transsexuals’ to the recognition of their new sexual identity, it also left the States Parties free to decide how to implement this right. Consequently, numerous States still condition the recognition of the new gender to intrusive requirements – e.g. compulsory sterilization, divorce, surgical interventions, hormonal or other medical treatments – causing intense physical and psychological suffering to the persons concerned. A number of claimants have challenged the permissibility of such criteria before the European Court of Human Rights. However, with the notable exception of Nicot A.P., Garçon e Nicot v. France, the Court has so far proved reluctant to answer the question of whether the ECHR actually limits the freedom of States to set the conditions for gender recognition. The dissenting opinions on this matter show the existence of serious disagreement among ‘conservative’ judges and ‘progressive’ ones. While for the former the choice of the conditions for gender recognition falls completely within the margin of appreciation of States, for the latter this margin shall be restricted in order to protect the physical integrity of transgender persons. Such a conflict – which is often fought on the terrain of the definition of the notion of ‘European consensus’ - along with the political situation in Europe, may explain why the Court is reluctant to take a clear stance on the compatibility of the most intrusive conditions for gender recognition with the ECHR. To conclude, the article argues that what is problematic is not only the choice of the ‘best criteria’ for gender recognition but the very fact that gender certification – which is often the cause of suffering - is still seen in our society as an indispensable State prerogative.
The Chapter casts a glance at the fight against poverty and the right to development as they come... more The Chapter casts a glance at the fight against poverty and the right to development as they come into sight at the intersection between public international law and Italy’s domestic and international legal practice. In public inter- national law, “fight against poverty” is shorthand for a vast domain of political and diplomatic action as well as for an ill-defined bundle of economic and social rights, at the core of which lies the universal entitlement to an adequate standard of living, including adequate food, clothing and housing. Italy is a party to several treaties recognizing that right at the universal and regional levels and, as such, it is subject to various form of international oversight. As for the right to development, none of the treaties mentioning it binds Italy and Italian judicial and administrative authorities never took it into account for in- terpretative purposes. The Chapter argues that the right to development is decaying into a mere appendage of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs) it formulates, and that the lat- ter, far from being the continuation of international law by other means, are expressive of a different kind of normativity, which ousts much more than it complements international law. The review mechanism put in place under the SDGs rests on a purely voluntary basis and, as Italy’s recent experience shows, it allows little scope for criticism of national performances. After a preliminary discussion of Italy’s compliance with the relevant rules and principles of inter- national law via the ordinary operation of its own legal order, the Chapter con- tends that Italy’s record before international monitoring bodies is as inglorious – especially for what was not done to cushion the economic and financial crisis – as the report it submitted under the 2030 Agenda is vainglorious, and likely to go unchallenged. In short, Italy’s enthusiastic embrace of the 2030 Agenda hardly conceals its continuing debacle in the fight against poverty and in defence of basic social rights, both at home and internationally.
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Papers by Luca Pasquet