Can it be imposed?

The question of unions between same-sex couples has in recent times come to the fore in the debate being conducted at the European level on individual rights and family rights. While some States have already legislated on the matter and others are discussing whether or how to approve new forms of “unions” or “marriages”, including those between homosexuals, the question that is being posed at the legal level is whether a State can regulate, according to its own needs and the convictions that prevail within it, the adoption or not of forms of “marriages” other than those between a man and a woman. According to some interpretations, no such freedom should exist since the exclusion by one or more States of such marriages as those between homosexuals would contravene the principle of the free circulation of persons upheld by the European Union. Others argue, in turn, that the EU itself cannot insist on this aspect since the European ‘common home’ is based on other principles that are even more important than that of “free circulation”. On this question SirEurope has interviewed FRANCO MOSCONI , professor of international private and procedural law at the University of Pavia (Italy). How, in broad outline, is family law conceived in the various European countries?“In three countries (Belgium, Holland and Spain) marriage can now take place irrespective of the sex of the spouses. Non-matrimonial union are regulated in very different ways from one State to another. Even between those that make no provision for the registration of such unions there are diversities both in terms of sex and of procedures for dissolution”. In countries where “homosexual marriage” (or some form of “homosexual union”) is recognized under civil law, is this “right” conceived in such a way that it implies automatic recognition by other countries that have not yet placed such unions on their statute book? Or is it the European Union that should demand such recognition?“Once again there is no homogeneity, even though it can be said that in one way or another each State ‘thinks for itself’. When we speak of Europe, we speak not just of the European Community/Union, but also of the Council of Europe (European Convention of Human Rights, 1950) and European Court of Human Rights in Strasbourg and the International Commission on Civil Status (ICCS), of which various countries are contractual partners”. Can the “right to the free circulation of persons” alone be a reason why a State that – for instance – does not wish to recognize “homosexual unions” in civil law should be obliged to do so, in contravention of the wish of its own Parliament and, in the last analysis, of its own people? “The European Union currently tends to consider that the impossibility of maintaining in other member states the legal status (the status of married spouse and/or registered partner) acquired in one of them may obstruct the free circulation of persons. It does not leave to the individual states the right to decide whether or not to recognize registered forms of union/cohabitation, also because the entry of partners of unions registered abroad has important economic and social costs”. According to current legislation and the European Treaties, can the European Union claim a particular type of supremacy (or overriding prerogative) in imposing on individual member states the obligation to adopt controversial measures, such as that of “homosexual marriages”, or would that be, in your view, an abuse and a disproportionate interference? “The European Parliament insists both on the recognition of any form of union and of homosexual marriages. Personally I don’t think that, on the basis of its current ‘powers’, the EU can go so far as to make any such demand. It’s true, however, that participation in the Community implies ‘mutual trust’, i.e. reciprocity, between the legal codes of the member states”. What role can the International Commission on Civil Status play in tackling this problem?“A Convention drawn up within the International Commission on Civil Status was opened to ratification on 5 September 2007. It is a Convention aimed at imposing on the States that ratify it the obligation to ‘recognize the conclusion, dissolution and annulment of partnerships registered in other states. By partnership the Convention means a commitment to shared life, different from marriage, between two persons of the same sex or of different sex, which gives rise to an act of public registration. Irrespective of the ratification of this Convention, in the medium and long term we can envisage an extension of the tendency to place the emphasis on the viewpoint of individual rights, also in family relations, and hence the pre-eminence of private international law. The complex of rules by means of which each legal code is coordinated with others will make it very difficult for some countries to adopt a position of ‘splendid isolation’, even if a specific national legislator should opt for a ‘soft’ solution, of contractual type”.