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Democracy and Human Rights - Not for Gay People?: EU Eastern Enlargement and its Impact on the Protection of the Rights of Sexual Minorities

34 Pages Posted: 17 Oct 2007  

Dimitry Kochenov

University of Groningen - Faculty of Law

Abstract

The Union's noncompliance with any of the standards of gay rights protection it had at its disposal in 1997, when the pre-accession Regular Reporting of the East European applicants for membership commenced, did not prevent it from promoting gay rights protection as a necessary pre-accession requirement included in the Copenhagen Criteria. The range of the Copenhagen-related legal instruments, coupled with the pre-accession principle of conditionality that offered the EU a virtual carte blanche in "steering" the democratic and human rights reforms in the candidate countries, all led observers to believe that the EU would advance gay rights protection in the candidate countries during the pre-accession exercise. This has not happened. In focusing timorously and inconsistently on a minimal range of rights, the Commission's performance in the course of the pre-accession exercise left much to be desired. Such performance was partly due to the confusion within the gay rights acquis and the orthodox case-law of the ECJ in this field. The development of the ECt.HR jurisprudence in the field of gay rights and the adoption of the Equality Directive has the potential to change this situation. As far as the application of the EU enlargement law is concerned, the present practice of virtually ignoring gay rights is unsustainable.

Keywords: gay and lesbian, eu law, enlargement, copenhagen criteria, european commission, pre-accession, sexual minorities, sex, discrimination, sexual orientation, eastern europe, ec law

Suggested Citation

Kochenov, Dimitry, Democracy and Human Rights - Not for Gay People?: EU Eastern Enlargement and its Impact on the Protection of the Rights of Sexual Minorities. Texas Wesleyan Law Review, Vol. 13, No. 2, pp. 459-495, 2007. Available at SSRN: https://ssrn.com/abstract=1022307

Dimitry Kochenov (Contact Author)

University of Groningen - Faculty of Law ( email )

Oude Kijk in 't Jatstraat 26
Groningen, 9712 EK
Netherlands

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