No New Rights in Fedotova

In Fedotova and others v Russia issued on 17 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR or the Court), held that Russia had breached its positive obligation to secure the applicants’ right to respect for their private and family life under Article 8 of the Convention by failing to provide any form of legal recognition and protection for same sex couples.

In a post published on 24 January 2023, Zuzana Vikarská argued that this is a significant judgment worthy of greater attention. While I agree with this, I want to challenge the claim advanced in the post that the ECtHR, in this judgment, does not merely interpret an existing right in present day conditions but “creates a new right”. I argue that this is an unconvincing reading of the case, both from a legal doctrinal perspective and from a normative perspective. The ground-breaking aspect of the judgment is, in my view, the clear rejection by the Court of the justifications advanced by the Contracting State.