Marital Rights

Robert Leckey

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781351559171
• Edición: 1
• Categoría: Historia
• Categoría: Historia del mundo

This volume gathers influential and cutting-edge scholarship on the international and domestic rights attaching to married couples and other adult relationships. Addressing examples from the European Court of Human Rights, UK, USA, Canada, Australia and South Africa, it traces contentious debates about the content of marital rights and responsibilities and whether law should reach beyond marriage, and if so how. Twenty-four essays and a substantial introduction highlight the complexity and contradictions as marital law grapples with gender equality, the aftermath of recognizing gay and lesbian rights, abiding economic inequalities, andexotic issues such as forced marriage and polygamy.

Part I:
Supranational and international rights

1
Marriage: A Human Right for All?

Paula Gerber, Kristine Tay and Adiva Sifris

Abstract

Article 23 of the International Covenant on Civil and Political Rights contains an express right to marry. This article analyses this provision, other United Nations human rights treaties, and relevant jurisprudence to determine whether art 23 applies to same-sex couples. In the only authoritative interpretation of art 23, Joslin v New Zealand, the United Nations Human Rights Committee found that it does not apply to same-sex couples. However, that decision is more than 12 years old and arguably would not be decided in the same way should a similar case come before the Human Rights Committee in the future. Using the principles of treaty interpretation, this article asserts that Joslin v New Zealand is no longer good law, and concludes that the right to marry should be interpreted in a non-discriminatory manner and should not be restricted exclusively to opposite-sex couples. This article also seeks to start a dialogue about the human right to marry’s intersectionality with and indivisibility from other human rights. As such, it suggests new, progressive ways of interpreting the norms of the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child as they relate to the human right to marry.

I Introduction

Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.¹

United Nations Secretary-General Ban Ki-moon

In the past decade, the human rights of lesbian, gay, bisexual, transgender and intersex (‘LGBTI’)² people have increasingly come to the fore of global human rights consciousness. However, whether the human right to marry encompasses same-sex couples remains subject to debate and conjecture. The reasons for this are manifold, and have complex political and cultural origins; that are not grounded purely in legal interpretation.

Domestically, the last decade has seen an increasing number of states recognise the right of same-sex couples to marry within their national legal systems. Since the Netherlands became the first state to legalise same-sex marriage in 2001, a further 18 states have followed suit: Belgium, Spain, Canada, South Africa, the United States (‘US’), Norway, Sweden, Mexico, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, and England and Wales.³ Although there appears to be a worldwide trend for states (or at least Western states) to recognise the right of same-sex couples to marry within domestic laws,⁴ there is yet to be global consensus on whether international human rights law includes such a right.

The right to marry is protected under art 23(2) of the International Covenant on Civil and Political Rights,⁵ but the question of whether this right includes same-sex couples remains open to interpretation. Domestic courts, treaty committees, charter-based bodies such as the United Nations (‘UN’) Human Rights Council, and civil society have all proffered various interpretations of art 23.

This article asserts that the Joslin v New Zealand decision⁶ is no longer good law, and that international human rights law should be interpreted to include a right for same-sex couples to marry. It does this by taking a holistic approach to the ICCPR and critically examining all relevant rights in this instrument, not just art 23 relating to marriage. This is followed by a consideration of relevant provisions in other international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights⁷ and the Convention on the Rights of the Child.⁸ In so doing, this article aims to interrogate international human rights law in a novel way, and to establish that a good faith interpretation of these treaties requires that the right to marry apply to all couples, regardless of gender.

II International Covenant on Civil and Political Rights

The relevant provisions of art 23 of the ICCPR state that:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

In interpreting the right to marry, and whether its scope could extend to same-sex couples, it is important to take note of the preamble of the ICCPR and the maxim of non-discrimination which is enunciated both as a stand-alone human right and as part of the right to marry.⁹ The preamble provides that the purpose of the ICCPR is to recognise ‘the inherent dignity and … the equal and inalienable rights of all members of the human family’.

The right to marry received its most prominent and frequently cited interpretation in the Human Rights Committee’s (‘HRC’) decision in Joslin v New Zealand. The key question in that case was whether the right to marry in art 23 included same-sex couples; the HRC concluded that the article protects only heterosexual couples. The rationale behind the decision has been criticised for its brevity and its inconsistency with both the doctrine of interpretation established by the Vienna Convention on the Law of Treaties¹⁰ and norms of human rights treaty interpretation previously elucidated by the HRC itself.¹¹ However, the Joslin v New Zealand interpretation of the right to marry remains authoritative opinion, and is commonly cited in documents on international human rights norms with regards to sexual orientation and gender identity.¹² As such, a detailed analysis of the opinion in the case is required in order to determine whether this is a decision made on solid foundations or one that should not be relied upon in the future.

The HRC concluded, in a brief three-paragraph analysis, that art 23 of the ICCPR does not protect the rights of same-sex couples to marry. It then summarily dismissed all the other alleged violations of the ICCPR, stating that:

In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.¹³

The HRC, using a semantic interpretation of the text, found that the use of the phrase ‘men and women’ in art 23(2), rather than the gender-neutral terminology used elsewhere in the ICCPR (‘every human being’, ‘everyone’ and ‘all persons’) ‘has been consistently and uniformly understood as indicating that … marriage [is] only the union between a man and a woman’.¹⁴

There are two criticisms of the HRC’s interpretation. First, the assertion that ‘men and women … has been consistently and uniformly understood as indicating that … marriage [is] only the union between a man and woman’ is contrary to the intention of the drafters and is not indicative of a gender specification in art 23. Second, applying the Vienna Convention art 23 should not be interpreted as excluding same-sex couples. In addition, the 12 years that have passed since this decision arguably lessen its relevance. This is because many more states have now legislated for same-sex marriage than at the time of the Joslin v New Zealand decision — including New Zealand, the State Party in the case. Moreover, the ICCPR is a living instrument that should be interpreted and applied in light of present circumstances. These considerations are each examined in-depth below.

A Gendered Language

The Joslin v New Zealand opinion noted that art 23 details the only substantive right in the ICCPR that uses the term ‘men and women’, and concluded that the use of this language requires a restrictive interpretation. Making reference to the travaux préparatoires, the HRC found that references to ‘husband and wife’ in the original drafting process of art 23 indicated the intentionality of the gender specificity of this article.¹⁵

However, this may be a misinterpretation of the drafters’ intention if it is considered outside of its historical context. The words ‘men and women’ in art 23 mirror the wording of art 3 of the ICCPR, which requires State Parties to ‘ensure the equal right of men and women’ to enjoy all Covenant rights. The travaux préparatoires of the ICCPR,¹⁶ as cited by the HRC in Joslin v New Zealand, focused on the need for gender equality within a marriage,¹⁷ and the prevention of underage or non-consensual marriages.¹⁸ The reference to ‘husband and wife’ in the travaux préparatoires was to defend the importance of including the right to marry in the ICCPR, ‘in view of great and unjust inequalities that existed as regards to the rights of husband and wife’.¹⁹ The travaux préparatoires suggest that the Commission on Human Rights²⁰ ‘should move forward boldly towards the realization of the principles of equality’.²¹

Thus, the drafting history reveals no intention to exclude same-sex couples. Rather, gendered language was adopted in order to emphasise the principle of equality between men a...