Marriage: A Human Right for All?

2014 36(4) Sydney Law Review 643

26 Pages Posted: 11 Dec 2014

See all articles by Paula Gerber

Paula Gerber

Monash University - Faculty of Law

Kristine Tay

Monash University, Faculty of Law

Adiva Sifris

Monash University - Faculty of Law

Date Written: December 10, 2014

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.

Keywords: Same-sex Marriage, marriage equality, LGBT, LGBTI, ICCPR, gay marriage, ICESCR, CRC

JEL Classification: K33, K00

Suggested Citation

Gerber, Paula and Tay, Kristine and Sifris, Adiva, Marriage: A Human Right for All? (December 10, 2014). 2014 36(4) Sydney Law Review 643. Available at SSRN: https://ssrn.com/abstract=2536335

Paula Gerber (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Kristine Tay

Monash University, Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Adiva Sifris

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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