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Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times

E. Brems and E. Desmet, Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017).

University of Oslo Faculty of Law Research Paper No. 2017-12

26 Pages Posted: 8 Feb 2017 Last revised: 1 Mar 2017

Malcolm Langford

University of Oslo, Faculty of Law, Department of Public and International Law

Date Written: February 7, 2017

Abstract

In Joslin v. New Zealand (2002), the UN Human Rights Committee rejected the claim that marriage equality could be grounded in the International Covenant on Civil and Political Rights (ICCPR). Some scholars have argued that emerging state practice and a proper understanding of the drafting of the convention now justify the argument for marriage equality. Instead, this paper argues that a project of human rights integration reveals, paradoxically, additional legal challenges. Taking a departure point in relevant regional and national judgments, the chapter sets out a three-tiered cumulative argument for a right to same-sex marriage in Article 23(2) of the ICCPR. The crux of the argument is that the Committee will be able to recognise marriage equality when the ordinary meaning of ‘marriage’ becomes ambiguous as to the gender identity of spouses.

Suggested Citation

Langford, Malcolm, Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times (February 7, 2017). E. Brems and E. Desmet, Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017).; University of Oslo Faculty of Law Research Paper No. 2017-12. Available at SSRN: https://ssrn.com/abstract=2912904

Malcolm Langford (Contact Author)

University of Oslo, Faculty of Law, Department of Public and International Law ( email )

P.O. Box 6706 St. Olavs plass
N-0130 Oslo
Norway

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