Human Rights, Gay Rights, or Both? International Human Rights Law and Same-Sex Marriage
24 Pages Posted: 19 Jun 2017 Last revised: 2 Jul 2021
Date Written: 2016
Though the United States ties international aid to ending discrimination against lesbian, gay, bisexual, and transgendered persons, questions remain as to where human rights and LGBT rights intersect. According to the U.N. Charter, human rights apply to all human beings; human rights cannot be taken away by the state or others; and, in principle, no human right is more important than another human right. The Universal Declaration of Human Rights (DHR) and subsequent treaties, conventions, covenants and pacts, do not establish human rights because rights are inherent entitlements possessed by all human beings. Rather, these documents describe and guarantee human rights.
Article 23 of the International Covenant on Civil and Political Rights (ICCPR) places a positive obligation on nations to protect marriage because, according to the language of the ICCPR, the “family is the natural and fundamental group unit of society.” Thus, states may not interfere with marriage or the family without a legitimate purpose. When nation-states fail to recognize same-sex marriage, those nation-states fundamentally treat LGBT persons unequally due to the automatic advantages conferred to couples upon marriage.
This article argues that same-sex marriage has a basis in international human rights law, specifically ICCPR Articles 23 and 26. Emerging jurisprudence around the globe also points to a sea change in national laws regarding same-sex marriage. This change is evident not only in North America and Europe but also in Latin American countries and South Africa as well. If, as former Secretary of State Hillary Clinton asserted, “Gay rights are human rights. Human rights are gay rights,” then the fundamental human right to marry must also be extended to LGBT persons. Further, the United States government should encourage the recognition of same-sex marriage by including the right to marry in the rubric it uses to report on the status of LGBT persons around the world, a rubric that will then be used to confer aid through the World Bank, the United States Department of State and USAID.
Keywords: International Human Rights Law, Sam Sex Marriage, Gay Marriage, LGBT Rights, Marriage, Human Rights, World Bank, Aid, International Aid, International Covenant on Civil and Political Rights, Article 23, Article 26,
JEL Classification: K33, K36, K37
Suggested Citation: Suggested Citation