The Gender-Neutrality of the International Right to Marry: Same-Sex Couples May Still Be Excluded from Marriage, But Their Exclusion – And Their Foreign Marriages – Must Be Recognised

Forthcoming book International LGBTI Law edited by Andreas R. Ziegler

34 Pages Posted: 14 Aug 2018

See all articles by Kees Waaldijk

Kees Waaldijk

Leiden University - Leiden Law School

Date Written: July 23, 2018

Abstract

This analysis of the text and textual history of the international human right to marry, and of the emerging international case law on same-sex marriage, suggests that the international human right to marry is indeed gender-neutral: it does not exclude same-sex couples and it does not exclude transgender individuals. In particular, the preparatory documents to the Universal Declaration of Human Rights show that the words “men and women” in the right to marry were not inserted in order to exclude same-sex marriages, but in order to emphasize the equality of women and men. However, the analysis also shows that international human rights law still allows countries to exclude same-sex couples from marriage, and that it allows countries to deny individuals the right to remain married while changing their legal gender.

Nevertheless, the growing number of countries opening up marriage has already had an impact on developments in international law, where now a trend is emerging to acknowledge existing same-sex marriages and to require legal recognition – in a growing number of contexts – of foreign same-sex marriages. And in several ways international staff law and international human rights law now acknowledge that in many countries same-sex partners have no access to marriage, and that this fact must be taken into account in law. Furthermore, the Inter-American Court of Human Rights has acknowledged an obligation of countries to work towards ensuring same-sex couples access to marriage. For the time being, it appears that for same-sex partners the right to enter into marriage is not yet seen as part of the ‘very essence’ of the human right to marry. Instead, recent developments in international law suggest that the very essence of the international right to marry now has three aspects for same-sex couples: the right to enjoy certain core rights and benefits; the right to have access to some form of partnership registration; and the right to see their existing marriages recognised abroad.

Keywords: Right to marry, Same-sex marriage, Universal Declaration of Human Rights, Legal recognition, Foreign marriages, European Court of Human Rights, Inter-American Court of Human Rights, UN Human Rights Committee

Suggested Citation

Waaldijk, Kees, The Gender-Neutrality of the International Right to Marry: Same-Sex Couples May Still Be Excluded from Marriage, But Their Exclusion – And Their Foreign Marriages – Must Be Recognised (July 23, 2018). Forthcoming book International LGBTI Law edited by Andreas R. Ziegler. Available at SSRN: https://ssrn.com/abstract=3218308

Kees Waaldijk (Contact Author)

Leiden University - Leiden Law School ( email )

PO Box 13228
The Hague, 2501EE
Netherlands

HOME PAGE: http://www.universiteitleiden.nl/en/staffmembers/kees-waaldijk

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