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A shift in the united nations human rights committee’s jurisprudence on marriage equality? An analysis of two recent communications from australia

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journal contribution
posted on 2019-06-01, 00:00 authored by Oscar RoosOscar Roos, A Mackay
The United Nations Human Rights Committee has not considered whether the International Covenant on Civil and Political Rights (‘ICCPR’) encompasses a right to marry a person of the same sex since 2002 in Joslin v New Zealand. In Joslin v New Zealand the Committee determined that the right to marry contained in article 23(2) of the ICCPR referred only to opposite-sex marriage, and it foreclosed any separate claim based on the general right of non-discrimination contained in article 26 of the ICCPR. This article maintains that two recent communications to the Committee from Australia, C v Australia and G v Australia, prefigure a shift in the Committee’s jurisprudence on marriage equality. Although the Views adopted in 2017 by the Committee in each communication do not expressly disapprove of Joslin v New Zealand, on close analysis they support a re-interpretation of the right to marry which encompasses a right to marry a person of the same sex. In the alternative, in the event that the Committee continues to adhere to the Joslin v New Zealand interpretation of the right to marry, G v Australia and C v Australia support a determination that a State Party which fails to provide for marriage equality violates the article 26 right to non-discrimination.

History

Journal

University of New South Wales Law Journal

Volume

42

Pagination

747-781

Location

Sydney, N.S.W.

ISSN

0313-0096

eISSN

1839-2881

Language

English

Publication classification

C1 Refereed article in a scholarly journal, C Journal article

Copyright notice

2019, University of New South Wales Law Journal

Issue

2

Publisher

UNIV NEW SOUTH WALES, FAC LAW

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