Integrated Human Rights in Practice
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Integrated Human Rights in Practice

Rewriting Human Rights Decisions

Edited by Eva Brems and Ellen Desmet

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.
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Chapter 5: Same-sex marriage in polarized times: revisiting Joslin v New Zealand (HRC)

Rewriting Human Rights Decisions

Malcolm Langford


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. However, this chapter argues that a project of human rights integration reveals, paradoxically, additional legal challenges for such an interpretation. 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 only be able to recognise marriage equality when the ordinary meaning of ‘marriage’ becomes ambiguous as to the gender identity of spouses.

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