Rewriting Human Rights Decisions
Edited by Eva Brems and Ellen Desmet
Chapter 5: Same-sex marriage in polarized times: revisiting Joslin v New Zealand (HRC)
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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