Depending on the domestic law status of de facto couples, there may be substantial differences in the benefits that flow to married as compared to unmarried couples. First, treaty body opinions are unenforceable. In interpreting the right to marry, and whether its scope could extend to same-sex couples, it is important to take note of the preamble of the ICCPR and the maxim of non-discrimination which is enunciated both as a stand-alone human right and as part of the right to marry.
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Laws containing grounds of direct and indirect discrimination may not be discriminatory if such laws are based on reasonable martied objective criteria. In countries where marriage is legislated on a state-by-state basis, such as the US, amendment of multiple pieces of legislation that impact same-sex couples, rather than simply amending a single piece of marriage legislation, may offer only partial and uncertain protection. Consistency in the application of the principle of non-discrimination, in light of the understanding of LGBTI rights as human rights, suggests that the right to marry should be interpreted as a human right for all.
The protection of the family has particular relevance to family units of same-sex couples with children, and their interest in associated legal protections that are afforded to children of married parents in many countries. Conversely, same-sex marriage, if mandated under the power of a central sedking, would require countrywide conformity with regards to marriage benefits.
In the only authoritative interpretation of art 23, Joslin v New Zealand, the United Nations Human Rights Committee found that it does not apply to same-sex couples. One study reported that 93 per cent of children were happier or better off when their same-sex parents were able to marry.
I Introduction Some say that sexual orientation and gender identity are sensitive issues. Article 2 prohibits discrimination in relation to the rights within the ICCPR, while art 26 provides for equality before the law and equal protection from discrimination by the law.
While it is arguable that amendments to both French and Austrian laws to permit same-sex second-parent adoptions would give the same substantive right without needing to permit same-sex marriage, this is problematic. However, the Council went on wimen note that states must permit same-sex couples to receive equal benefits as unmarried couples. States may struggle to justify their prohibition of same-sex marriage on objective and reasonable grounds in light of the UN consensus that the rights of all people are the same.
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Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere. While the interpretive maxims codified in ss 31 and 32 seekinv routinely applied by State Parties, there are important reasons why non-state actors, such as treaty bodies, should also be guided by these rules.
This is followed by a consideration of relevant provisions in other international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights  and the Convention on the Rights of the Child.
Marriage must be entered into with the free consent of the intending spouses. Presumably, if this language had been the subject of debate, Brazil would not have felt the need to make this drafting suggestion. Article 2 2 of the ICESCR contains the same non-discrimination provision as art 2 of the ICCPR: The States Parties eeeking the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind lpoking to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In this article, however, it has been used in a restrictive sense It seems, therefore, that in cases of the receipt of benefits, it will constitute discrimination if individuals, having obtained the highest level of relationship recognition permitted by the state — be that a civil partnership, a marriage, or some alternative — are denied equal benefits to those in similar circumstances.
In Joslin v New Zealand, the HRC avoided answering this question by stating that, as no right under art 23 had been found, no examination of breaches of other articles was required. There are many examples of modern interpretations being applied to the ICCPR and other human rights instruments. This reading requires the application of the principles of non-discrimination to all rights, and explicitly states that parentage should not be reason for excluding children from access to special measures of protection.
The treaties, as living instruments, should be interpreted and applied to include all people, regardless of their sexual orientation, gender identity or gender expression. The lack of consistent parental recognition is discriminatory and may be detrimental to the family unit. Domestically, the last decade has seen an increasing of states recognise the right of same-sex couples to marry within their national legal systems.
This article analyses this provision, other United Nations human rights treaties, and relevant jurisprudence to determine whether art 23 applies to same-sex couples.
Marrried, applying the Vienna Convention art 23 should not be interpreted as excluding same-sex couples. It does this by taking a holistic approach to the ICCPR and critically examining all relevant rights in this instrument, not just art 23 relating to marriage.
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An individual communication concerning a prohibition on same-sex couples marrying would not necessarily have to come before the HRC. However, the ACT legislation was struck down by the High Court in Decemberon the basis that it was unconstitutional as power to enact legislation relating to marriage belongs to the Federal Government.
While not a panacea, marriage equality is an excellent reform to help combat discrimination faced by children being raised in same-sex families. Amrried, that decision is more than 12 years old and arguably would not be decided in the same way should a similar case come before the Human Rights Committee in the future.
Marriage laws based on the protection of public morals may not satisfy a reasonable and objective requirement. I understand. Couples with an unregistered parenting partner risk the loss of continued custody rights should the biological parent die.
Such a communication could lead to the relevant treaty committee finding that marriage laws excluding same-sex couples breach the applicable treaty, and should therefore be amended to remove any discrimination based on sexual orientation or gender identity. However, this article should not be regarded as excluding other ways of founding a family, in the absence of marriage.
Since18 states have legalised same-sex marriage, as have several regions within states. Such a non-discriminatory approach would ensure that transgender and transsexual, gender-diverse and intersex people are covered by this human right. The key question in that case was whether the right to marry in art 23 included same-sex couples; the HRC concluded that the article protects only heterosexual couples.
This approach falls short of the comprehensive and established rules of treaty interpretation laid down in the Vienna Convention.