Is International Law Gay-Friendly?
The recent rulings of the U.S. Supreme Court on same-sex marriage (both dated 26 June 2013: U.S. v. Windsor, 2013 U.S. LEXIS 4921 and Hollingsworth v. Perry, 2013 U.S. LEXIS 4919) triggered the question of whether States should recognize the right to marry a person of the same sex. In fact, not a week goes by without significant improvements in the recognition of rights of same-sex couples at various degrees. For instance, a few days ago Queen Elizabeth signed into law a bill on same-sex marriage, whereas Uruguay and France have enacted similar laws respectively in April and May. All continents are involved in such a process, and yet not all countries seem to look at the matter in the same way.
On 11 July 2013, Advocate General Eleanor Sharpston presented its opinion on a request of a preliminary ruling to the Court of Justice of the European Union concerning three immigrants from Sierra Leone, Uganda and Senegal – three nations where homosexual acts between consenting adults amount to grave crimes and are subject to heavy punishment. The Ugandan legislature is nowadays discussing a so-called “Kill-the-Gay Bill”, which would punish “aggravated homosexuality” with the death penalty and “the offense of homosexuality” with life imprisonment. At the end of June, Russia passed a law punishing any “propaganda on non-traditional sexual relations” and President Putin has been reported to have ordered the police to arrest openly gay tourists. Last but not least, a few days ago international news referred that the gay activist Eric Lembembe was found beaten to death in his house in Youndé, Camerun. Hence, comparing the U.K. or certain sister states within the U.S. with some African counterparts reveals that the world is not leading to the same direction, and this is an unquestionable fact.
But what about international law? No doubt international law expressly recognizes the right to privacy, the right to marry and the right not to be subject to discrimination, all rights indeed provided by norms which are common to the Universal Declaration of Human Rights of 1948, the European Convention on Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966, and the American Convention on Human Rights of 1969. However, different interpretations seem to exist regarding the extent to which each of these rights concretely applies to gay people or same-sex couples. More specifically, the intensity of this recognition may depend upon several factors such as the social acceptance of homosexuality, the acknowledgment of homosexual orientation as a personal characteristic and not as a choice, the influence of religion or of religion-inspired parties in the political debate, and the strength and credibility of domestic gay advocates and associations. We may also distinguish different levels of protection.
First, at a global level, international norms do not seem gay-friendly at all. If one looks at the 2008 French proposal to the U.N. General Assembly to introduce a standstill on national laws punishing homosexual acts between consenting adults, the resulting impression may be disappointing, for the proposal was rejected with questionable justifications. Last year, however, the U.N. High Commissioner for Human Rights published a booklet (Born Free and Equal. Sexual Orientation and Gender Identity in International Human Rights Law) in which it stigmatized “a pattern of systematic violence and discrimination directed at people in all regions because of their sexual orientation” and contended that all States have an obligation, under international law, to protect the fundamental human rights of gays and lesbians. Accordingly, States are committed to protect people from homophobic violence, prevent torture and cruel, inhuman and degrading treatment of gay people, repeal laws criminalizing homosexuality and safeguard gays’ freedom of expression and associations. In this respect, the U.N. and other international institutions, by which States can easily communicate and directly share opinions on common concerns, are incrementally influencing individual nations and causing significant discussions on the national stage. Legal changes will surely take place, but they will presumably require a certain time.
Regional environments are more favorable, in particular Europe and the Americas. The European Court of Human Rights has developed a well-settled jurisprudence on gay rights, which includes: the right to privacy (see Dudgeon v. U.K., 22 Oct. 1981, No. 7525/76); the right of not being discriminated against based on sexual orientation in matters related to child custody (Salgueiro da Silva Mouta v. Portugal, 22 Dec. 1999, No. 33290/96), insurance (P.B. & J.S. v. Austria, 22 July 2010, No. 18984/02), housing (Karner v. Austria, 24 July 2003, No. 40016/98 and Kozak v. Poland, 2 March 2010, No. 13102/02) and tax exemption relating to child support (J.M. v. U.K., 28 Sept. 2010, No. 37060/06); the right to adopt (to the extent that national laws entitle singles to accede adoption: see E.B. v. France, 22 Jan. 2008, No. 43546/02, which overruled Fretté v. France, 26 Feb. 2002, No. 36515/97); and the right to secondparent adoption for same-sex cohabiting couples (X & Others v. Austria, 19 Feb. 2013, No. 19010/07).
As to same-sex marriage, the European Court established that, given the lack of consensus existing at the moment among the 47 Contracting States, Art. 12 of the European Convention on Human Rights does not grant same-sex couples the right to marry, neither does Art. 8 combined with Art. 14 pertaining nondiscrimination based on sexual orientation (Schalk & Kopf v. Austria, 24 June 2010, No. 30141/04). However, in the same ruling the Court firmly pointed out that gay and lesbian couples are “family” under Art. 8. Such a statement not only contradicts various precedents of the same Court, but also does open same-sex couples to the enjoyment of a potentially indefinite number of “family” rights at the national level (like in Italy: see Cassation Court, 12 March 2012, No. 4184). Furthermore, the Court’s reference to the existing consensus among the Contracting States could justify an overruling of this judgment in the future, should national marriage equality laws be passed in the majority of Contracting States.
In respect of America, in 2012 the Inter-American Court of Human Rights found that Chile’s refusal to recognize the family relationship occurring between the applicant, a female lesbian, and her children amounted to a discrimination based on sexual orientation. Significantly, the Court recommended rehabilitation and appropriate reform by Chile in order to repair the damages suffered by the applicants (24 Feb. 2012, Atala Riffo & Daughters v. Chile, Case No. 12.502).
Given this fragmented situation, we may appreciate that the recognition of human rights of gay and lesbian people at the national level would cause international law to move soon, through supranational courts referring to the States’ consensus, towards a model of protection for same-sex couples. This process will typically take place at a regional level. In any event, even if domestically same-sex marriage remains almost exclusively a matter of legislature, and therefore of politics, human rights lie at its very foundation. In this sense, globally international law could be considered an effective channel through which gay-friendly States talk to other States and perhaps, in the long period, convince them to change their attitude. The language for such a discussion would be international human rights law, a language that a growing number of nations would be hopefully available to speak to each other in the near future. International law will become truly gay-friendly when most nations talk this same language—a language of dignity, equality and justice.