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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.

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Matteo Winkler

Matteo Winkler

2 Comments

  1. Daniele Gallo
    luglio 25, 2013 at 3:08 pm — Rispondi

    Matteo, four comments on your terrific post.
    The first three are broad.
    The fourth concerns a specific jurisdiction, that of international administrative tribunals, in relation to their case law on international gay officials working in international organizations (UN tribunals, ILOAT, etc.), when they ask for employment benefits.
    1) The issue of same-sex couples’ rights prompts us to investigate rationale, status, extent and limits of the principle of non-discrimination at international and supranational level, that is, a general principle of law which is evolving and whose content tends to be historically and geographically determined.
    Can we say that its essential nucleus, at international level, comprises also the protection of gay couples (not gay per se)? I would say no, unfortunately.
    At regional (and supranational) level, however, things may change: think of the vis expansiva implied in the notions of free movement and family reunification in EU law.
    2) In any case, the extent to which judges acknowledge the existence of an inviolable core of rights implied in such principle and the way in which they interpret it are two factors that have a strong impact on the powers and functions of the legislature. Here I come to my second comment.
    The interpretation of the courts can, indeed, have the effect of urging or even requiring lawmakers to take action, i.e., to pass new legislation or amend existing laws. It is a problem of balancing the powers between the legislature and the judiciary when at stake is the issue of same-sex couples’ rights.
    The issue becomes even more complicated when the courts in question are not only national but also supranational, and when their jurisprudence has an impact on both national legislators and judges. Here the matter of separation of powers tends to be naturally seen as a matter of State sovereignty in family law.
    As happens, mutatis mutandis, when the matter is the one of the economic crisis and welfare state, family law raises problems and questions regarding legitimacy and democracy. Stricto iure, it is often a problem of interpretation: in response to several issues raised by same-sex couples around the world, some national, supranational and international jurisdictions have been progressive, dynamic, activist and even creative in their interpretation of the law, while others have been conservative, static, literal and originalist.
    Judges do not create the law (Klabbers), but they interpret and even shape it and by doing so represent a crucial antidote against populism, as well as a fundamental barrier to the tyranny of the majority. When rights resulting from social and cultural changes are at stake, my opinion is that judges, without being necessarily ‘creative’ agents of change (Cappelletti), should be active in acknowledging the socio-cultural transformations occurred in modern society and providing a legal framework for them.
    Concepts such as equality change and in this change lies (also) the universal character of human rights.
    3) A trend in the recognition of same-sex couples’ rights is undisputable. Well, it is interesting to note that this progress shows how rights can be taken seriously and put in action through horizontal and vertical dialogues between national legislatures and domestic/supranational courts. More specifically, as regards the horizontal and vertical dimensions of the judicial dialogue, in some national jurisdictions’ reasonings are grounded on comparative law as well as on the case-law of supranational courts, such as the ECtHR and the Inter American Court of Human Rights (IACtHR). This shows the “maieutic” force (von Bogdandy) of legal pluralism as well as a desire on the part of national judges to find an external legitimization for their rulings. As to supranational courts, the decisions of the ECtHR, the CJEU’s and the IACtHR’s have been crucial in paving the way for national legislation recognizing same-sex couples’ rights (UK and Germany), including, in some countries, marriage equality (Spain and Portugal). However, it must be noted that they do not require Member States to recognize same-sex partnerships or marriage; instead, they have chosen to opt for the highest possible degree of rights protection, adopting a flexible interpretation, respectively, of the ECHR, EU law and the American Convention on Human Rights. And yet one thing is to use a broad interpretation of applicable laws, another thing is to require Member States to adopt such laws; one thing is to encourage national legislatures to step in, another is to impose legislative changes through the ‘denationalization’ (de Burca) of crucial national family-law regimes. But on this we already had a dialogue some months ago!
    4) Finally, I would just mention that in several cases both UNAT and ILOAT have opted for a flexible and inclusive interpretation of the terms ‘spouse’ and ‘marriage’ contained in the Staff Regulations and Rules of specific international organizations when officials have entered into a domestic partnership (not marriage). Of course, those courts combine this interpretation with a renvoi to the lex patriae of the staff member. This means that gay officials, such as those coming from Italy, who cannot neither marry nor build a partnership, are always subject to discrimination.
    In this connection, why not exploring the possibility to opt for the lex celebrationis or the law of residence of the staff member?

  2. Laura Magi
    luglio 25, 2013 at 6:57 pm — Rispondi

    Hi Matteo, I share your view about the usefulness of the method of consensus in order to recognize the majority of the rights homosexuals claim, while I am less convinced that it is the suitable criteria in order to press States to grant them other rights (especially the right to marry and to adopt).

    Moreover, I would like to keep the attention on the fact that in order to grant rights to same-sex couples, in the Inter-American system of human rights protection the “consensus method” has even been superseded.
    Indeed, in the Atala Riffo case the Inter-American Court did not attempt to check whether a consensus in favor of the recognition that stable unions between same-sex individuals as families could be said to be formed among the States Parties to the Inter-American Convention. It recognized such a right only recalling the opinion of various human rights organs created by treaties. Among them, it mainly made reference to the judgments of the ECtHR.
    The reason beyond the approach is understandable, I believe, by taking into account the fact that the Court was aware of not having been able to prove the existence of such a consensus in a continent where violence suffered by homosexuals is still very significant and where cultural suspicion and ostracism toward them is still widely practiced. But whether the exclusive reference to the decisions of other international fora is sufficient to justify the above mentioned interpretation is, in my view, open to debate. The decision is likely to appear imposed from outside, while an analysis of the legal status and rights recognized for homosexuals in the Contracting States of the American Convention would have enabled the Court to justify its decision on the evolution of social behavior and cultural sensitivity in the Contracting States, enhancing the behavior of States Parties in which homosexuals’ rights have been receiving protection and recognition.

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