As the Delhi high court gears up to broach the issue of legalising same-sex marriages under Indian law, one might wonder what role international law concerns have played elsewhere, for legal discourse inside court chambers. Unlike cases that seek to decriminalise sexual intercourse between consenting homosexuals, most of which cite Dudgeon v. United Kingdom, Toonen v. Australia and comparative jurisprudence (like in Navtej Singh Johar v. Union of India), marital equality cases address treaty obligations in characteristically peculiar ways.
The three-group jurisprudential taxonomy
The manner in which national courts across the globe have consulted international law principles in rendering favourable rulings for same-sex marriage pleas can be studied via three categories: (1) jurisdictions that lack meaningful engagement with international law; (2) jurisdictions which place reliance on treaty obligations and comparative trends for their decisions; and (3) jurisdictions that insist on compliance with decisions of bodies established by international human rights instruments.
A majority of states that have legalised same-sex marriages by dint of judicial decree, fall under the first group. None of the judgments pronounced by courts of Austria, Canada and Taiwan, in the favour of marital equality for the LGBT community even make a passing reference to international law. Out of over 20 such cases decided by US courts, only one earmarks the space for a single sentence connected to international law. Even when South Africa’s Constitutional Court examined international law, it simply concluded that there was nothing in the content of that law to preclude the legalisation of same-sex marriages; in saying so, the court also inferred that international law granted its countenance only to the right of solemnising heterosexual marriages. A crucial opportunity to scrutinise non-discrimination obligations under international human rights instruments was therefore, lost once again.
The same is true for the 6:3 split decision (dated April 28, 2016) of Colombia’s Constitutional Court. Much like South Africa, this ruling involves merely a perfunctory assessment of international law. While the majority judgment unsystematically stressed on interpreting the constitutional right to marry and found a family on the lines of “international standards” on the matter, the dissenting opinion categorically laid down that in international law, there is no clear or express provision, norm, convention or judicial ruling that obliges states to extend the effects of marriage to same-sex couples in their regulations, since it is considered a matter of competence of national legislatures (the IACtHR ruling discussed below had not been released when this was decided).
The only outlier in respect of anatomising the impact of international non-discrimination jurisprudence on same-sex marriage petitions seems to be the Mexican Supreme Court. It has relied on principles emanating from international law to render favourable constitutional interpretations.
Court decisions that fall under the third group are the ones that feature legalisation of same-sex marriage as a function of the Advisory Opinion (November 2017) issued by the Inter-American Court of Human Rights (IACtHR). Having recognised equality and non-discrimination as jus cogens (see, para 61), the IACtHR propounded a purposive construction of Article 17(2) of the American Convention on Human Rights (ACHR) against the backdrop of gender-neutral expression of the right to establish a family in Articles 5 and 6 of the American Declaration of the Rights & Duties of Man, and Article 15 of the Protocol of San Salvador. On that basis, the IACtHR demanded that governments recognise all the rights derived from a family relationship between same-sex couples, including marriage. This ruling prompted the Supreme Court of Costa Rica and that of Ecuador to declare the prohibition on same-sex marriages in those jurisdictions, unconstitutional.
Explaining international law’s diminished role
Though the dearth of comprehensive engagement with international law in same-sex marriage matters reflected by the taxonomy described above might appear to be happenstance, it may implicate a pattern that could appositely track its causation. Among other things, all jurisdictions of the first group share one commonality – they are all parties to the International Covenant on Civil & Political Rights (ICCPR); this contrasts them with decisions by courts of those jurisdictions that fall under the third group, as parties to the ACHR. This attribute is key to disinterring the cause animating the phenomenon in question.
Unlike the ACHR, the ICCPR has not had a history of case law propitious for the prospect of same-sex marriages; in fact, interpreting Article 23 of ICCPR and treating it as lex specialis over Article 26’s non-discrimination requirements, the UN Human Rights Committee in Joslin v. New Zealand, held that New Zealand had not infracted the ICCPR by refusing to provide recognition to same-sex marriages. The UNHRC wrote: “Use of the term ‘men and women’, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.” This was despite the UNHRC’s declaration of ‘sexual orientation’ as a protected ground under the ICCPR, in Toonen v. Australia.
Apart from case law approving an international law obligation on member states to legitimise same-sex marriages, the ACHR’s regime has two more advantages over the ICCPR: (a) incorporation of the principle of non-discrimination in the clause that assures marital rights (making it harder for courts to adopt the ratio decidendi of Joslin); and (b) certainty on the nature of obligations that the treaty expects compliance for.
While the former is clear from a reading of Article 17(2) of the ACHR, the latter calls for a detailed examination. Plenty can be said about the ruling in Joslin (a significant portion of which has been said here), but what is relevant for the current analysis is that the ruling was contrary to established principles of interpreting international law and incompatible with its previous decisions.
In Toonen, the UNHRC enlarged the contours of ‘sex’ as a protected ground under the ICCPR to include ‘sexual orientation’; making it a non-derogable element of the ICCPR’s right to non-discrimination (since ‘sex’ is one such ground that affords that entitlement as per General Comment No. 18 – Non-discrimination, 37th session 1989). Further, it is well settled that where an insular application of special law (i.e., a parochial view of Article 23 ICCPR in Joslin’s case) frustrates the purpose of the general law (i.e., ICCPR for Joslin’s case), resort to lex specialis should be avoided. In that regard, the purpose of the ICCPR is clear from General Comment No. 18: the prohibition of discrimination in law or in fact in “any field regulated and protected by public authorities”. Needless to say, the HRC’s interpretation of Article 23 in isolation of non-discrimination obligations under Articles 2 & 26, upended consistency within the ICCPR by preferring a blatantly discriminatory construction.
More egregiously, the regressive reading of Article 23 in Joslin, is at odds with the approach that the UNHRC espoused while deciding Toonen. Even in Toonen, it was argued that the ICCPR’s drafters and the state parties entering it did not intend to include ‘sexual orientation’ under the protected ground of ‘sex’. Indeed, the travaux préparatoires of the ICCPR do not signify that sexual orientation was considered as a protected ground at all. The classification of homosexuality as a disorder at the time when ICCPR was drafted and adopted, only strengthens that inference. Despite this, the HRC introduced sexual orientation as a protected ground under the ICCPR.
Other than these glaring inconsistencies, what muddies the waters of ICCPR obligations even more is the fact that undeterred by Joslin, the HRC is now exhorting states to legalise same-sex marriages to comply with their treaty obligations under Articles 2 & 26 (to Australia, Mauritius, Hungary and Bulgaria).
The ambivalence of what ICCPR demands explains why national courts of state parties might harbour misgivings about meaningful engagement with international law in same-sex marriage cases. This is not to deny other factors that may have influenced the phenomenon in question. Further, the present analysis is not to indicate that one treaty is textually predisposed to equal rights adjudication and the other is not; instead, what is material to note is that vacillation-versus-certainty on the question of what a treaty requires from its state parties tracks hesitancy of national courts in relying on international law for ruling on same-sex marriage cases.
Confecting an alternative, more coherent paradigm
The inconclusiveness of international law obligations vis-à-vis same-sex marriages notwithstanding, nothing proscribes an alternative characterisation anchored to the following propositions. Firstly, the express mention of ‘men and women’ in marital rights clauses of international instruments can easily be interpreted to confer a right on every man/woman to marry (as opposed to asserting that the right is only for every man to marry a woman and vice-versa).
Secondly, the contemporary tide of favourable decisions from national courts and regional judicial bodies (like the IACtHR) coupled with the UNHRC’s recent recommendations to state parties, could successfully validate the argument of there being a customary international law obligation on civilised nations to recognise same-sex marriages. These developments could also be viewed as having altered treaty obligations under the ICCPR, which had earlier been ossified by Joslin. This jurisprudential paradigm could in turn, encourage national courts addressing same-sex marriage petitions, to draw strength from international law in the future.
Jaideep Singh Lalli is an undergraduate student reading for BA LLB (Hons) at the University Institute of Legal Studies, Panjab University, Chandigarh.
Ashna Singh is a practising advocate, who completed her BA (Hons) in Psychology, LLB and LLM in Constitutional law from Panjab University, Chandigarh. Currently, she is also working as a judicial clerk-cum-legal researcher at the Punjab & Haryana High Court.