A Harmonious Union? The Relationship Between States and the Human Rights Committee on the Same-Sex Marriage Issue

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International human rights law is having an increasingly significant impact on domestic debates around same-sex marriage. Within international human rights law, the treaty having the greatest impact is the International Covenant on Civil and Political Rights (ICCPR). The ICCPR contains guarantees of equality and non-discrimination. Furthermore, its Optional Protocol allows individuals to petition the United Nations Human Rights Committee (Committee) and assert government violations of their rights. Several individuals have petitioned the Committee, asserting that denials of same-sex marriage and partnership benefits at the domestic level violate the ICCPR. In response, the Committee has issued its views on the merits of the complaints. Domestic courts and other stakeholders in New Zealand, Australia and South Africa have increasingly utilized the “jurisprudence” of the Committee to support arguments in favor of same-sex marriage.

The Committee is sensitive to the climate of prevailing opinion within states. Accordingly, there exists a dialogue between the Committee and State Parties on the same-sex marriage issues. Five factors pertaining to the Committee-State Party dialogue are likely to influence the likelihood of the Committee articulating a marriage equality-protective interpretation of the ICCPR in the future. These factors are: (1) the number of state parties enacting same-sex marriage; (2) the level of “internal enforcement” of the Committee’s views through incorporation into national judicial decisions; (3) the level of “external enforcement” of the Committee’s views through bilateral and multilateral diplomacy; (4) the potential costs to the Committee’s legitimacy and reputation should it pronounce an ICCPR right to same-sex marriage before states indicate willingness to accept such a right; and (5) the degree to which same-sex marriage recognition remains overwhelmingly confined to Western states. At some point in the foreseeable future, the Committee will be sufficiently emboldened by positive indications from member states to hold that the ICCPR provides a right to same-sex marriage.