A Shift in the United Nations Human Rights Committee's Jurisprudence on Marriage Equality? An Analysis of Two Recent Communications from Australia

Abstract

The United Nations Human Rights Committee has not considered whether the International Covenant on Civil and Political Rights (‘ICCPR’) encompasses a right to marry a person of the same sex since 2002 in Joslin v New Zealand. In Joslin v New Zealand the Committee determined that the right to marry contained in article 23(2) of the ICCPR referred only to opposite-sex marriage, and it foreclosed any separate claim based on the general right of nondiscrimination contained in article 26 of the ICCPR. This article maintains that two recent communications to the Committee from Australia, C v Australia and G v Australia, prefigure a shift in the Committee’s jurisprudence on marriage equality. Although the Views adopted in 2017 by the Committee in each communication do not expressly disapprove of Joslin v New Zealand, on close analysis they support a re-interpretation of the right to marry which encompasses a right to marry a person of the same sex. In the alternative, in the event that the Committee continues to adhere to the Joslin v New Zealand interpretation of the right to marry, G v Australia and C v Australia support a determination that a State Party which fails to provide for marriage equality violates the article 26 right to non-discrimination.

Keywords: marriage equality, non-discrimination, human rights, civil rights

JEL Classification: K32, K36