Revisiting Joslin v New Zealand: Same-Sex Marriage in Polarised Times

The Sydney law review

Article 23 of the International Covenant on Civil and Political Rights contains an express right to marry. This article analyses this provision, other United Nations human rights treaties, and relevant jurisprudence to determine whether art 23 applies to same-sex couples. In the only authoritative interpretation of art 23, Joslin v New Zealand, the United Nations Human Rights Committee found that it does not apply to same-sex couples. However, that decision is more than 12 years old and arguably would not be decided in the same way should a similar case come before the Human Rights Committee in the future. Using the principles of treaty interpretation, this article asserts that Joslin v New Zealand is no longer good law, and concludes that the right to marry should be interpreted in a non-discriminatory manner and should not be restricted exclusively to opposite-sex couples. This article also seeks to start a dialogue about the human right to marry’s intersectionality with and indiv...

After giving an overview on the HRC and its competence to examine individual communications, the chapter analyses the case-law on LGBT and same-sex couples issues, in the latter case with regard to the right to marry and the right to the " widow pension " , i.e. the aspects specifically considered in its case-law. Different interpretative methods in approaching same-sex couples issues arise; in the case of marriage the literal interpretation of the ICCPR (Art. 23) does not support the right to marry between same-sex partners, while a more teleological approach to the Covenant (Art. 26) allowed to recognize them some rights not expressly provided for in the same treaty. The future case-law will tell if the Covenant can constitute the basis for the recognition of new LGBT rights, also with regard to the recognition of the sentimental link between two same-sex partners independently of the marriage. The chapter ends with some brief considerations on the HRC as a " desirable forum " for the protection of LGBT rights for people living in countries both benefiting and not of a regional system of protection of human rights.

On June 10 2003, the High Court of Ontario, ruled that the exclusion of same-sex couples from civil marriage infringes human dignity and breached Charter rights. This momentous decision resulted in hundreds of couples from Canada and overseas applying for marriage licenses and undergoing a legally recognised marriage ceremony. Globalisation has meant other jurisdictions have not been able to contain the ‘overflow’ of same-sex marriages across their borders. The uncontainability of same-sex marriages can be likened to that of the illegal immigrant who is at once alien yet confusingly and simultaneously a domesticated citizen. This article examines the impact of Ottawa’s marriage laws in the lives of same-sex couples in Australia. Internet communication and travel have produced a northern hemisphere zone for queers in the antipodes, inaugurating a ‘new imagining’ of legal relationalities and legitimacies. Whilst the gay community is uncertain about the legitimacy of supporting gay marriage over ‘bread and butter’ issues, same-sex couples continue to subvert this mêlée by leaving on a jet plane to Toronto, creating their own legal parallel universe. This article examines the gay and lesbian communities attempts to deal with same-sex marriage issues and the way narratives of citizenship are deployed within socio-legal talk.

SSRN Electronic Journal, 2000

The heterogeneous membership of international organizations—i.e. the existence of cultural, social and legal differences among member states—entails that, unlike what happens in the EU system, where the CJEU relies on an autonomous notion of 'family' in the interpretation of Staff Regulations and Staff Rules, international administrative tribunals generally base their decisions on the 'renvoi' to the lex patriae of the staff member. As a result, a gay or lesbian staff member may be entitled to spousal rights for his/her partner only if his/her home country allows same-sex marriage or a certain kind of recognized same-sex civil partnership granting social benefits equivalent to those accorded by marriage. Moreover, in interpreting the term 'spouse', both the UN Administrative Tribunal and ILO Administrative Tribunal rely on a dynamic, systematic and teleological interpretation of the law, rather than a static, formal-constructivist and originalist approach. 22.1 Scope of Research: The Jurisprudence of the UNAT and ILOAT as a Privileged Tool of Analysis This chapter focuses on the jurisprudence of international administrative tribunals 1 concerning employment benefits 2 for gay and lesbian people who are staff members of an international organization. By 'staff' I mean all agents/officials/officers/ employees having an employed or self-employed work relationship, whether

2015

AJPH, 2021

New Zealand's parliament legislated for marriage equality in 2013, over four and a half years ahead of the passage of similar legislation in Australia. Civil unions came into being in New Zealand in 2005 but had only been enacted at a state and territory level in Australia, often with a different name. How might we account for these divergences? This article offers a comparative account of the Australian and New Zealand situation in order to explain the different trajectories. It marks out some important political, legal and constitutional contextual issues, personalities and practices that shaped the ways in which the movement for marriage equality was enabled, resisted, and had an impact on people who wanted to marry.

2015

The aim of this research is to identify why LGBTQ people are prohibited from the institution of Marriage and to critically plot the development of same-sex marriage and legally recognised same-sex partnerships within England and Wales. An examination of why LGBTQ people are statute barred from the established act of Marriage but have only been able to enter into a formal legal partnership (CPA 2004) inferred as second-class in comparison to the status of Marriage will be explored at length. Equality is a central theme throughout, but specifically I discuss the effect of same-sex partnership legislation along with an examination of the development of a system to recognise actual same-sex marriage. The institution of Marriage, the Civil Partnership Act 2004 and the Marriage (Same-Sex Couples) Act 2013 are all separate institutions, and I will discuss their relationship to each other, along with a comparison of other jurisdictions with same-sex provisions currently in operation. The co...

2003

same-sex unions? This issue has prompted more controversy than any other area of social policy affected by Canada’s decision in 1982 to adopt the Canadian Charter of Rights and Freedoms. Lesbians and gay men argue that no principled reason exists to deny them the opportunity to marry, and they are confident that the Supreme Court of Canada will soon rule that a legal prohibition on same-sex marriage is unconstitutional. Yet a sizeable and increasingly vocal segment of the Canadian population remains staunchly opposed to the idea of gay marriage. Many believe that the moral and social norms for Canadian society are, and should remain, the heterosexual family and repudiate claims that equality under the Charter must embrace the legal recognition of same-sex relationships. Other critics accept that same-sex partners should be permitted to legally register their relationships if they so wish, but oppose same-sex marriage, preferring instead the idea of a civil union. Not only does the p...