Same-Sex Partnership, International Protection

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Same-Sex Partnership, International Protection

Type: Part of book or chapter of book
Title: Same-Sex Partnership, International Protection
Author: Waaldijk, C.
Start Page: 1125
End Page: 1134
Publisher: Oxford University Press
Issue Date: 2012
Abstract: "This article is part of the 'Max Planck Encyclopedia of Public International Law' (www.mpepil.com); the online version of this Encyclopedia is subcription-only, but this article is one of the free sample articles that can be accessed at www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-e1739." International protection for same-sex partnership is a topic that has seen important developments recently, reflecting more extensive national developments in a growing number of countries. These national and international developments are likely to continue and to reinforce each other. The current state of international law seems to be quite clear on two points: discrimination between unmarried different-sex cohabitants and unmarried same-sex cohabitants is prohibited, and exclusion of same-sex couples from marriage is (probably) still permissible. In between those two points the field is less clear. There is growing support for the proposition that a registered partnership or same-sex marriage validly contracted in one country should be recognized by international organizations and — for certain purposes — also by other countries. And there are reasons to expect that international bodies will apply the prohibition of indirect discrimination to situations where same-sex partners are being excluded from certain legal benefits, because these are only available to married partners. This indirect discrimination argument, which focuses on providing specific benefits, rather than on obtaining status, has been accepted already in several domestic courts. In the short run, persuading international human rights courts and bodies to apply it will probably be the most effective way of increasing the international protection of same-sex partnership. Several countries have, in response to claims that marriage should be opened up to same-sex couples, introduced a form of registered partnership. Assuming that international human rights law will not soon require all countries in the world to open up marriage to same-sex couples, and assuming that many legislatures will be reluctant to attach all rights and obligations of marriage to non-registered cohabitation, it seems possible that some day international human rights courts and bodies will start to require that countries should introduce some alternative to marriage. Any claims in this field deserve serious attention, because, as the European Court of Human Rights has consistently put it, the right to respect for private life encompasses ‘the right to establish and develop relationships with other human beings’.
Editor(s): Wolfrum, R
Faculty: Faculteit der Rechtsgeleerdheid
Uri: urn:isbn:9780199291687
Handle: http://hdl.handle.net/1887/20108
 

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