A shift in the United Nations Human Rights Committee's jurisprudence on marriage equality?: An analysis of two recent communications from Australia

• Published in: University of New South Wales law journal Vol. 42; no. 2; pp. 747 - 781
• Main Authors: Roos, Oscar I, Mackay, Anita
• Format: Journal Article
• Language: English
• Published: 01.06.2019
• Subjects: Civil marriage; Discrimination; Human Rights Committee; Jurisprudence; Law and legislation; Marriage law; Same-sex marriage; United Nations; United Nations. Human Rights Committee; NEW ZEALAND; AUSTRALIA; UNITED NATIONS
• ISSN: 0313-0096
• DOI: 10.53637/DLEY3725

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.