An Analysis of the disposition espoused by international law with regard to same sex marriage
Anzabwa, Ian Omutimu
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The purpose of this study is to establish the disposition espoused by international law with regard to same sex unions. Article 23 of the International Covenant on Civil and Political Rights contains an express right to marry. This dissertation 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 dissertation 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. Moreover, this dissertation juxtaposes the United Nations framework to the European one in so for as the LGBTQI agenda is concerned.