Master’s Thesis
The Right to Relate as Customary Norm of
International Law
Name: Rik Dekker
Studentnumber: 5873274
Mastertrack: Public International Law Supervisor: prof. dr. Y.M. Donders Numbers of EC’s: 12
Word count: 15.974
1 “Love is a freedom.”1
1 A girl in the Youtube-video “Kids React to Gay Marriage”, at 7:47,
2
Tabel of Content
Introduction ... 4
1. The right to relate ... 7
1.1. Definition and development ... 7
1.1.1. European origin ... 7
1.1.2. UN Human Rights Committee’s indirect position ... 9
1.1.3. Inter-American Court’s explicit recognition ... 10
1.1.4. Supreme Court of the United States: right to marry ... 11
1.1.5. Definition. ... 12
1.2. Normative content of the right to relate ... 13
1.2.1. The object ... 13
1.2.2. Obligations. ... 15
1.2.3. Right-holders ... 16
1.2.4. The addressee ... 17
1.3. Concluding remarks of the first chapter... 18
2. Customary international law as source of the right to relate? ... 19
2.1. Criteria for customary international law ... 19
2.1.1 Practice ... 19
2.1.2. Opinio juris ... 20
2.1.3. Emergence of customary international law ... 21
2.2. Review of State practice ... 22
2.2.1. United Nations ... 22
2.2.2. Regional practice ... 24
Practice in the European Union... 24
Practice in the Council of Europe ... 25
Practice in the Organization of American States ... 25
2.3. Review of opinio juris ... 27
2.3.1 Opinio juris in State practice... 27
2.3.2. Yogyakarta principles ... 28
2.4. Customary norm emerging? ... 29
3. The persistent objector ... 32
3.1. The doctrine ... 32
3.2. Russia’s Anti-Propaganda Law ... 35
Fedotova-case. ... 35
Alekseyev-case. ... 36
3
3.3. Organization of Islamic Cooperation ... 39
Bahrain, Djibouti and Indonesia. ... 40
Jordan, Niger and Tajikistan. ... 40
Persecutors with unclear objections. ... 42
3.4. African States... 43 3.5. Conclusion. ... 44 4. Conclusion ... 45 4.1. Conclusions ... 45 4.2. Follow up research. ... 47 Bibliography ... 48
4
Introduction
In his inaugural lecture, professor Waaldijk proposed to speak of the right to relate as the common theme in all issues of sexual orientation law.2 He deduces this right to relate from international
case-law of the European Court of Human Rights,3 the Inter-American Court of Human Rights,4 the U.S.
Supreme Court5 and the Constitutional Court of South Africa,6 and Waaldijk defines it as the “right to establish and develop relationships”.7 The courts interpreted the right to relate as an aspect of the
treaty rights to privacy and family life, but I would say the right is more fundamental or basic than just being an aspect of a different right. The definition and the elaboration on this legal right by Waaldijk raises the question whether this right is a sub-right or whether it could be seen as an independent legal right.
To establish a rule under the international law, it has to be found in the recognised sources of international law. So it is important to examine in which sources the right to relate can be found. Article 38 of the Statute of the International Court of Justice declares which sources of international law exist. 8 There is no treaty that explicitly contains an independent right to relate and courts
originally derived the right to relate from the treaty right to privacy. Therefore treaty law cannot be a source for the right to relate as an independent legal right. The only two possibilities left are
customary international law and general principles. As is in their name, general principles are general. Their purpose is to fill gaps between treaty law and customary international law9 and they
are an instrument for courts to apply fundamental rules that are needed by the international legal order to function.10 It follows that only customary law is a realistic source for the right to relate as an
independent legal right. There is another reason why it is important to determine whether the right to relate could be a customary international norm. Not all States are party to the treaties this right is
2 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012.
https://openaccess.leidenuniv.nl/bitstream/handle/1887/19612/Waaldijk%20-%20The%20right%20to%20relate%20-%20inaugural%20lecture%202012.pdf?sequence=2 (last opened 15-5-2014)
3 ECtHR, 16 December 1992, Niemietz v. Germany, appl. 13710/88. 4 Inter‐Am. Ct. H.R. 30 August 2010, Fernández Ortega et al. v. Mexico. 5 U.S. Supreme Court, Roberts v. United States Jaycees, 468 U.S. 609 (1984).
6 Constitutional Court of South Africa 9 October 1998, National Coalition for Gay and Lesbian Equality v.
Minister of Justice.
7 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012, p. 8.
8 Statute of the International Court of Justice, 26 June 1945
9 M.N. Shaw, International Law, New York: Cambridge University Press 2008, pp. 98 and 105. 10 For example the principles of good faith, pacta sunt servanda and res judicata.
5 derived from. Giving customary international law status to the right to relate would also bind those States, making the right to relate more widely applicable.
Customary international law can only be established by States and courts when certain criteria are fulfilled. This master thesis is nor a judgment, nor written on behalf of a State. Therefore this thesis will only examine the potential existence of a right to relate in customary international law, but does not aim to establish and prove a customary international norm. Hence the main question of this thesis will be whether the right to relate can be a norm customary international law.
For the potential of the right to relate to become a customary norm, the existence of persistent objectors also is important. If a great number of States or even a majority already persistently objects to this right, the potential for the right to become a customary norm is lower than when there are no persistent objections at all. When you look at a number of countries, it appears that a right to relate is not even developing. For example the Russian law that bans the propaganda of non-traditional sexual relationships to minors, which is restricting the right of LGBT Russians to express themselves and the right of people to be educated. Or the anti-homosexual laws in African and Islamic countries which criminalize and penalize homosexuality with long imprisonment or death sentences.11 These
situations give rise to the question whether these states are persistent objectors to the development of this right as a customary norm or whether they are the proof of the non-existence of the right. Based on the above, the structure of this thesis is as follows. In Chapter 1 the right to relate will be elaborated on. How can it be defined and what consequences does this right have? To find a definition a study is made from case-law. This case-law partly is mentioned by Waaldijk and partly is new case-law. For the consequences of this legal right, Waaldijk’s inaugural speech and secondary literature are used. I will also argue that the right to relate is a piece of the human rights puzzle that fits in perfectly, but which we did not know it existed yet. Having defined the right to relate, Chapter 2 will examine the possibility of the right to relate as a customary international norm. What is needed for the right to be such a norm and is there enough potential? To determine the potential resolutions of international organizations, international reports and judgments of international courts are used. Chapter 3 lastly resolutions, statements and treaties will be reviewed to consider the situations in Russia, African and Islamic States. This is done in order to assess whether persistent objectors to the possible customary norm can be identified. In the conclusion this thesis will summarize the main questions and the findings. It will also try to answer the questions. As said
6 above, this thesis does not look for definite answers, but will only give a directional answer from where more research could be done.
7
1. The right to relate
Before inquiring the possibility of the right to relate being an international customary norm, a definition has to be given and an analysis on the structure and substance of this right has to be made to know what it consists of.
1.1. Definition and development
Professor Waaldijk redefines the right to establish and develop relationships with other human beings set forth by some international and national courts as the right to relate.12 For the origin of
this right, the case-law of the European Commission of Human Rights (ECommHR)13, the European
Court of Human Rights (ECourtHR)14, and the Inter-American Court of Human Rights (Inter-American
Court)15 are the most important. As support Waaldijk also mentions three national cases from the
United States,16 South Africa17 and Fiji.18 Additionally, Waaldijk mentions the Toonen case19 from the
UN Human Rights Committee (HR Committee) with the remark that the Committee has not had the chance to consider the right to relate, but later in this section I will argue that the Committee in an indirect way did do so in Coeriel and Aurik v. The Netherlands.20
1.1.1. European origin
The right to relate was first introduced in two decisions the ECommHR delivered shortly after each other. The ECommHR stated in X. v. Iceland that “the right to respect for private life […] comprises
also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development of one’s own personality”.21 The next day the
ECommHR expanded this view in Brüggemann and Scheuten v. Germany where it repeated its view and added that “therefore sexual life is also part of private life”.22
12 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012, p.8.
13 Eur. Comm’n H.R. 18 May 1976, X v. Iceland, appl. 6825/74 (admissibility); Eur. Comm’n H.R. 19 May 1976, Brüggemann & Scheuten v. Germany, appl. 6959/75 (admissibility).
14 Eur. Ct. H.R. 16 December 1992, Niemietz v. Germany, appl. 13710/88, para. 29.
15 Inter‐Am. Ct. H.R. 30 August 2010, Fernández Ortega et al. v. Mexico, para. 129; Inter‐Am. Ct. H.R. 31 August
2010, Rosendo Cantú et al. v. Mexico, para. 119; Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile, paras. 135 and 162.
16 U.S. Supreme Court, Roberts v. United States Jaycees, 468 U.S. 609 (1984).
17 Constitutional Court of South Africa 9 October 1998, National Coalition for Gay and Lesbian Equality v.
Minister of Justice.
18 High Court of Fiji at Suva 26 August 2005, McCoskar v. State.
19 UN Human Rights Committee, 31 March 1994, Toonen v. Australia, comm. 488/1992.
20 UN Human Rights Committee, 31 October 1994, Coeriel and Aurik v. The Netherlands, comm. 453/1991. 21 Eur. Comm’n H.R. 18 May 1976, X v. Iceland, appl. 6825/74 (admissibility).
8 This view was reaffirmed by the ECourtHR in 1992 in Niemietz v. Germany.23 The ECourtHR refused to give an exhaustive definition of private life, but it considered that it would be too restrictive to limit it to an ‘inner circle’ and stated that, to a certain degree, it comprises of the right to establish and develop relationships with other human beings.24
It is remarkable that these three first cases on the right to relate were not at all about LGBT-topics. For example X. v. Iceland was about the prohibition of keeping dogs in the Reykjavik, Brüggemann
and Scheuten was about the prohibition of abortion and in Niemietz lawyer-client confidentiality was
at stake and the question whether business premises also fell under article 8 of the European
Convention on Human Rights was to be answered. Therefore the question arises whether the right to relate is also applicable to same-sex relationships. The answer to that may lie in several LGBT-related judgments of the ECourtHR. In the case of Dudgeon,25 the European Court accepted the sexual life of
homosexual couples as being part of their most intimate part of their private life. With having a right to a sexual life under the right to respect for privacy, one also needs the right to establish and develop sexual relationships. In E.B. v. France26 LGBT-people also got the right to adopt (i.e. establish family relationships), while in Schalk and Kopf v. Germany27 the ECourtHR accepted family life in
same-sex relationships.
After Schalk and Kopf, the ECourtHR recently decided another issue of same-sex unions in the Oliari-case.28 In this case applicants lived together in stable relationships, but had no possibilities to further
legalize their cohabitation or relationship. The highest Italian courts had ruled there was a legal void that was to be filled by the Italian legislator, nothing else could be done. Furthermore, majority of the population seemed in favour of legal partnership-regulation. On the merits the ECourtHR reiterated earlier judgments and concluded that the Italian Government had overstepped its margin of appreciation and failed to fulfil its positive obligations to ensure that the applicant have a specific legal framework available for providing the recognition and protection of their same-sex unions.29
With this judgment the ECourtHR explicitly reaffirms Schalk and Kopf that States have a positive obligation to create a legal framework that recognizes same-sex unions.30 The remarkable point in
this case, however, is that the ECourtHR does not limit Italy’s margin due to a wide consensus
23 Eur. Ct. H.R. 16 December 1992, Niemietz v. Germany, appl. 13710/88.
24 Ibid., here the European Court uses the ambiguous words ‘to a certain degree’, it no longer does so. Cf. Eur. Ct. H.R. 29 July 2002, Pretty v. United Kingdom, appl. 2346/02, para. 61, and most recently Eur. Ct. H.R. 12 June 2014, Fernández Martínez v. Spain, appl. 56030/07, para. 126.
25 Eur. Ct. H.R. 22 October 1981, Dudgeon v. United Kingdom, appl. 7525/76, para. 52. 26 Eur. Ct. H.R. 22 January 2008, E.B. v. France, appl. 43546/02.
27 Eur. Ct. H.R. 24 June 2010, Schalk & Kopf v. Austria, appl. 30141/04, para. 94. 28 Eur. Ct. H.R., 21 July 2015, Oliari and others v. Italy, appl.18766/11 and 36030/11. 29 Ibid., paras 185.
9 between member states pointing in to certain framework for recognition, but because the judiciary and the population both are ready and in need of a legal framework.31 Eventually, a bill was recently
passed in the Italian Senate recognising same-sex civil unions.32
1.1.2. UN Human Rights Committee’s indirect position
In his inaugural lecture, Waaldijk mentions Toonen v. Australia33 but questions whether less sexual or
less private aspects of homosexual orientation would also be protected by the right for respect for privacy.34 In Toonen the Human Rights Committee stated that “adult consensual sexual activity in private is covered by the concept of “privacy””.35 This quote indeed does not say much about the less
private or sexual aspects. However, in my opinion it is not necessarily unclear what the Human Rights Committee would think of a right to relate. In Coeriel and Aurik v. The Netherlands36 the Committee “considers that the notion of privacy refers to the sphere of a person’s life in which he or she can
freely express his or her identity, be it by entering into relationships with others or alone”.37 So,
paraphrased, the right to respect for privacy gives people the capacity to express their identity, alone or in relationship with others. Here the Committee indirectly recognizes that States have to respect relationships as part of a person’s private life. The Committee mainly recognizes the negative obligation of a State to respect the right to relate for individuals in order to express their identity. The Human Rights Committee has reaffirmed this point of view in the later Bulgakov v. Ukraine-case in 2008.38
Both Coeriel and Aurik, and Bulgakov were about arbitrary interferences of their privacy, due to the fact that the State either did not provide for name-changes or wrongly changed applicant’s name. Like in the first stages of the jurisprudence of the ECourtHR, the cases were not on specific LGBT-issues. Coeriel and Aurik was used by the author of the complaint in Joslin v. New Zealand.39
However, for the right to marry the Human Rights Committee rather has used a strict linguistic
31 Ibid., para. 179-181
32
www.theguardian.com/society/2016/feb/25/italy-passes-watered-down-bill-recognising-same-sex-civil-unions, last visited 2 March 2016.
33 UN Human Rights Committee, 31 March 1994, Toonen v. Australia, comm. 488/1992.
34 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012, p. 22
35 UN Human Rights Committee, 31 March 1994, Toonen v. Australia, comm. 488/1992, para. 8.2.
36 UN Human Rights Committee, 31 October 1994, Coeriel and Aurik v. The Netherlands, comm. 453/1991. 37 Ibid., para. 10.2.
38 UN Human Rights Committee, 29 October 2012, Dmitriy Vladimirovich Bulgakov v. Ukraine, comm. 1803/2008, para. 7.2.
10 approach on article 23, paragraph 2, of the ICCPR than considering it in the light of equal treatment or the right to respect of private life.40
1.1.3. Inter-American Court’s explicit recognition
Since the beginning of this decade the ECourtHR is not the only regional human rights court that recognizes the right to relate. As has been noted above, the Inter-American Court also found that the right to establish and develop relationships exists. Here again the first two cases41 of the
Inter-American Court were not LGBT-related. Both cases were about alleged rape by Mexican soldiers, a lack of due diligence in investigation and punishment and a failure to adequate reparations. Part of the complaint was violation of the right to privacy. The Inter-American Court considered that the concept of private life cannot be defined exhaustively, but includes sexual life and the right to establish and develop relationships.42 In both cases the Court found that the right to privacy was
violated, because the rape “violated essential aspects and values of her [i.e. applicant’s, RD] private
life, represented an intrusion in her sexual life, and annulled her right to decide freely with whom to have intimate relations, causing her to lose total control over these most personal and intimate decisions, and over her basic bodily functions”.43
In Atala Riffo and daughters v. Chile, the Inter-American Court however explicitly mentioned that the right to relate, includes “the right to establish and maintain relationships with people of the same
sex” and it “extend[s] to the public and professional spheres”.44.
Remarkably, the Inter-American Court bases its judgments almost solely on considerations of the ECourtHR. It does so by combining several of the ECourtHR’s judgments.45 However, in Atala Riffo the
Inter-American Court goes further than the ECourtHR. It explicitly recognizes the right to relate for LGBT-people and same-sex relationships. Where the ECourtHR, until Oliari, only implicitly recognized the right to relate for LGBT-people by the recognition of family life for same-sex couples in Schalk
and Kopf46 and the right to sexual life in Dudgeon.47
40 Ibid., paras. 8.1-8.3.
41 Inter‐Am. Ct. H.R. 30 August 2010, Fernández Ortega et al. v. Mexico; Inter‐Am. Ct. H.R. 31 August 2010, Rosendo Cantú et al. v. Mexico.
4242 Inter‐Am. Ct. H.R. 30 August 2010, Fernández Ortega et al. v. Mexico, para 129; cf. mutatis mutandis Inter‐ Am. Ct. H.R. 31 August 2010, Rosendo Cantú et al. v. Mexico, para. 119.
43 Ibid.
44 Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile, para. 135.
45 Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile, footnotes 158 and 159. 46 Eur. Ct. H.R. 24 June 2010, Schalk & Kopf v. Austria, appl. 30141/04. The right to relate is not explicitly mentioned by the court.
11
1.1.4. Supreme Court of the United States: right to marry
On 26 June 2015 the Supreme Court of the United States judged that same-sex couples have the Constitutional right to marry.48 Broadly the Supreme Court, in its majority opinion, first elaborates on
the history and importance of marriage as a social construct.49 After that it discusses the Due Process
Clause of the Fourteenth Amendment in which the right to marry also is included.50 The Supreme
Court reiterates that in the Lawrence-case51 it had “confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there.”52 The respondents’ argument that the petitioners sought a new and nonexistent right to same-sex marriage,53 is set aside by the Supreme Court by stating that:
“Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right
of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its
comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. […] That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.”54
The Supreme Court ends its discussion of the Due Process Clause with:
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as
opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”55 (Emphasis added)
After finding a right to marriage for LGBT-people under the Due Process Clause, the majority of the Supreme Court also finds an infringement to the right to marry on the basis of the Equal Protection Clause of the Fourteenth Amendment.56 In conclusion, with the reference to freedom of choices and
48 U.S. Supreme Court, Obergefell v. Hodges, 576 U.S. ___ (2015), Docket No. 14-556.
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, last retrieved 26 February 2016. 49 Ibid., pp. 6-10.
50 Ibid., pp. 10-19.
51 U.S. Supreme Court, Lawrence v. Texas, 539 U.S. 558 (2003).
52 U.S. Supreme Court, Obergefell v. Hodges, 576 U.S. ___ (2015), Docket No. 14-556, p. 14 53 Ibid., p. 18.
54 Ibid. 55 Ibid., p. 19. 56 Ibid., pp. 19-23.
12 personhood can be seen as a translation of the right to establish and develop relationships by the Supreme Court. So, the right to marry in the United States is partly based on the right to relate.
1.1.5. Definition.
On the basis of this international jurisprudence the more extensive definition of the right to relate would be:
The right of a person to, according to his or her identity,57 establish, develop58 and maintain59 relationships with other human beings and the outside world, in private,60 public and
professional spheres.61
Instead of a right to relate where a State has the duty to fulfil this right for the people in his territory, this right should more be seen as a freedom to relate. A freedom would also fit better with the personal choices people make regarding their relationships. This way people can freely choose to establish, develop and maintain relationships according to their perceived identities, without interference of the States. Although a State’s main obligation will be abstention from interference in the freedom to relate, positive obligations of a State will remain to exist for the effectiveness of the freedom.
The phrase ‘according to his or her identity’ is not only important for LGBT-people but can also be highly relevant for women’s rights. Forced marriages restrict the right to relate for women in the sense that they cannot freely establish, develop and maintain their relationships. When the right to relate would be accepted, it also means that States for example have to take action against forced marriages.
With this freedom the prohibition of interference by States is not absolute. I would propose a standard limitation clause. A limitation of the right to relate than has to be prescribed by law, has to pursue a legitimate aim and has to be necessary in a democratic society. The legitimate aims could be public safety, the protection of public order or health, or for the protection of the rights and freedoms of others. This last aim will be the main reason to limit the right to, as will be shown below. The range of application of the right to relate is wide, from private life to public life and professional life. It clearly deals with a wide variety of relations. Because the context of this thesis are
57 UN Human Rights Committee, 31 October 1994, Coeriel and Aurik v. The Netherlands, comm. 453/1991. 58 Eur. Ct. H.R. 16 December 1992, Niemietz v. Germany, appl. 13710/88, para. 29.
59 Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile. 60 Eur. Ct. H.R. 29 July 2002, Pretty v. United Kingdom, appl. 2346/02. 61 Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile.
13 relationships, only same-sex love and sexual relationships in the private and public spheres will be taken into account. Therefore the professional sphere will be unspoken of in this thesis.
1.2. Normative content of the right to relate
Now a more extensive definition on the right to relate is given, an analysis of this right can be made. In the analysis will be elaborated on the object, the obligations, the right-holders and the addressees of the right to relate.
1.2.1. The object
After defining the right to relate it is possible to determine the object of the right. To what is the right a right or to what is one entitled to?62 The right to relate is generally worded and the case-law
speaks of relationships in general terms, but this thesis will focus on same-sex love and sexual relationships as set forth in the introduction.
Two aspects of the right to relate
The right to relate can be dissected in two aspects, the right to establish relationships and the right to develop or maintain them.63 According to Waaldijk the right to establish relationships implies two
sub-rights, the right to come out and the right to come together.64 Coming out, means to openly
declare one’s sexual orientation. The right to come out, thus means that anyone should be able to openly declare and show one’s sexual orientation. The right to come together then means the right to meet with other people who share the same sexual orientation. The right to come out and come together are both part of the social identity. Without either of these sub-rights it is impossible for LGBT-people, and actually for all people, to establish a relationship.
Extra support for these rights can be found in the Pretty-case, where the right to private life also embraces aspects of one’s social identity.65 Two other cases in which the right to come out and the
right to come together can be found, are the opinion of the Human Rights Committee in Fedotova v.
Russia66 and the judgment in Alekseyev v. Russia by the ECourtHR.67 From the first case can be
concluded that the right to freedom of expression includes expressing one’s sexual identity and seeking understanding for it.68 And in the latter the ECourtHR states that ‘[t]here is no ambiguity about other States’ recognition of the right of individuals to openly identify as gay, lesbian or any
62 Ibid.
63 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012, p. 29.
64 Ibid.
65 Eur. Ct. H.R. 29 July 2002, Pretty v. United Kingdom, appl. 2346/02, para. 61.
66 UN Human Rights Committee, 31 October 2012, Fedotova v. Russia, comm. 1932/2010. 67 Eur. Ct. H.R., 21 October 2010, Alekseyev v. Russia, appl. 4916/07 and 14599/09.
14
other sexual minority, and to promote their rights and freedoms, in particular by exercising their freedom of peaceful assembly’.69 These cases will be further elaborated on in Chapter 3 below.
For the right to develop or maintain relationships to be operational, five requirements are identified for LGBT-people and -relationships to be fully accepted and fully enjoy their right to relate: respect for their private life, protection (through privacy and anti-discrimination legislation), legal recognition of same-sex partnerships, legal formalization of same-sex partnerships and recognition of foreign formalization (e.g. for foreign adoption by same-sex couples).70 These five aspects all in their own
contribute to full operationalization of the right to develop and maintain relationships. For example the respect and protection of one’s private life, contributes to a free and unconstrained choice to relate to someone. Anti-discrimination laws protect people with relations different from a cultural standard. This way people in such relationships will have no disadvantages from being in such a relationship. Further, more focused at same-sex partnerships, with legal recognition of relationships someone can start a family and is able to arrange formal affairs for birth, life and death of the partner in the relationship. In other words the five requirements are needed to be able to fully develop and maintain relationships in a legal way.
The right to relate placed in the human rights scheme
Waaldijk concludes in his inaugural lecture that family life and marriage could become sub-categories of the right of private life,71 even though family life and the right to marriage are separate rights.
When the right to relate is accepted, a right to family life and a right to marry for LGBT-people would be logical consequences. With the aspect of the right to come out, and thus express oneself, Waaldijk also links the right to freedom of expression to the right to private life and the right to relate. In my opinion the linkage between the several rights shows the indivisibility, interdependence and interrelatedness of the human rights.72
The right to relate cannot only be related to private life, the right to marry or the right to freedom of expression. It can be related to different other rights. It can also strengthen the right to the integrity of the person and the right to be free from torture and ill-treatment, for example when it comes to female genital mutilation. Because female genital mutilation also constrains women in their sexual identity. Just so, the right to relate can be an extra argument adjacent to the right to life when it comes to the honour killing of women that are raped or establish relationships which are not
69 Eur. Ct. H.R., 21 October 2010, Alekseyev v. Russia, appl. 4916/07 and 14599/09, para. 84.
70 C. Waaldijk, The Right to Relate On the Importance of “Orientation” in comparative Sexual Orientation Law (inaugural lecture Leiden), 2012, pp. 33-39.
71 Ibid., p. 27.
72 Vienna Declaration, Adopted by the World Conference on Human Rights, Vienna, 1993, p. 3, para. 5.
15 accepted by their family. Furthermore the right to relate can be used as a strengthening argument to family reunification, next to the right to family life. This shows that the right to relate could be an undiscovered piece that exactly fits in the puzzle of the human rights scheme. Because of these links with other human rights, acceptance of the right to relate could also mean further acceptance of other rights for LGBT-people.
1.2.2. Obligations.
The way obligations should be secured is mostly tripartite.73 The first obligation is not to take any
measures that result in violations. This negative obligations is called the obligation to respect74 and is
already mentioned above in the section on the UN Human Rights Committee. For example, in the light of the right to relate this would mean that States have to allow same-sex relationships. Especially in the context of a freedom, which the right to relate can be identified as, the duty to respect is important to ensure the freedom of the rightsholders. Secondly, States must ensure that third parties to not let individuals within the State’s jurisdiction suffer from human rights violations.75
Anti-discrimination laws can be part of this obligation. The last obligation is the obligation to fulfil. This means proactively engaging in activities that have as a consequence the greater enjoyment of rights.76 So, for example States have to adopt appropriate laws to implement provisions that entail a
remedy. Or in the case of the right to relate the obligation of a State can be that it adapts its legal framework for same sex unions, as seen in the Oliari-case.
In the light of these types of obligations, Waaldijk has engaged in legal theories to increase and explain the legal acceptance of the LGBT-community for a long time. In 1994 he came with eleven fields for recognition with which he explained the development of the legal acceptance of
homosexuals.77 With the eleven fields for recognition come several human rights that can be linked.
For example with the fields for acceptance of LGBT-organizations and information about LGBT-issues come the right to association and assembly, the right to information as includes in de right to
freedom of expression and the right to education. As seen above, with the right to come out also the right to freedom of expression is linked to the right to relate. This way, the implications of the right to relate are in line with these fields of recognition which can be seen as part of the positive
73 F. Mégret, Nature of obligations, in: D. Moeckli, S. Shah & S. Sivakumaran (eds.), International human rights law, New York: Oxford University Press 2010, pp. 124-149, p. 130.
74 Ibid.
75 Ibid., p. 130-131. 76 Ibid., p. 131-132.
77 C. Waaldijk, Standard Sequences in the Legal Recognition of Homosexuality – Europe’s Past, Present and Future, 4 Australasian Gay & Lesbian L.J., 50-73, 1994. The fields consisted of (I/II) sexual contact, (III) homosexual safety, (IV) LGBT Organizations, (V) LGBT Leisure, (VI) Information about LGBT-issues,
(VII) Non-discrimination, (VIII) Services for LGBT’s, (IX) Employment of LGBT’s, (X) Same-sex partnership and (XI) LGBT-parenthood.
16 obligations by the State. The obligations of right to relate is the legal starting point to the
developments in the acceptation of LGBT-people, the foundation from which the developments regarding the legal acceptance of LGBT-people can be explained.
Just as Donnelly has formulated,78 the direction of the development of the eleven fields, and in my
opinion this also lies in the texts of Waaldijk, is that from assertive exercise of the right to relate to an
objective enjoyment of it. So, from a situation where the right is exercised which activates the
obligations of the duty-bearer, who either respects the right or violates it, to a situation where the right is naturally enjoyed without the need for explicit enforcement.
1.2.3. Right-holders
Now the object of the right is established, the right-holders have to be identified. The first conclusion that has to be drawn is that, due to its definition, the right to relate is applicable to the universal sexual legal subject as advocated by Grigolo79 and thus cannot be seen as a minority right for
LGBT-people. In the idea of Grigolo heterosexuality no longer is the central norm and homosexuality not its opposite pole. She proposes deminorization and universalization within individual sexual rights.80 In
that legal space she proposes two fundamental rights, the right to choose sexual identity and activity, and the right to establish relationships and family in accordance with the chosen sexual identity and activity.81
With the right to relate basically being applicable to all humans, one reasonably could question the desirability of the application of this right to sexual or love relationships between adults and children. With the right being applicable to sexual and love relationships, one can legitimately ask if little children should have such a right? Or should the right to relate mean that there is a right for adults to start sexual and love relationships with children?
This is the situation kept in mind when proposing a limitation clause. A limitation to prevent sexual or love relationships would have to be prescribed by law, which in most countries is done. Secondly it has to serve a legitimate aim, this aim would be the protection of rights and freedoms of others. According to the Convention for the Rights of the Child, a child has the right to protection from sexual abuse.82 Lastly, every limitation has to be necessary in a democratic society. One remark can
be made. It would be wrong if the limitation of the right would also work against adolescents from a
78 J. Donnelly, Universal human rights in theory and practice, New York: Cornell University Press 2012, p. 9. 79 M. Grigolo, Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject, 14 Eur. J. Int’l. L 1023-1044, 2003, p. 1026.
80 Ibid., p. 1028. 81 Ibid.
17 certain age. In that case it would interfere with their sub-right to come out, by not allowing them to explore their sexuality. One could ask whether that would be proportional.
Adult/children relationships are not the only types of relationships that could be limited. For sexual and love relationships between siblings the ECourtHR, for example, gives States a wide margin of appreciation.83 The Stübing-case was about a relationship between a brother and a sister who had
four children together. The brother was convicted twice for incest by the German courts. He complained at the ECourtHR about a violation of article 8 of the European Convention on Human Rights. The ECourtHR found that the limitation was prescribed by law, had the legitimate aim to protect the morals and rights of others. Assessing the necessity in a democratic society, the ECourtHR found that while the margin of appreciation for States was normally restricted, in this case it was not due to the fact that there is no consensus between the Member States.84 Germany thus had a wider
margin appreciation and the aims of the criminalization of incest (protection of the family, self-determination and public health) were not unreasonable.85 Finally, the German courts had stayed
within their margin of appreciation and therefore no violation of article 8 of the European Convention existed.86
Although the right to relate can be limited, this does not narrow the range of right-holders. In the two situations described, a right to relate exists. There are, however, limitations in the right to relate for these groups.
1.2.4. The addressee
The addressee of the right to relate, also called the duty-bearer, mainly is the State with all its organs and agents. The duties of the State regarding heterosexual relationships do not manifestly change. Regarding same-sex couples and the LGBT-community there is a vaster obligation. Its duty is to allow and decriminalize all love and sexual relationships – including same-sex relationships – that do not endanger the public safety, public order or health, or the rights and freedoms of others. This obligation is mainly in a negative way, not interfering in the rights of individuals. With it come positive obligations to develop the acceptance of same-sex relationships and LGBT-people by
education and to protect them against assaults. Furthermore a State has to enact anti-discrimination laws for LGBT-people, has to introduce legal partnership and ultimately legally recognize same-sex parenthood.
83 Eur. Ct. H.R. 12 April 2012, Stübing v. Germany, appl. 43547/08. 84 Ibid., paras. 59-61.
85 Ibid., para. 65. 86 Ibid., para. 66.
18 In case of children or adolescents, there might be another type of dutybearers. This group consists of the parents, legal guardians or other individuals that are legally responsible for minors. As recognised in the Convention on the Rights of the Child, this group has a special responsibility in the care and upbringing of minors.87 The duties for parents would be to inform and educate children or
adolescents about sexual identity and relationships. Especially for adolescents this would be a crucial part of the discovery of their own identity, as spoken about in de the section above. Furthermore, the duty to respect and accept their children’s identity and relationships, as long as they do not harm the child, lies upon the parents.
1.3. Concluding remarks of the first chapter
In this first chapter the origin of the right to relate is found in Europe, but it is now firmly supported by the Inter-American Court. In the United States it even is a basis to the right for LGBT-couples to marry. Defining the right, it is the right of a person to, according to his or her identity, establish, develop and maintain relationships with other human beings and the outside world in private, public and professional spheres. Its objects are love and sexual relationships for all human beings.
Limitations are possible, specifically in cases where dependence of the need of protection plays a role, like with minors. That however does not mean that only adults can enjoy it. Furthermore, the right to relate is a legal basis for the development of legal recognition and legal and social acceptance of LGBT-people, where the main duties of States are to decriminalize sexual intercourse between people of the same sex, to protect LGBT-people against assaults, to introduce anti-discrimination legislation in a wide range of social fields and to adapt family law to create the possibility for LGBT-people to have a family life.
19
2. Customary international law as source of the right to relate?
Treaty law does not give a direct basis for the right to relate, but via interpretation it can be deduced from several treaties. Furthermore, the right to relate is not found through interpretation in all human rights treaties which makes the right only accessible to a limited group of people. In the introduction I argued that the only other possible source for the legal right to relate is international custom.88 This chapter will examine whether the right to relate can potentially be a customary norm.
2.1. Criteria for customary international law
For an international norm to become customary, two criteria need to be met.89 First there needs to
be practice that leads to the formation of a custom. Secondly, the practice needs to be supported by
opinio juris sive necessitatis, the belief by a State that it is legally obliged to act conform the custom.
2.1.1 Practice
State practice is a concept that consists of “any act or statement by a state from which views about
customary law may be inferred”.90 An act of a State can be conducted by all of its organs and can
consist of administrative acts, legislation, decisions of courts and activities on the international stage.91 For acts and statements of States to become practice, several criteria have been set in
international jurisprudence. First of all, there needs to be a constant and uniform practice.92 This
uniformity is not absolutely rigorous,93 but State practice needs to be extensive and virtually
uniform.94 Thus universality of behaviour and unanimity are not required and practice only needs to
be general.95
Lastly there is extra attention for practice by States ‘whose interests are specially affected’.96 For
international human rights law this last criterion is not relevant, for no specially affected States can
88 Art. 38 (1)(b) ICJ Statute.
89 ICJ, Case concerning the continental shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports, 1985, pp. 13,29; ILR, p. 239.
90 M. Akehurst, Custom as a Source, British Yearbook of International Law, 1975, 47 (1), pp. 1-53. 91 M.N. Shaw, International Law, New York: Cambridge University Press 2008, p. 80. See also ICJ, Case concerning the arrest warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports, 2002, pp. 3. 23-4; 128 ILR, pp. 60, 78-80.
92 ICJ, Asylum case, ICJ Reports, 1950, p. 266; 17 ILR, p. 280.
93 ICJ, Nicaragua case, ICJ Reports, 1986, p. 14, para. 186; 76 ILR, p. 349.
94 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands), ICJ Reports, 1969, p. 3, para. 74; 41 ILR, p. 29.
95 J.J. Paust, The Complex Nature, Sources and Evidences of Customary Human Rights, 25 Ga. J. Int’l & Comp. L., pp. 147-164, 1995-1996, p. 151.
96 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands), ICJ Reports, 1969, para. 74.
20 be pointed out. After all, human rights are universal and there are no States that have more interests in human rights than others.
2.1.2. Opinio juris
State practice by itself is nog enough. A general recognition that a rule of law or legal obligation is involved, is also needed.97 Full unanimity is not required, as long as patterns of opinio juris are
generally shared98 and States are not ‘profoundly divided on the matter’.99 A State may thus disagree
whether a human right is customary norm, but it would still be bound if the norm is supported by patterns of generally shared legal expectation.100 On the other hand, it does matter to what extent
there is contrary practice.101 This will be discussed with the persistent objector doctrine in the next
chapter. Furthermore it is not only of importance of how widespread the opinio juris is. The intensity with which a particular norm is held, is just as important.102
The question rises where opinio juris can be found. First of all it must be found in or with the State practice.103 So in acts accompanied with statements or declarations, or in statements and
declarations that can be seen as acts of a State. An example of the latter is a statement or
declaration made in meetings of international organizations.104 A second possible way to find opinio juris is the recurrence of a norm of one human rights instrument in other human rights
instruments.105 A third way to find opinio juris is through resolutions of the General Assembly of the
United Nations. These resolutions need to be used with due caution,106 but can in certain
circumstances provide evidence of opinio juris.107 The reason for the due caution is the fact that
States may vote in favour or against a resolution for other than legal reasons. If that is the case, no
opinio juris can be derived from these resolutions. It therefore is necessary to look at its content and
97 Ibid.
98 J.J. Paust, The Complex Nature, Sources and Evidences of Customary Human Rights, 25 Ga. J. Int’l & Comp. L., pp. 147-164, 1995-1996, p. 151.
99 ICJ, Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons (GA), ICJ Reports, 1996, pp. 226, para 67; 110 ILR, p. 163
100 Ibid.
101 T. Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford, 1989, p. 94.
102 J.J. Paust, The Complex Nature, Sources and Evidences of Customary Human Rights, 25 Ga. J. Int’l & Comp. L., pp. 147-164, 1995-1996,.
103 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands), ICJ Reports, 1969, para 77; See also ICJ, Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons (GA), ICJ Reports, 1996, pp. 226, para. 73.
104 ICJ, Nicaragua case, ICJ Reports, 1986, para. 190.
105 T. Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford, 1989, p. 94; C. Chinkin, Sources, in: Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran (eds.), International human rights law, New York: Oxford University Press 2010, pp. 110-113.
106 ICJ, Nicaragua case, ICJ Reports, 1986, para. 188.
107 ICJ, Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons (GA), ICJ Reports, 1996, pp. 226, para. 70.
21 conditions of adoption and to see whether an opinio juris exists to its normative character.108
Furthermore a series of resolutions may show the gradual evolution of the opinio juris.109
2.1.3. Emergence of customary international law
For this thesis not only the two criteria for customary international law are of importance. For the question whether the right to relate is, or could become, a customary international norm, the process of emergence is of equal importance. McClane explores the emergence of customary international norms.110 In doing this, he re-introduces the term ‘usage’ to fill in the conceptual void
between mere State practice and a customary international norm.111 Usage is the “time period prior to the actual formation of the norm”, where “a status level of a State practice […] is legally more significant than a mere act of a State, but which does not include these practices which are customary international law norms”.112
Crucial for the emergence of customary international norms in McClane’s idea is the concept of acquiescence. Practice of a State becomes a usage, when one or more States that are affected acquiesce in it. With that the usage becomes binding on the acquiescing States. The more States that acquiesce, the stronger the usage becomes. At some turning point, the usage becomes a customary international norm and the acquiescence changes into opinio juris.113 Both usage and regional
custom are about the emergence and development of customary international law on a step-by-step basis, however McClane does not put them on the same stand because he wants to articulate a lucid notion of the traditional usage and he states that the ICJ has not elaborated enough on the concept of regional custom to allow speculation.114 The concept of usage will therefore be used in this thesis
to review possible existence of international customary norms, rather than the concept of regional custom.
The process described by McClane seems time-consuming. That way, one might argue that the idea cannot explain the instantaneous arising of customary international norms, as presented by
others.115 However, time is not the crucial element of McClane’s description. The crucial element is
108 Ibid.; see also International Law Association, Committee on Formation of Customary (General) International Law, Final Report of the Committee, Statement of Principles Applicable to the Formation of General Customary International Law (2000), rule 32, p.61.
109 Ibid.
110 J.B. McClane, How late in the emergence of a norm of customary international law may a persistent objector object?, 13 ILSA J. Int’l L., 1989, pp. 1-26.
111 Ibid., p. 11. 112 Ibid., p. 7. 113 Ibid., p. 18. 114 Ibid., p. 12.
115 A. D’Amato, International Soft Law, Hard Law, and Coherence, Northwestern University School of Law Public Law and Legal Theory Series, No. 08-01, 2008, p. 29.
22 the critical mass of States acquiescing that is required for usage to become customary international law. And this critical mass can be reached quickly in the modern world through international fora like the United Nations. This is of relevance for human rights norms, because this makes it more difficult for States to object to the emergence of change of international customary human rights norms. In the third chapter this is one of the points that will be used to review States that could claim
persistent objector status.
2.2. Review of State practice
According to the 2015 map of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA),116 same-sex unions are recognized in 38 States. In 20 of those States same-sex marriage is
possible, while 12 States have an equal substitute. The map also shows a big growth of same-sex marriage in the United States, compared to 2013.117 On the other side, the map shows that in 78
States homosexuality is persecuted and punishable by imprisonment or the death penalty.118
The ILGA-map does not look very promising for State practice of the right to relate. There is no majority of States that recognizes same-sex relationships and a big amount of States even criminalize homosexuality. However the debate on this subject partially tends to expand the number of States accepting same-sex relationships. In the next subsections the State practice in the United Nations (UN), the Council of Europe (CoE), the European Union (EU) and the Organization of American States (OAS) will be discussed. The reason for this choice is that on the ILGA-map Europe and the Americas come out positively, while other regions are divided or even strongly oppose LGBT-rights. The possibility of finding a customary norm holding the right to relate, is therefore bigger in these two regions than the other regions.119
2.2.1. United Nations
The Member States in the UN Commission on Human Rights first linked human rights with sexual orientation in 2000.120 In that year the Commission’s resolution on extrajudicial executions included a
text on sexual orientation. In 2005 gender identity was added to the resolution.121 In the same way
116 Retrievable through http://old.ilga.org/Statehomophobia/ILGA_WorldMap_2015_ENG.pdf, last visited 25 February 2016.
117http://old.ilga.org/statehomophobia/ILGA_kaart_2013_A4.pdf, last visited 25 February 2016. 118 Death penalty in Mauritania, Sudan, Saudi-Arabia, Yemen, Iran and parts of Somalia and Nigeria. 119 Although the human rights experts of African Commission on Human and Peoples’ Rights did adopt a resolution on ‘Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity in 2014’; African Commission on Human and Peoples’ Rights, Resolution 275, adopted at the 55th ordinary session on 28 April 2014 to 22 May 2014 at Luanda, Angola, http://www.achpr.org/sessions/55th/resolutions/275/ (last retrieved 9 March 2015). 120 M. O’Flaherty and J. Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law Review, 8:2, 2008, pp. 207-248, p. 231. 121 Ibid.
23 the Commission’s annual resolutions dealing with the death penalty urged States to ensure that the death penalty ‘is not imposed for non-violent acts such as […] sexual relations between consenting
adults’.122
In 2003 Brazil presented a resolution at the UN Commission on Human Rights condemning human rights violations based on sexual orientation. This resolution never reached the agenda.123 In 2005
New-Zealand did however deliver a joined statement on this issue supported by 32 States.124 A year
later Norway did the same in the new Human Rights Council with the support of 54 States from four of the five UN regions.125 There was opposition from Pakistan, on behalf of the Organization of the
Islamic Conference, and Iran made a similar statement.126 In 2008 a statement was supported in het
UN General Assembly by 67 States, with unprecedented support from five continent, confirming that sexual orientation and gender identity are also included in international human rights protection.127
In reaction 60 States supported an alternative text again made by the Organization of the Islamic Conference.128 After this statement and a resolution of the Human Rights Council129 the UN High
Commissioner for Human Rights presented a report on ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’.130 The Human
Rights Council reacted on this report with a resolution ‘requesting the High Commissioner to update
the report with a view to sharing good practices and ways to overcome violence and
discrimination’.131 The adoption of the report and the resolution are a big step forward for
LGBT-rights. Unlike for instance in the EU, sexual orientation or gender identity are not in the original UN discrimination clauses as prohibited grounds.132 Ultimately 2014 was the year the UN launched the
122 UN Commission on Human Rights, Resolution, 20 April 2005, E/CN.4/RES/2005/59. 123 O’Flaherty & Fisher (2008), p. 229.
124 Ibid., p. 230; unfortunately is the link mentioned in the note of O’Flaherty and Fisher no longer retrievable.
Amnesty International however mentions the joint statement:
http://www.amnesty.org/en/library/asset/IOR41/030/2005/en/897c7116-d4f6-11dd-8a23-d58a49c0d652/ior410302005en.html [last visited on 23 December 2014]; H. Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, 45.
125 M. O’Flaherty and J. Fisher, Sexual Orientation, Gender Identity and International Human Rights Law:
Contextualising the Yogyakarta Principles, Human Rights Law Review, 8:2, 2008, pp. 207-248, p. 230; H. Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, under 46.
126 Ibid.
127 H. Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford
University Press, 2010, under 47-48. 128 Ibid., under 49.
129 A/HRC/RES/17/19, 14 July 2011. 130 A/HRC/19/41, 17 November 2011. 131 A/HRC/RES/27/32, 2 October 2014.
132 Compare art. 21 Charter of Fundamental Rights of the EU (EU Charter), art. 26 International Covenant on Civil and Political Rights and art. 2 (2) International Covenant on Economic, Social and Cultural Rights.
24 ‘Free and Equal’-campaign. This is an UN global public education campaign for LGBT equality,133 also
implying a freedom to choose with whom one want to start a relationship with. However, noting the continually small majority that supports the resolution no wide, general and uniform State practice can be assumed yet. It nevertheless is good to give special attention to three regions.
2.2.2. Regional practice
Three regions have positive practice regarding LGBT-rights. These regions, which also can be seen on the ILGA map, are Europe and both America’s. On the European continent two organizations are of importance for human rights, the CoE and the EU. Strictly speaking customary international law should be proved with State practice. Since not all national practice can be looked into, this section will review the practice of these regions from a regional perspective. Although in some of these bodies states are represented, that is not the case in all of them.
Practice in the European Union
The EU requires candidate States to repeal all laws discriminating on sexual orientation before they can become a Member States and EU legislation regularly includes sexual orientation in non-discrimination provisions.134 The Treaty on European Union (TEU), the Treaty on the Functioning of
the European Union (TFEU) and the EU Charter prohibit discrimination on the ground of sexual orientation and empower the EU Council to take appropriate action to combat discrimination (inter alia) sexual orientation since the entry into force of the Lisbon Treaty.135 The Stockholm Programme
adopted by the EU Council in 2009 also speaks of measures to tackle homophobia, among discrimination, racism, anti-semitism and xenophobia.136 Furthermore the European Parliament
adopted several resolutions on equal rights for LGBT-people and against homophobia and discrimination,137 the latest of which is adopted on 4 February 2014.138 In this resolution the
European Parliament explicitly asks measures for the recognition of same-sex marriages from other Member States and all forms of family have to be recognised in the implementation of Directives on
133 Retrieved from https://www.unfe.org/en/about, last visited 29 December 2014.
134 Art. 6(1) TEU in conjunction with art. 21 (1) EU Charter; Art. 6 (3) TEU refers to fundamental rights as guaranteed by the ECHR; art. 10 TFEU charges the EU to combat discrimination on the grounds of (inter alia) sexual orientation; art. 19 TFEU empowers the European Council to take appropriate action to combat discrimination of (inter alia) sexual orientation; Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, under 29.
135 Ibid., under 35-37.
136 The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, 4 May 2010, OJ C115/1, para. 2.3.
137 . Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, under 30.
138 European Parliament resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity, retrieved from
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-0062+0+DOC+XML+V0//EN (last visited on 30 December 2014).
25 the right of citizens to freely reside within the territory of Member States and on the right to family reunification.139 When the European Court of Justice (ECJ) rejected claims of same-sex couples, the
EU legislator reacted quickly by enacting a Directive and amending the staff regulations.140 This
shows that the EU legislator found it had a legal obligation to make the staff regulations applicable to same-sex couples. Later in the Maruko,141 Kücükdeveci142 and Römer143 cases the ECJ found that the principle of non-discrimination is a general principle of EU law.144 According to Graupner there also
might be an obligation to perform same-sex marriages if same-sex marriages are allowed in each of the fiancées’ home Member State.145 Graupner bases his opinion on the ECJ cases Avello v Belgian State146 and Grunkin and Paul.147 These judgments of the ECJ do not constitute State practice, but might be of importance for the opinio juris.
Practice in the Council of Europe
While the EU exists of 28 Member States, the CoE has a wider reach with 47 Member States. A similarity with the EU is that new Member States have to meet the ECourtHR’s judgments after acceding. Again all Member States have to repeal all discriminating laws when becoming a member, so also those on basis of sexual orientation.148 Like the EU the Parliamentary Assembly of the CoE has
a long list of resolutions/recommendations on the topic of LGBT-rights, which even dates back to 1981.149 A big part of the practice of the CoE exists of the jurisprudence of the ECourtHR, an analysis
of which is given in the first chapter. Furthermore the Committee of Ministers calls the 47 Member States to secure LGBT-rights in its recommendation to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity.150
Practice in the Organization of American States
The regional human rights instrument for the Americas is the American Convention on Human Rights (ACHR) from the OAS. Since the adoption of the 2008 Declaration on Sexual Orientation and Gender Identity the General Assembly of the OAS has yearly adopted a resolution on the issue of human
139 Ibid., art. H, paras. (i) and (iv).
140 Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford
University Press, 2010, under 31 and 32.
141 ECJ, Maruko v Versorgungsanstalt der deutschen Bühnen, 1 April 2008, C-267/06. 142 ECJ, Seda Kücükdeveci v Swedex GmbH & Co. KG, 19 January 2010, C-555/07. 143 ECJ, Jürgen Römer v Freie Hansestadt Hamburg, 10 May 2011, C-147/08.
144 Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, under 33.
145 Ibid., under 34.
146 ECJ, Avello v Belgian State, 2 October 2003, C-148/02. 147 ECJ, Grunkin and Paul, 14 October 2008, C-353/06.
148 Graupner, Gay Rights, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, under 8.
149 Ibid., under 8.
26 rights, sexual orientation, and gender identity151. In its first resolution in 2008 the General Assembly
of the OAS mostly spoke out its ‘concern about acts of violence and related human rights violation
committed to individuals because of their sexual orientation and gender identity’.152 In the following
years the resolutions developed from urging states to ensure adequate protection to human rights defenders and investigation and prosecution of violations153 to requesting the Inter American
Commission on Human Rights (IACHR) to do study on legal implications and conceptual and terminological developments154, and a study on legislation and provisions of Member States
restricting human rights by reason of sexual orientation or gender identity.155 Furthermore in its
annual resolutions from 2012 the General Assembly started to urge the Member States to sign, ratify, or accede the Inter American’s instruments on protection of human rights and the IACHR appointed a Rapporteur on LGBTI persons in 2011.156 In 2010 the Inter-American Court explicitly
recognized the right to establish and maintain relationships for LGBT-people and same-sex
relationships.157 Although these developments in the OAS are promising still eleven of the thirty-five
Member States have penalties for homosexual activities in their criminal laws.158 Another noteworthy
development in the annual resolutions of the OAS General Assembly are the declarations of several Member States that they do not join the consensus on the latest resolutions mostly because of technicalities, that consist of legal proceeding or lack of national debate in the Member States, or difficulties with terminology.159 The OAS General Assembly resolutions in 2013 and 2014 tend to be
more concrete where they urge Member States to consider signing, ratifying, or acceding to the Inter-American human rights instrument.160 Now the OAS General Assembly resolutions seem to
develop to more concrete and executory rather than declaratory and investigating, it appears as if some Member States want back out.
151 AG/RES. 2435 (XXXVIII-O/08), 3 June 2008; AG/RES. 2504 (XXXIX-O/09), 4 June 2009; AG/RES. 2600 (XL-O/10), 8 June 2010; AG/RES. 2653 (XLI-O/11), 7 June 2011; AG/RES. 2721 (XLII-O/12), 4 June 2012; AG/RES. 2807 (XLIII-O/13),6 June 2013 and AG/RES. 2863 (XLIV-O/14), 5 June 2014.
152 AG/RES. 2435 (XXXVIII-O/08), para. 1. 153 AG/RES. 2504 (XXXIX-O/09), paras. 2- 3. 154 AG/RES. 2653 (XLI-O/11), para. 6.
155 AG/RES. 2721 (XLII-O/12), para. 6; AG/RES. 2807 (XLIII-O/13), para. 8; AG/RES. 2863 (XLIV-O/14), para. 8. 156www.oas.org/en/iachr/lgtbi/mandate/responsibility.asp, last visited on 11 January 2015.
157 Inter‐Am. Ct. H.R. 30 August 2010, Fernández Ortega et al. v. Mexico, para. 129; Inter‐Am. Ct. H.R. 31 August 2010, Rosendo Cantú et al. v. Mexico, para. 119; Inter‐Am. Ct. H.R. 24 February 2012, Atala Riffo and daughters v. Chile, paras. 135 and 162.
158 ILGA-map, Retrievable through http://old.ilga.org/Statehomophobia/ILGA_Map_2014_ENG.pdf, last visited 23 December 2014.
159 Cf. declarations in the footnotes in AG/RES. 2807 (XLIII-O/13) and AG/RES. 2863 (XLIV-O/14).
160 Par. 9, AG/RES. 2807 (XLIII-O/2013. In AG/RES. 2863 (XLIV-O/14) the Inter-American Convention against All Forms of Discrimination and Intolerance is mentioned explicitly in par. 9.
