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Is International Law Gay-Friendly?

Matteo Winkler 25 luglio 2013

T he recent rulings of the U.S. Supreme Court on same-sex marriage (both dated 26 June 2013: U.S. v. Windsor, 2013 U.S. LEXIS 4921 and Hollingsworth v. Perry, 2013 U.S. LEXIS 4919) triggered the question of whether States should recognize the right to marry a person of the same sex. In f act, not a week goes by without signif icant improvements in the recognition of rights of same-sex couples at various degrees. For instance, a f ew days ago Queen Elizabeth signed into law a bill on same-sex marriage, whereas Uruguay and France have enacted similar laws respectively in April and May. All continents are involved in such a process, and yet not all countries seem to look at the matter in the same way. On 11 July 2013, Advocate General Eleanor Sharpston presented its opinion on a request of a preliminary ruling to the Court of Justice of the European Union concerning three immigrants f rom Sierra Leone, Uganda and Senegal three nations where homosexual acts between consenting adults amount to grave crimes and are subject to heavy punishment. T he Ugandan legislature is nowadays discussing a socalled Kill-the-Gay Bill, which would punish aggravated homosexuality with the death penalty and the of f ense of homosexuality with lif e imprisonment. At the end of June, Russia passed a law punishing any propaganda on non-traditional sexual relations and President Putin has been reported to have ordered the police to arrest openly gay tourists. Last but not least, a f ew days ago international news ref erred that the gay activist Eric Lembembe was f ound beaten to death in his house in Yound, Camerun. Hence, comparing the U.K. or certain sister states within the U.S. with some Af rican counterparts reveals that the world is not leading to the same direction, and this is an unquestionable f act. But what about international law? No doubt international law expressly recognizes the right to privacy, the right to marry and the right not to be subject to discrimination, all rights indeed provided by norms which are common to the Universal Declaration of Human Rights of 1948, the European Convention on Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966, and the American Convention on Human Rights of 1969. However, different interpretations seem to exist regarding the extent to which each of these rights concretely applies to gay people or same-sex couples. More specif ically, the intensity of this recognition may depend upon several f actors such as the social acceptance of homosexuality, the acknowledgment of homosexual orientation as a personal characteristic and not as a choice, the inf luence of religion or of religion-inspired parties in the political debate, and the strength and credibility of domestic gay advocates and associations. We may also distinguish dif f erent levels of protection. First, at a global level, international norms do not seem gay-friendly at all. If one looks at the 2008 French proposal to the U.N. General Assembly to introduce a standstill on national laws punishing homosexual acts between consenting adults, the resulting impression may be disappointing, f or the proposal was rejected with questionable justif ications. Last year, however, the U.N. High Commissioner f or Human Rights published a booklet (Born Free and Equal. Sexual Orientation and Gender Identity in International Human Rights Law) in which it stigmatized a pattern of systematic violence and discrimination directed at people in all regions because of their sexual orientation and contended that all States have an obligation, under international law, to protect the f undamental human rights of gays and lesbians. Accordingly, States are committed to protect people f rom homophobic violence, prevent torture and cruel, inhuman and degrading treatment of gay people, repeal laws criminalizing homosexuality and saf eguard gays f reedom of expression and associations. In this respect, the U.N. and other international institutions, by which States can easily communicate and directly share opinions on common concerns, are incrementally inf luencing individual nations and causing signif icant discussions on the national stage. Legal changes will surely take place, but they will presumably require a certain time. Regional environments are more favorable , in particular Europe and the Americas. T he European Court

of Human Rights has developed a well-settled jurisprudence on gay rights, which includes: the right to privacy (see Dudgeon v. U.K., 22 Oct. 1981, No. 7525/76); the right of not being discriminated against based on sexual orientation in matters related to child custody (Salgueiro da Silva Mouta v. Portugal, 22 Dec. 1999, No. 33290/96), insurance (P.B. & J.S. v. Austria, 22 July 2010, No. 18984/02), housing (Karner v. Austria, 24 July 2003, No. 40016/98 and Kozak v. Poland, 2 March 2010, No. 13102/02) and tax exemption relating to child support (J.M. v. U.K., 28 Sept. 2010, No. 37060/06); the right to adopt (to the extent that national laws entitle singles to accede adoption: see E.B. v. France, 22 Jan. 2008, No. 43546/02, which overruled Frett v. France, 26 Feb. 2002, No. 36515/97); and the right to secondparent adoption f or same-sex cohabiting couples (X & Others v. Austria, 19 Feb. 2013, No. 19010/07). As to same-sex marriage, the European Court established that, given the lack of consensus existing at the moment among the 47 Contracting States, Art. 12 of the European Convention on Human Rights does not grant same-sex couples the right to marry, neither does Art. 8 combined with Art. 14 pertaining nondiscrimination based on sexual orientation (Schalk & Kopf v. Austria, 24 June 2010, No. 30141/04). However, in the same ruling the Court firmly pointed out that gay and lesbian couples are family under Art. 8. Such a statement not only contradicts various precedents of the same Court, but also does open same-sex couples to the enjoyment of a potentially indef inite number of f amily rights at the national level (like in Italy: see Cassation Court, 12 March 2012, No. 4184). Furthermore, the Courts ref erence to the existing consensus among the Contracting States could justif y an overruling of this judgment in the f uture, should national marriage equality laws be passed in the majority of Contracting States. In respect of America, in 2012 the Inter-American Court of Human Rights f ound that Chiles ref usal to recognize the family relationship occurring between the applicant, a female lesbian, and her children amounted to a discrimination based on sexual orientation. Signif icantly, the Court recommended rehabilitation and appropriate ref orm by Chile in order to repair the damages suf f ered by the applicants (24 Feb. 2012, Atala Rif f o & Daughters v. Chile, Case No. 12.502). Given this f ragmented situation, we may appreciate that the recognition of human rights of gay and lesbian people at the national level would cause international law to move soon, through supranational courts ref erring to the States consensus, towards a model of protection f or same-sex couples. T his process will typically take place at a regional level. In any event, even if domestically same-sex marriage remains almost exclusively a matter of legislature, and theref ore of politics, human rights lie at its very f oundation. In this sense, globally international law could be considered an effective channel through which gayfriendly States talk to other States and perhaps, in the long period, convince them to change their attitude. T he language f or such a discussion would be international human rights law, a language that a growing number of nations would be hopef ully available to speak to each other in the near f uture. International law will become truly gay-f riendly when most nations talk this same languagea language of dignity, equality and justice . 1