Same-Sex Partnership, International Protection: [last updated July 2021]

Waaldijk, K. (2021)

Part of book or chapter of book

This online article discusses all (almost 50) rulings given by international judicial and quasi-judicial bodies on the topic of same-sex partnership, plus relevant written and soft law from other bodies of international organisations such as the UN and the EU. The article covers human rights law and international staff law, and touches on rules of free movement and private international law. It includes paragraphs on state practice, parenting issues, same-sex marriage, informal cohabitation, registered partnership, international recognition of existing same-sex marriages, and international recognition of existing registered partnerships. Earlier versions of this article appeared online in 2009 and 2014 and in print in 2012. In light of the considerable legal developments since then, it now concludes as follows (in paragraphs 38-40):  

“International protection for same-sex partnership is a topic that has seen important developments recently (…). At least two ‘global’ norms have emerged:

(1) a prohibition of discrimination between unmarried different-sex cohabitants and unmarried same-sex cohabitants; and

(2) an obligation to recognize existing same-sex marriages from other jurisdictions (at least for some purposes).

Two related ‘global’ norms seem to be emerging (…):

(3) an obligation to respect existing marriages that are becoming ‘same-sex’ because one of the spouses is having a change of sex/gender; and

(4) an obligation to recognize existing registered partnerships from other jurisdictions (at least for some purposes). (…)

Authority for these four ‘global’ norms can be found in decisions of bodies of the UN, in decisions of European and Inter-American bodies, and also in the domestic law of countries in different parts of the world. (…)

In two regions of the world (Europe and the Americas) two further norms are emerging. One of these regionally emerging norms is:

(5) an obligation to give same-sex couples access to a legal framework for their relationship.

In the Americas this emerging obligation ultimately requires the opening up of marriage, while in Europe it still leaves it to the countries themselves to decide whether this legal framework will be marriage or only a form of registered partnership (…). The other regionally emerging norm is:

(6) an obligation to give same-sex couples access to rights and benefits derived from marriage.

In the Americas this obligation seems to concern all rights that flow from marriage, while in Europe it so far seems limited to core or essential rights, such as the right to live in the same country as your partner (…). For these emerging regional norms there is not yet much authority in decisions of bodies of the UN, and even less from regional bodies outside Europe and the Americas. However, these norms do reflect developments in domestic law that have at least started on all continents. It seems likely that in both regions the international case law will crystalize further, and there seems scope for some convergence between the approaches of ECtHR and IACtHR. (…) (Also because) both courts have acknowledged both the controversial character and the dynamic nature of developments in the national and international protection of same-sex partnership. (…)”

This article is available (to subscribers - and sometimes also to others) at: https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1739. A summary by Kees Waaldijk ('Six international legal norms on the protection of same-sex partnership have emerged') was published in the International and Comparative SOGIESC Law Blog (edited by Andreas R. Ziegler, University of Lausanne): https://sogiesc.law.blog/2021/12/20/six-international-legal-norms-on-the-protection-of-same-sex-partnership-have-emerged.

• Sexual Orientation
• Same-Sex Partnership
• Family
• Privacy
• Equality
• Marriage
• Registered Partnership
• Cohabitation
• International Recognition

• All authors: Waaldijk, K.
• Editor(s): Peters, A.; Wolfrum, R.
• Date: 2021-11-25
• Title of host publication: Max Planck Encyclopedia of Public International Law; The Max Planck Encyclopedia of Public International Law (MPEPIL)
• Link: https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-97801992...