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... Show moreThis 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 LawBlog (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. Show less
Among the 21 European countries surveyed for the LawsAndFamilies Database (www.lawsandfamilies.eu), there is a clear trend (fortified by European law) of offering same-sex couples the opportunity... Show moreAmong the 21 European countries surveyed for the LawsAndFamilies Database (www.lawsandfamilies.eu), there is a clear trend (fortified by European law) of offering same-sex couples the opportunity to formalise their relationship as marriage and/or as registered partnership, and of attaching more and more rights and responsibilities to the informal cohabitation, the registered partnership and/or the civil marriage of two people of the same sex. This chapter focusses on the timing of all these changes. In a five periods analysis, it establishes whether major partnership rights were extended to same-sex couples at the time of the introduction of registered partnership, or before, or at the time of the opening up of marriage, or between those two moments, or after the opening up of marriage. Thereby, and by calculating the same-sex legal recognitionconsensus among the countries surveyed for each of 26 selected rights, it finds nine typical sequences: Attitudes before rights; Rights before status; Bad-times rights before good-times rights; Responsibilities before benefits; Individual partner rights before couple rights; Partnership before marriage; Immigration rights among the first to be gained; Parenting rights among the last to be gained; Legal recognition before social legitimacy. Show less
This article (also online at www.articolo29.it/genius) gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family...Show moreThis article (also online at www.articolo29.it/genius) gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family formats (such as registered partnership and de facto union) have been made available in a growing number of countries. The number of countries that have opened up marriage to same-sex couples is also growing. Authors of comparative family law have proposed various classifications of the new legal family formats. Meanwhile, an increasing number of EU laws now acknowledge non-marital partners. The European Courts have been asked several times to rule on controversial differentiations between different legal family formats or between same-sex and different-sex partners. In the case law of the European Court of Human Rights one can find examples of affirmative eloquence which suggest that more steps towards full legal recognition of same-sex families could be expected. This article also appeared in GenIUS – Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere 2014/2, p. 42-56. An earlier version of this text appeared as chapter 4 of the report: O. Thevenon & G. Neyer (eds), Family Policies and Diversity in Europe: The state-of-the-art regarding fertility, work, care, leave, laws and self-sufficiency, Stockholm: Stockholm University 2014 (FamiliesAndSocieties Working Paper Series, nr. 7, p 42-55), and in C. Casonato & A. Schuster (eds.), Rights On The Move – Rainbow Families in Europe (Proceedings of the Conference, Trento, 16-17 October 2014), Trento: University of Trento 2014, p. 121-134. Show less
This article is available online at http://opil.ouplaw.com. International protection for same-sex partnership is a topic that has seen important developments recently, reflecting more extensive... Show moreThis article is available online at http://opil.ouplaw.com. International protection for same-sex partnership is a topic that has seen important developments recently, reflecting more extensive national developments in a growing number of countries. These national and international developments are likely to continue and to reinforce each other. The current state of international law seems to be quite clear on two points: discrimination between unmarried different-sex cohabitants and unmarried same-sex cohabitants is prohibited, and exclusion of same-sex couples from marriage is (probably) still permissible. In between those two points the field is less clear. There is growing support for the proposition that a registered partnership or same-sex marriage validly contracted in one country should be recognized by international organizations and — for certain purposes — also by other countries. And there are reasons to expect that international bodies will apply the prohibition of indirect discrimination to situations where same-sex partners are being excluded from certain legal benefits, because these are only available to married partners. This indirect discrimination argument, which focuses on providing specific benefits, rather than on obtaining status, has been accepted already in several domestic courts. In the short run, persuading international human rights courts and bodies to apply it will probably be the most effective way of increasing the international protection of same-sex partnership. Several countries have, in response to claims that marriage should be opened up to same-sex couples, introduced a form of registered partnership. Assuming that international human rights law will not soon require all countries in the world to open up marriage to same-sex couples, and assuming that many legislatures will be reluctant to attach all rights and obligations of marriage to non-registered cohabitation, it seems possible that some day international human rights courts and bodies will start to require that countries should introduce some alternative to marriage. Any claims in this field deserve serious attention, because, as the European Court of Human Rights has consistently put it, the right to respect for private life encompasses ‘the right to establish and develop relationships with other human beings’. Show less
The article resulting from this paper is online at www.articolo29.it/genius. This paper gives a compact overview of developments in national and European law regarding same-sex partners. Over the... Show moreThe article resulting from this paper is online at www.articolo29.it/genius. This paper gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family formats (such as registered partnership and de facto union) have been made available in a growing number of countries. The number of countries that have opened up marriage to same-sex couples is also growing. Authors of comparative family law have proposed various classifications of the new legal family formats. Meanwhile, an increasing number of EU laws now acknowledge non-marital partners. The European Courts have been asked several times to rule on controversial differentiations between different legal family formats or between same-sex and different-sex partners. In the case law of the European Court of Human Rights one can find examples of affirmative eloquence which suggest that more steps towards full legal recognition of same-sex families could be expected. An earlier version of this paper appeared as chapter 4 of the report: O. Thevenon & G. Neyer (eds.), Family Policies and Diversity in Europe: The state-of-the-art regarding fertility, work, care, leave, laws and self-sufficiency, Stockholm: Stockholm University 2014 (FamiliesAndSocieties Working Paper Series, nr. 7, p 42-55). An updated and expanded version of this that chapter appeared as 'Great diversity and some equality: non-marital legal family formats for same-sex couples in Europe' in the book the book: M. van den Brink et al. (eds.), Equality and human rights: nothing but trouble? – Liber amicorum Titia Loenen, Utrecht, Netherlands Institute of Human Rights 2015 (SIM Special 38, p. 223-245 & 414) and in the journal: GenIUS – Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere 2014, p. 42-56. Show less
