Family Values: The Recognition of Same-Sex Relationships in International Law
| Author | Loveday Hodson |
| Published date | 01 March 2004 |
| Date | 01 March 2004 |
| DOI | http://doi.org/10.1177/016934410402200103 |
| Subject Matter | Part A: Article |
FAMILY VALUES: THE RECOGNITION OF
SAME-SEX RELATIONSHIPS IN
INTERNATIONAL LAW
LOVEDAY HODSON*
Abstract
There are currently no international human rights treaties in force that explicitly
provide for the recognition and protection of same-sex relationships. The ‘family’ that is
safeguarded under human rights treaties has been consistently defined in a
heterosexual way. The consequence of non-recognition of same-sex relationships is a
considerable degree of suffering and discrimination. This article questions whether it is
justifiable for the international law of human rights to deny its protection to those
people in same-sex relationships. It points in particular to recent developments that
have taken place in many countries towards offering these relationships legal
recognition. This article concludes that, given its commitment to equality and
tolerance, international human rights law’s failure to recognise same-sex relationships
is increasingly untenable.
1. INTRODUCTION
There are currently in force a vast (and ever-increasing) number of
international and regional human rights treaties that aim to ensure that all
‘are born free and equal in dignity and rights’;
1
many of which offer special
protection to ‘the family’ unit. In several countries in recent years there have
been remarkable legal and social developments concerning the rights of
same-sex couples,
2
along with an increasing global awareness of the
discrimination that is suffered by gay people.
3
It therefore seems surprising
that not one of these human rights treaties expressly provides for the
recognition and protection of gay relationships, and that these relationships
have yet to be accepted as being included within the definition of ‘the
Netherlands Quarterly of Human Rights, Vol. 22/1, 33-57, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 33
* Ph.D. Student, University of Warwick, Coventry, the United Kingdom.
1
Article 1, Universal Declaration of Human Rights 1948.
2
In this article I use the terms ‘same-sex relationships’ and ‘gay relationships’ interchangeably.
3
For a study of global discrimination against homosexuals, see Amnesty International, Breaking
the Silence: Human Rights Violations Based on Sexual Orientation, Amnesty International, London,
1995 and Amnesty International, Crimes of hate, conspiracy of silence: Torture and ill-treatment based
on sexual identity, Amnesty International, London, 2001. See also the web-site of the
International Gay and Lesbian Human Rights Commission at www.iglhrc.org.
34
family’ that these treaties do protect. In the enforcement of negative gay
rights, that is in the prevention of interference by States in gay (usually
males’) sexual lives by means of criminal law, international human rights
treaties have proved a valuable asset. However, it is the want of legal
recognition of gay relationships, and their consequential lack of positive
rights and legal protection, that is currently the greatest discrimination
against gay people in many countries. Recognising the equal value of gay
relationships and respecting the right to form and maintain these bonds is
something that the international community has hitherto been unwilling to
address.
This article asserts two propositions. Firstly, that ‘the family’ is a social
and legal construct, the aim of which is to privilege certain relationships
within society. This is true both at the national and the international level.
Deciding which relationships to privilege is therefore intrinsically linked to
the social and cultural norms of any society, making it an enormously
complex and sensitive issue for human rights tribunals to grapple with.
Secondly, ‘the family’ international human rights law has so far recognised
and protected has been broadly defined, but only within a heterosexual
context. It has so far excluded same-sex relationships. It is therefore the
responsibility of the international community to question whether there are
any satisfactory reasons for this exclusion. This article also asks whether, in
light of the increasing global acceptance of homosexuality in many
countries and the significant steps made at the domestic level towards
placing same-sex relationships within a legal framework, this position
remains tenable. Human rights tribunals must avoid ignoring discrimina-
tion that is based upon prejudice alone, otherwise they merely perpetuate
the current power structures; they must also avoid remaining unaffected of
global developments or else they risk appearing irrelevant and out-of-touch.
2. HOW HAS ‘THE FAMILY’ BEEN DEFINED IN INTERNATIONAL
HUMAN RIGHTS LAW?
Since the 1948 Universal Declaration of Human Rights was adopted by the
General Assembly of the United Nations the international community has
expressed its concern for the protection of ‘the family’.
4
Several major
international and regional human rights treaties now offer protection to this
unit.
5
However most of the monitoring bodies created by these treaties have
provided little analysis as to what ‘the family’ they are offering protection to
Loveday Hodson
4
Article 16(3).
5
For example see Article 23 of the UN’s International Covenant on Civil and Political Rights;
Article 8 of the European Convention on Human Rights; Article 18 or the African Charter on
Human and Peoples’ Rights; Article 11 of the American Convention on Human Rights, 1969.
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