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Right to marry and found family: a most challenged human right in post modern era

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Indian Journal of International Law

Abstract

Key human rights instruments at global and regional level guarantee the right to marry and found family. These instruments take into their fold both the individual and social components of family. Post modern social dynamics ushered in radical changes and challenges to the traditional conception of marriage and family as a matter of hetero sexual relationship with its natural procreative ability. These challenges are typically deriving support from the individual centric human rights ideology. In this background, the adoption of Resolution on Protection of Family by the United Nations Human Rights Council (UNHRC) in 2015 reaffirming the social component of the family as the natural and fundamental group unit of society and its entitlement to protection by society and the state is viewed by some as adversely impacting the acceptance of the post modern conceptions of marriage and family. This article attempts to examine the importance of marriage and family, the post modern challenges to the traditional conceptions of marriage and family, the global as well as regional responses to these challenges and the judiciousness of the critical outlook of post modern groups towards the social character of family. This article pays special attention to the criticism against the UNHRC Resolution on Protection of Family, 2015 which appeals to states to protect family as a natural and fundamental group unit of society. The Article advocates that the criticism is unwarranted and that the social character of the family needs to be rightly construed and its importance be rightly promoted.

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Notes

  1. See generally, George Murdock G P (American anthropologist), Social Structure, (The MacMillan Company, New York, 1949). The author, an American anthropologist examined a total of 250 societies of various kinds, both from hunters and gatherers category, as well as pastoral, agrarian or industrialized and concluded that in each of these societies there are certain forms that fit in the definition of family as a social institution. This work helps to underscore the point that the variety of forms in which it can occur, the family is a universal social institution.

  2. ‘Concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. region to region within a State, and that it is therefore not possible to give the concept a standard definition’- The General Comment 19 on Art 23 of ICCPR, Adopted by the United Nations Human Rights Committee on 29th July 1994, UN Doc. HRI/GEN/1/Rev.1 (1994) 28{2}.

  3. Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age, (Beacon Press, 1996) 7. The author while identifying the postmodern families in Silicon Valley, California explained ‘I use the term postmodern family to signal the contested, ambivalent and undecided character of our contemporary family cultures’.

  4. Art 1.

  5. Art 23.

  6. Art 10.

  7. Art 17.

  8. Art 12

  9. Art 18 & 27.

  10. Ibid.

  11. Art 12.

  12. Art 17.

  13. Art 8.

  14. Art 11.

  15. Nicholas Bala & Rebecca Jaremko Bromwich, Context and Inclusivity in Canada’s Evolving Definition of the Family, 16 J Intl L Pol’y & Fam.(2002) 145. The article carries the argument that the definition of family is not static.

  16. Art 16(1) of UDHR, Art23 (2) of ICCPR, Art 12 of ECHR and Art 17(1) of ACHR.

  17. This approach is adopted by Spanish Constitutional Court in its judgment No 198/2012 of Nov 6, 2012 {8}, {10} <https://www.tribunalconstitucional.es/ResolucionesTraducidas/198-2012%20of%20November%206.pdf>.

  18. This line of argument is adopted by the Human Rights Committee while dealing with the complaint in Joslin V New Zealand. It commented that ‘Article 23, [2], of the Covenant is the only substantive provision in the Covenant which defines a right by using the term "men and women", rather than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from Article 23, [2], of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other,’ Human Rights Committee findings on Communication No 902/1999, delivered on 17th July, 2002, UN Doc CCPR/C/75/D/902/1999 {8.2}.

  19. Ibid.

  20. Ibid {4.4}.

  21. {8.2}.

  22. Paula Gerber et al, Marriage- A Human Right for All?, 36 Sydney Law Review (2014) 646.

  23. Ibid 647.

  24. William A Schabas (ed), Universal Declaration of Human Rights: The Travaux Préparatoires, Vol III (Cambridge University Press, 2013) 245.

  25. Paula Garber et al, Supra note 22 at 647.

  26. Oscar Roos & Anita Mackay, A Shift in the United Nations Human Rights Committee’s Jurisprudence on Marriage Equality? An Analysis of Two Recent Communications from Australia, Deakin Law School Legal Studies Research Paper No 19-4, (2019) 4{2} <http://ssrn.com/abstract=3454967>.

  27. Human Rights Committee found that Australian laws which prevented a married male to female transgender person from changing her sex on her birth certificate violated the right to privacy. Views adopted on 17th Mar 2017, Communication No 2172/2012, UN Doc. CCPR/C/119/D/2172/2012 (17 March 2017).

  28. Human Rights Committee found that that differentiating between foreign heterosexual marriages and foreign homosexual marriages amounts to unreasonable discrimination under ICCPR and violates article 14(1) read together with article 2(1). Views adopted on 28th Mar 2017, Communication No. 2216/2012 UN Doc. CCPR/C/119/D/2216/2012.

  29. Oscar Roos, Supra note 26 at 35.

  30. In this the author of the complaint is an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia's six constitutive states. He challenges two provisions of the Tasmanian Criminal Code, namely Sections 122(a) and (c) and 123, which criminalize various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private life. Human Rights Committee views adopted on 31st March 1994, Communication No 488/1992, UN Doc. CCPR/C/50D/488/1992.

  31. Advisory Opinion on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples State Obligations Concerning Change Of Name, Gender Identity, And Rights Derived From A Relationship Between Same-Sex Couples (Interpretation And Scope Of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in Relation to Article 1, of The American Convention On Human Rights, OC-24/17 of November 24, 2017.

  32. Ibid{224).

  33. Ibid{222}.

  34. 409 U.S. 810 (1972) (USA).

  35. 576 U.S. 644 (2015) (USA).

  36. Application 30141/04 decided on 24 June 2010,{55}{60}<http://www.refword.org/cases.ECHR,4c29fa712.htm>.

  37. Ibid {61}.

  38. Ibid {58}.

  39. Application 40183/07 decided on 9June 2016, Press release by the Registrar, European Court of Human Rights, <https://blog.iese.edu/nuriachinchilla/files/2016/07/Judgment-Chapin-and-Charpentier-v.-France>.

  40. WP (Crl.)No.76/2016 decided on 8th Jan 2018 {228}<https://indiankanoon.org/doc/119980704/>.

  41. Ibid {58}.

  42. Ibid [144}{228}.

  43. William A Schabas (ed), Universal Declaration of Human Rights: The Travaux Préparatoires, (Cambridge University Press, 2013) Vol III, 2458.

  44. Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family Has Failed, 70 Virginia Law Review (1984) 879, 945.

  45. Melanie B Jacobs, Why Just Two? Desegregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents’, 9 Journal of Law and Family Studies (2007) 313.

  46. For example, twelve states and the District of Columbia of USA allow couples to register their relationships.

  47. Human Rights Committee Concluding observations, Ireland, 30 July 2008, CCPR/C/IRL/CO/3, {8}.

  48. Advisory Opinion OC-24/17 of November 24, 2017 on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples State Obligations Concerning Change Of Name, Gender Identity, And Rights Derived From A Relationship Between Same-Sex Couples (Interpretation And Scope Of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in Relation to Article 1, of The American Convention On Human Rights, OC-24/17 of November 24, 2017 {181}.

  49. Ibid{221}.

  50. Schalk Vs Kopf, Supra note 36.

  51. {91}.

  52. [93].

  53. [94].

  54. [94].

  55. In Mata Estevez v. Spain, Application no 37784/97 decided on 21st October 1999, ECHR Case Reports No. 56501/00. The Court considered the homo sexual life only as private life, <http://hudoc.echr.coe.int/eng#{%22:[%22001-22334%22]}>.

  56. Supra note 36 [93]. The Court noted that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States.

  57. Ibid.

  58. Application no 29381/09 and 32684/09 decided on 7th November 2013, ECHR Case Reports No. 29381/09 and 32684/09. <https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-128294%22>.

  59. Ibid{78}.

  60. Ibid{73}.

  61. Ibid{84}.

  62. Decided on 18th December 2017, <India Kanoon/org/doc/19989797/>.

  63. Ibid {76}.

  64. S 2(f) Domestic Violence Act, 2005.

  65. Ibid.

  66. Supra note 62{80},{81}. The Allahabad High Court maintained that  the S 2(f) of the Domestic Violence Act though uses the expression ‘two persons’, does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the Act.

  67. Supra note 40.

  68. Advisory opinion of Inter American Court of Human Rights, Supra note 48{176}.

  69. Ibid{177}.

  70. (2001) 4 SCC, 258-259.

  71. Art 16(1)&(3) of UDHR, Art 23(2)&(3) of ICCPR, Art 10(1) of ICESCR, Art 17(1)&(2) of ACHR and Art 18(1)&(2) of ACHPR.

  72. Resolution on Protection of the Family: Contribution of the Family to the Realization of the Right to an Adequate Standard of Living for its Members, Particularly through its Role in Poverty Eradication and Achieving Sustainable Development, Adopted by UNHRC on 3rd July 2015 at its 29th Session,. A/HRC/RES/29/22 Fourteen countries, including the United States, United Kingdom, and several other European nations voted against it, while 29 voted in favor and four abstained.

  73. Ibid [2].

  74. Ibid [5].

  75. Ibid [6].

  76. Ibid [26}, {28}, {32}.

  77. Ibid [23].

  78. International Year of the Family, adopted by UNGA on 8 December 1989 at its 44th Session, UNGA Resol. 44/82.

  79. ‘Changing Families: Challenges and Opportunities’{2)}, Background Note on International Day of Families adopted on 15 May 2006, <http://undesadspd.org/Family/InternationalObservances/Families/2006.asp>.

  80. Art 16(3) of UDHR, Art 23(1) of ICCPR, Art 10(1)of ICESCR, Art 17(1) of ACHR and Art 18(1) of ACHPR.

  81. Ireland’s general comment in its voting statement on HRC’s draft resolution (A/HRC/29/L.25) on 3 July 2015, <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16196&LangID=E>.

  82. The Weakend Australian, 18 July, 2015.

  83. Art 19 Organization, UNHRC Protection of the Family; a Thin Veil for Censorship, Jun 27, 2014,{1} <https://www.article19.org/resources/un-hrc-protection-family-thin-veil-censorship/>.

  84. Sexual Rights Initiative, SRI Condemns UNHRC 29 Resolution on ‘Protection of the Family, Jul 6, 2015, {1}, <http://sexualrightsinitiative.com/news/2015-jul/sri-condemns-hrc29-resolution-protection-family>.

  85. European Parliament's LGBT1 Intergroup, Rights, UN Human Rights Council adopts Non-inclusive ‘Protection of the Family’ Resolution, June 27, 2015,{4}, http://www.lgbt-ep.eu/press-releases/un-human-rights-council-adopts-non-inclusive-protection-of-the-family-resolution/.

  86. UNHRC Resol, Supra note 72, [9].

  87. Ibid [20].

  88. Ibid[23].

  89. Ibid [6].

  90. Ibid[4].

  91. To cite a few, the UN statement on Rights to All, 2008 read in the General Assembly condemned violence, harassment, discrimination, exclusion, stigmatization and prejudice based on sexual orientation and gender identity that undermine the personal integrity and dignity; UNHRC Resolution A/HRC/17/L. (/Rev adopted on 17 June 2011 which expressed grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity and called upon the High Commissioner for a study to document such violence and discrimination and examine how international human rights law can be used to end violence and related human rights sexual orientation and the UN has even adopted employer policy in 2014 to extend equal benefits to its employees who have entered into same-sex unions in jurisdictions where they are legal.

  92. Adopted by UNHRC on 15 July 2016 at its 32nd Session, A/UNHRC/RES/32/2 {7}.

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  1. Honorary Professor of Law, Andhra University, Visakhapatnam, India

    Rajyalakshmi Vundamati

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Vundamati, R. Right to marry and found family: a most challenged human right in post modern era. Indian Journal of International Law 59, 229–255 (2021). https://doi.org/10.1007/s40901-020-00119-8

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