A 2002 United Nations treaty body ruling that has been used to reject same-sex marriage claims in courts around the world has been substantially undermined by the UN’s own human rights committees, according to a new report by the Williams Institute at UCLA School of Law.
Researchers analyzed 96 Concluding Observations issued from 2016 to 2024 by three treaty bodies: the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination Against Women (CEDAW Committee), and the Committee on Economic, Social and Cultural Rights (CESCR). Treaty bodies are UN committees that monitor whether countries are complying with international human rights treaties. While their recommendations are nonbinding, they are regularly cited as persuasive authority by domestic courts and lawmakers worldwide.
In 2002, the HRC ruled in Joslin v. New Zealand that the international human rights law did not encompass a right to same-sex marriage. Joslin continues to hold sway in domestic courts two decades later. For example, in 2022, the UK Privy Council, the final court of appeal for Bermuda and the Cayman Islands, cited Joslin in ruling against the legalization of same-sex marriage in the islands. Similarly, Hong Kong’s Court of Final Appeal cited Joslin when it rejected same-sex marriage in 2023.
But the new report finds that the very committee that produced Joslin, along with the two others reviewed in the report, has spent the past decade moving sharply in the opposite direction. Between 2016 and 2024, United Nations treaty bodies voiced support for same-sex marriage in 44 Concluding Observations, either by recommending its legalization, expressing concern about its absence, or praising the concept of same-sex civil unions.
The HRC and CEDAW Committees have gone the furthest of the three committees, using language in multiple reports characterizing same-sex marriage as a right encompassed within the treaty bodies they oversee.
“There has been a sea change in how the law treats same-sex couples around the world,” said study author Holning Lau, Distinguished Visiting Scholar at the Williams Institute and Professor of Law at the University of North Carolina School of Law. “The Concluding Observations this study examines reflect a clear evolution in international human rights standards, one that domestic decision-makers can no longer afford to ignore.”
The report recommends that decision-makers consider the Concluding Observations reviewed in this study and stop citing Joslin as persuasive authority, since subsequent Concluding Observations have substantially undermined it. The report also recommends that treaty bodies clarify how civil partnerships relate to marriage, for example, as a transitional measure toward marriage equality.