Executive Summary
United Nations treaty bodies—expert committees that oversee the implementation of international human rights treaties—have played a consequential role in shaping LGBTQ rights. Although their pronouncements are non-binding, domestic courts and other legal actors have cited them as persuasive authority in decisions concerning same-sex marriage and partnership rights.
This study examined 96 Concluding Observations issued between 2016 and 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). Concluding Observations are reports assessing individual states parties’ implementation of specific treaties. The study analyzed these documents to elucidate the treaty bodies’ evolving guidance on same-sex couple rights.
Key Findings
- In 2002, the HRC ruled in Joslin v. New Zealand that the International Covenant on Civil and Political Rights did not encompass a right to same-sex marriage. Post-Joslin Concluding Observations from both the HRC and the CEDAW Committee have shifted away from that ruling, severely undercutting its persuasiveness.
- The treaty bodies voiced support for same-sex marriage in 44 Concluding Observations. The HRC and CEDAW Committee have used especially strong language, characterizing same-sex marriage as a right encompassed within the treaties they oversee.
- The treaty bodies voiced support for same-sex civil partnerships in 35 Concluding Observations, though without clearly articulating the relationship between civil partnerships and marriage.
- Regardless of marital status, the Concluding Observations indicate that states must support same-sex couples’ equality across a range of legal domains—including housing, property, inheritance, taxation, domestic violence protections, health care, social security, adoption, and assisted reproductive technologies.
Recommendations
- Decision-makers engaged in ongoing debates over same-sex couple rights should consider the Concluding Observations analyzed in this study, which reflect the treaty bodies’ evolving positions on the human rights dimensions of these issues.
- If and when the HRC receives a new complaint from a same-sex couple seeking to marry, it should explicitly repudiate Joslin—a step consistent with post-Joslin Concluding Observations that would bring greater coherence to the HRC’s pronouncements.
- Domestic courts should cease citing Joslin as persuasive authority, given that subsequent Concluding Observations have substantially undermined it.
- The HRC and CEDAW Committee should clarify how civil partnerships relate to marriage—for instance, by articulating that civil partnerships represent a transitional measure for countries not yet able to legalize same-sex marriage, with the expectation that full marriage equality follows.