The United Nations has begun openly advocating a controversial position on one of the most divisive issues facing its Member States. Even worse, the UN position does not enjoy support in international law.
Over the past few years, many UN bureaucrats have decided to ignore the consensus-led processes laid out in the UN Charter in order to advance the idea that individuals possess a right to same-sex marriage. The Secretary General himself, along with many bureaucrats occupying positions in various UN agencies or UN treaty-monitoring bodies, has been publicly championing same-sex marriage, even though no UN document produced by Member States has ever promoted same-sex marriage and the vast majority of Member States strongly oppose it.
The UN’s Recent Efforts to Promote Same-Sex Marriage
The major push at the UN for same-sex marriage can be traced back to July 2013, when the UN launched “Free & Equal,” a massive campaign designed specifically to advocate same-sex marriage and other LGBT concerns at the UN and around the world. Free & Equal boasts that its message has reached “more than a billion people.” Since the launch of Free & Equal, a continuous stream of LGBT advocacy has flooded the UN.
In July 2014, the UN Secretariat began recognizing the same-sex marriages of its employees. The head of the Secretariat, Secretary General Ban Ki-moon, implemented this “major policy change” without consulting any Member States. At the time, the Secretary General explicitly signaled that he believes same-sex marriage is a human right:
Human rights are at the core of the mission of the United Nations . . . . I am proud to stand for greater equality for all staff, and I call on all members of our UN family to unite in rejecting homophobia as discrimination that can never be tolerated at our workplace.
Last year, Ban Ki-moon continued his public support for same-sex marriage, calling the recent United States Supreme Court’s decision in Obergefell v. Hodges “a great step forward” and commenting, “Denying couples legal recognition of their relationship opens the door to widespread discrimination.” Such advocacy from a Secretary General on an issue that enjoys little support among Member States is virtually unheard of. And with UN agencies recently appointing thirty new staff persons designated as focal points for LGBT rights, the machinery is in place for even more widespread same-sex-marriage advocacy efforts at the UN.
Some UN bodies have taken the same pro same-sex-marriage stance. The United Nations Children’s Fund (“UNICEF”), for instance, explicitly stated in a 2014 publication that it supports states’ enactment of laws that provide “legal recognition” to “same-sex couples.” Similarly, UN treaty-monitoring bodies are beginning to promote same-sex marriage when the opportunity arises, even though such advocacy falls entirely outside the scope of their mandates. For example, the Committee on Economic, Social and Cultural Rights (“CESCR”) has noted “with appreciation” Argentina’s same-sex marriage act, expressed to Japan its opinion that the International Covenant on Civil and Political Rights requires identical benefits to be granted to “unmarried cohabiting same-sex couples” as to “unmarried cohabiting opposite-sex couples,” and asked Slovakia and Bulgaria to “consider adopting legislation that would grant legal recognition to homosexual couples and regulate the financial effects of such relationships.”
This advocacy for same-sex marriage is increasing, despite the fact that no UN document or international legal instrument requires such a redefinition of marriage.
No Right to Same-Sex Marriage under International Law
In fact, binding UN documents support the traditional understanding of marriage as a particular kind of relationship only possible between a man and a woman.
The Universal Declaration of Human Rights declares in article sixteen that “Men and women . . . have the right to marry and to found a family.” Similarly, the International Covenant on Civil and Political Rights (“ICCPR”), which is one of the ten core international human rights legal instruments, states in Article 23 that “the right of men and women of marriageable age to marry and to found a family shall be recognized.” It is difficult to interpret such statements as promoting anything but a traditional view of marriage; the drafters of these documents indisputably intended for this language to refer to unions between men and women.
Some would argue that Member States can simply reinterpret these texts to accord with new interpretations of marriage. Indeed, a few Member States have done so on the national level. But the new positions that a few states have adopted on this issue cannot be taken as license to redefine the meaning of texts adopted or ratified by a large proportion of the world’s governments. International law remains explicitly in support of traditional ideas about marriage.
Moreover, both the Human Rights Committee (HRC) and the European Court of Human Rights (ECHR) have confirmed that international law only guarantees a right to opposite-sex unions. In the 1999 case of Joslin v. New Zealand, the HRC held that
Use of the term “men and women,” rather than the general terms used elsewhere in Part III of the [ICCPR], has been consistently and uniformly understood as indicating that the treaty obligation of States parties . . . is to recognize as marriage only the union between a man and a woman wishing to marry each other.
In 2010, the ECHR took a similar position. In Schalk and Kopf v. Austria, the court acknowledged that the European Convention only recognizes marriage between one man and one woman.
Still, given the clear absence of a “right” to same-sex marriage under international law, the UN, from the highest level, is advocating for Member States to fundamentally redefine the institution of marriage.
Setting Law Aside in Favor of “LGBT Rights”
References to sexual orientation have been few and far between in official UN documents. The term “sexual orientation” has only ever appeared in two Human Rights Council (UNHRC) resolutions, both of which merely asked the UN to prepare a report documenting violence against LGBT people, and six General Assembly resolutions, all of which made one single reference to the term in the context of extrajudicial and arbitrary executions.
The two UNHRC resolutions culminated in a report on the current state of discrimination against LGBT persons around the world. This report specifically notes that “States are not required under international law to recognize same-sex marriage.” Yet the authors of the report nevertheless go so far as to urge countries to provide “legal recognition and protection to same-sex couples.”
This report vividly demonstrates both the UN bureaucracy’s awareness that a right to same-sex marriage is not supported by international law and its growing determination to set international law aside to advocate its own controversial political stance. Individual Member States have begun taking the same approach. The United States, for example, announced last September that it will begin advocating “sexual rights” at the UN despite acknowledging that such “rights” “are not human rights,” “are not enshrined in international human rights law,” and are not “part of customary international law.”
Ramping Up Advocacy
Over the past year, various UN organs and agencies have ramped up their advocacy efforts for all things LGBT-related. In August 2015, the UN Security Council held an Arria-Formula meeting concerning ISIL’s persecution of approximately thirty LGBT individuals. Many Member States pointed out that the focus of the meeting was oddly narrow, considering that the Security Council had never held a meeting on ISIL’s widespread persecution of other, vastly larger groups.
In September 2015, twelve UN agencies released a joint statement condemning violence against LGBT people and promoting a long list of LGBT “rights,” many of which have never been recognized by international law.
In November 2015, the United Nations Development Programme (UNDP) and the United Nations Office of the High Commissioner for Human Rights (OHCHR) announced that they were jointly developing a “Global LGBTI Inclusion Index” for implementing the 2030 Agenda—the recently adopted sustainable development goals that will guide all UN funding for the next fifteen years. UNDP and the OHCHR have launched this massive initiative despite there being no LGBT references in the text of the 2030 Agenda.
Most recently, in December 2015, the Permanent Mission of the Netherlands to the UN, which is a member of the LGBT Core Group, organized an interactive discussion on the “economic cost of exclusion and benefits of inclusion of LGBT individuals from the business, State and civil society perspectives.” The event’s opening remarks were provided by the president of the seventieth session of the UN General Assembly, marking the first time that a president of the GA attended, let alone spoke at or overtly endorsed, an event promoting LGBT “rights” at the UN.
Although none of these recent initiatives explicitly promoted same-sex marriage, they have begun to pave the way for analyzing human rights, development, and security issues through an “LGBT lens”—a lens that, once established, will certainly be used to pressure all Member States to legalize same-sex marriage.
Current State of Domestic Laws on Same-Sex Marriage
The current state of international law on same-sex marriage reflects the current state of domestic laws in UN Member States: domestic laws on marriage show that the vast majority of the world views marriage as a relationship between a man and a woman. Currently, only twenty-three countries allow same-sex marriage. Therefore, of the 193 Member States that make up the UN, almost 90 percent have refused to redefine marriage.
While many believe that the current trends favor the legalization of same-sex marriage, indications of a trend in the opposite direction are often ignored. For example, in recent years, thirteen countries in Europe have changed their laws to ensure that marriage is defined as being between one man and one woman.
Individual Countries Are Using the UN to Promote Same-Sex Marriage
A few nations have joined UN bureaucrats in promoting same-sex marriage at the UN. As Samantha Power, the US Ambassador to the UN, has recently said, the ultimate goal of these countries is to inject LGBT issues “into the DNA of the United Nations.” The vast majority of Member States are troubled that this issue continues to show up on the agenda even though it is consistently rejected from all UN documents.
Some Member States have especially used the UN’s largest system dedicated to the implementation of human rights—the Universal Periodic Review (“UPR”)—to recommend that various nations revise their laws. For example, Norway made recommendations to Australia, Estonia, and Slovenia that these nations redefine marriage. Similar recommendations were made by the United Kingdom to Estonia and Australia, by Spain to Ireland, by the Netherlands to Luxembourg and Austria, by Iceland to Colombia, and by Finland to Nigeria. France recommended to Poland that same-sex civil unions be recognized. Poland, Luxembourg, Slovenia, Ireland, and Australia “accepted” these recommendations, indicating their intention to implement them into national law.
Because UPR recommendations are meant to be concerned with violations of human rights as laid out in international law, these recommendations signal that the countries making them wish to interpret international human rights law to require same-sex marriage, even though both the texts of international treaties and court interpretations of those treaties make it abundantly clear that international law supports the traditional understanding of marriage. The UN system itself facilitates such use of the UPR forum by including “sexual orientation and gender identity” as one of the few categories of human rights recommendations in the database.
Resistance to Same-Sex Marriage
The fact that some nations accepted recommendations about same-sex marriage while other nations—including Estonia, Austria, Colombia, and Nigeria—rejected (in UN parlance, “noted”) these recommendations signals that, although there is a very clear divide between Member States on this issue, there is a tangible resistance to the idea that individuals have a right to same-sex marriage.
In fact, during the final negotiations of what is possibly the highest-level non-binding UN document to date—titled “Transforming Our World: the 2030 Agenda for Sustainable Development”—Member States favoring the traditional family removed all language promoting the institution of the family from the text because it contained the phrase “all families.” This phrase, as innocuous as it might sound, has been used to further the UN’s same-sex marriage agenda and has therefore been rejected time and again.
It remains to be seen what impact the UN’s efforts to mainstream the idea of a “right” to same-sex marriage will have on international and domestic laws. Regardless, it is noteworthy that UN bureaucrats are operating on an agenda independent of international law and the positions of the majority of UN Member States. The push is palpable.
Paul Coleman serves as senior counsel and deputy director of ADF International, where he specializes in international litigation with a focus on European law. He is also pivotal in developing an allied network of likeminded lawyers and organizations throughout Europe and abroad.