Relying on Human Rights Treaties to establish access to Same-sex registered Partnerships and Marriage – Confronting the Question of Cultural Sensitivities

Abstract

This piece sets out to compare the stance of the Inter-American Court of Human Rights (IACtHR) under the American Convention on Human Rights (ACHR) with that of the European Court of Human Rights (ECtHR) (known as Strasbourg Court) adjudicating on the European Convention on Human Rights (ECHR) in relation to family rights of same-sex couples. Specifically, it looks at the stances taken by the two Courts towards same-sex relationship formalisations – registered partnerships and marriage – exploring their responses to the stances taken in the states within their jurisdiction towards such formalisations. This article confronts and compares the stances taken by the two Courts, and their underlying bases, when they encounter the varying stances on this controversial issue taken in the states in question, relating to cultural predilections. The article concludes that reliance on finding a consensus among the contracting states in this context has had a detrimental impact on the Strasbourg jurisprudence in terms of upholding the principle of non-discrimination, an impact that can be traced to discriminatory stances taken in a number of the ECHR-contracting states towards same-sex unions. It finds in contrast that the Inter-American Court of Human Rights has not accepted that finding such a consensus should affect its decisions in this context, and therefore it has not allowed cultural acceptance of homophobia to affect its stance. Keywords: ACHR; ECHR; ECtHR; IACtHR; Same-sex marriage; Strasbourg Court