Abstract
According to Article 23(2) of the International Covenant on Civil and Political Rights, the right of men and women of marriageable age to marry and found a family should be recognised. Traditionally, the right to marry and found a family is reserved for heterosexual couples only. This view is embodied in the 2002 United Nations Communication of Joslin v New Zealand. In 2013, same-sex marriage in New Zealand became legal. Nevertheless, Joslin is still being cited elsewhere by anti-same-sex marriage campaigners and lawyers globally.
Even in a country-specific scenario, the legal status of same-sex marriage is far from clear. For example, since 2014 same-sex marriage has become legal in England, Wales and Scotland but this does not apply to Northern Ireland. Whilst many Western countries campaign for same-sex marriage, many postcolonial countries still criminalise private male-to-male consensual sex between adults. Relying on the defence of ‘Asian Values’, some particularly argue that ‘gay rights are not human rights’.
There seems to be a general South/North or East/West divide (developing/developed) in the global debate on same-sex marriage. Using the 2017 Taiwanese case of Cha-Wei Chi v Taipei, reportedly ‘the first same-sex marriage case in Asia’, this paper explores the validity of the above cultural relativist argument against universal human rights.
Even in a country-specific scenario, the legal status of same-sex marriage is far from clear. For example, since 2014 same-sex marriage has become legal in England, Wales and Scotland but this does not apply to Northern Ireland. Whilst many Western countries campaign for same-sex marriage, many postcolonial countries still criminalise private male-to-male consensual sex between adults. Relying on the defence of ‘Asian Values’, some particularly argue that ‘gay rights are not human rights’.
There seems to be a general South/North or East/West divide (developing/developed) in the global debate on same-sex marriage. Using the 2017 Taiwanese case of Cha-Wei Chi v Taipei, reportedly ‘the first same-sex marriage case in Asia’, this paper explores the validity of the above cultural relativist argument against universal human rights.
| Original language | English |
|---|---|
| Title of host publication | The Asian Yearbook of Human Rights and Humanitarian Law |
| Subtitle of host publication | Volume 3, 2019, Law, Gender and Sexuality |
| Editors | Javaid Rehman, Ayesha Shahid, Steve Foster |
| Publisher | Brill |
| Volume | 3 |
| ISBN (Electronic) | 978-90-04-40171-6 |
| ISBN (Print) | 978-90-04-40170-9 |
| Publication status | Published - 29 Aug 2019 |
| Event | Law Gender and Sexuality Conference - British Institute of International and Comparative Law, London Duration: 26 Oct 2018 → 26 Oct 2018 https://www.biicl.org/event/1304/3rd-annual-international-conference-law-gender-and-sexuality |
Publication series
| Name | Asia Yearbook of International Human Rights and Humanitarian Law |
|---|---|
| Publisher | Brill |
| Volume | 3 |
| ISSN (Print) | 2452-0578 |
Conference
| Conference | Law Gender and Sexuality Conference |
|---|---|
| City | London |
| Period | 26/10/18 → 26/10/18 |
| Internet address |
Keywords
- Same Sex Marriage
- Taiwan
- Asia
- Universalism
- Cultural Relativism