Barend Vlaardingerbroek, MercatorNet
The claim that same-sex marriage is a basic human right finds no support in international human rights declarations.
The acceptance that SSM is a basic human right has spread like wildfire across the western world. – Irish Examiner, 6 February 2014
So it would appear. The argument with which we are all familiar is that marriage is a universal human right, and it is accordingly arbitrary and discriminatory to disallow two people of the same sex to claim the right to marry. But does a right to same-sex marriage (SSM) stem from international human rights (HR) declarations?
The right to marry as a fundamental human right is enshrined in three of the ‘big four’ HR declarations: the Universal Declaration of Human Rights 1948 (UDHR), the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights 1950 – ECHR), and the American Convention on Human Rights 1969 (ACHR). (The African Charter on Human and People’s Rights 1981 does not mention the right to marry per se, but does talk about the family unit as we shall see a bit later.) The UDHR is now customary international law while the ECHR has legal teeth as a treaty and has the European Court of Human Rights (ECtHR) behind it. Let’s take a look at the exact words used:
UDHR: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family.”
ECHR: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
ACHR: “The rights of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention.” (The Convention lists as grounds for discrimination “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” )
Two important observations emerge from these statements.