The Right to Marry. A Right or Privilege? Same-sex Couples in Europe

Abstract: International human rights law does not exist in a vacuum. It owes its basis in public international law and presupposes the existence of States and State law. Since the end of World War II, gigantic steps have been taken, both on national and international level, to promote the development of friendly relations between people and peoples and to facilitate recognition of equal and inalienable rights of all members of the human family, commonly known as 'fundamental human rights'. At present, 192 members of the United Nations, encompassing almost every recognized individual State, confirm this pledge to humanity, proclaimed in the Universal Declaration of Human Rights on 10 December 1948 and subsequently implemented in various international human rights treaties. As a result, men and women shall enjoy equality before the law. In spite of this, the truth remains that people and peoples of the world still suffer social and legal inequality. This thesis manifests one part of the problem, namely the fact that international law does not recognize and protect marriage between same-sex couples as part of their human rights. It examines 'the right to marry', albeit primarily in European context, and questions the paradox between differing national legislation, whereas some States have legalized same-sex marriage while others have not. Consequently, it discusses the nature of human rights and seeks a reasoned answer as to why same-sex couples cannot invoke the right to marry by means of current human rights instruments, akin to their heterosexual family members. Finally, it offers a prediction about the legal status of same-sex marriage in Europe, i.e. what 'the law' ought to be or may in the future be.