인권법 측면에서의 동성 커플의 법적 인정에 대한 연구- 인권위원회와 유럽인권재판소 사례 분석을 중심으로 -
Study on Legal Recognition of Same-Sex Couples under Human Rights Law - Considering Cases of the Human Rights Committee and the European Court of Human Rights -
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International trend is changing towards accepting legal recognition of same-sex couples. About 20 states including Denmark which introduced registered partnership for the first time in 1989 grant same-sex couples the right to register their relationship. Since Netherlands legalized same-sex marriage in 2001, same-sex couples in another 20 states are entitled to the right to marry. Recent researches have proved that legal recognition of same-sex couples have positive effect on their societies. In spite of this progressive situation on legal recognition of same-sex couples, international human rights treaty-bodies have not suggested ground-breaking interpretation on international human rights norms. Human Rights Committee paid attention to the term of men and women in Article 23 of the International Covenant on Civil and Political Rights and, therefore, decided that there is no violation of the Covenant with regard to New Zealand law which did not permit same-sex marriage. European Court of Human Rights held that Austria which banned same-sex marriage but permitted registered partnership for same-sex couples infringes the rights of same-sex couples. Although the Court held that Greece permitting registered partnership only for heterosexual couples violate the European Convention on Human Rights, it determined that Contracting Parties are not obliged to enact a registered partnership law for same-sex couples. However, these judgements of the international human rights treaty-bodies do not mean incompatibility between legal recognition of same-sex couples and international human rights norms. It should be noted that the international human rights bodies consider legal recognition of same-sex couples as compatible with international human rights standards. The European Court of Human Rights does not accept the positive duty of States Parties to legalize marriage or registered partnership for same-sex couples just because it follows its interpretation doctrine, that is, margin of appreciation which regards international human rights standards as the minimum rules for the protection of human rights and values the primary role of States Parties to protect human rights. Although Article 12 of the European Convention on Human Rights clearly provides men and women of marriageable age the rights to marry and to found a family, the European Court of Human Rights confirmed that the rights to marry and to found a family under the Convention are not confined only to men and women. Furthermore, the Court pointed out that States Parties have legally recognized same-sex couples' relationship more and more and stressed that interpretation of the Convention should be developed over time. Moreover, the Human Rights Committee mentioned that States Parties must take appropriate measures to provide same-sex couples the rights and benefits of spouses. Through analysis on cases of the international human rights treaty-bodies, this paper suggests gradual improvement on legal recognition of same-sex couples. There are several obstacles to legal recognition of same-sex couples; Article 36, Paragraph 1 of the Constitution of Korea provides equality of men and women in the institution of marriage, public awareness on this issue has not yet been ripen, and there are few academic researches on this issue. However, it is not disputable that same-sex couples need to be protected according to legal rules and they are also human rights holders. Consequently, this paper proposes introduction of registered partnership for same-sex couples and then, if the time is ripe, same-sex marriage.
Abstract
International trend is changing towards accepting legal recognition of same-sex couples. About 20 states including Denmark which introduced registered partnership for the first time in 1989 grant same-sex couples the right to register their relationship. Since Netherlands legalized same-sex marriage in 2001, same-sex couples in another 20 states are entitled to the right to marry. Recent researches have proved that legal recognition of same-sex couples have positive effect on their societies. In spite of this progressive situation on legal recognition of same-sex couples, international human rights treaty-bodies have not suggested ground-breaking interpretation on international human rights norms. Human Rights Committee paid attention to the term of men and women in Article 23 of the International Covenant on Civil and Political Rights and, therefore, decided that there is no violation of the Covenant with regard to New Zealand law which did not permit same-sex marriage. European Court of Human Rights held that Austria which banned same-sex marriage but permitted registered partnership for same-sex couples infringes the rights of same-sex couples. Although the Court held that Greece permitting registered partnership only for heterosexual couples violate the European Convention on Human Rights, it determined that Contracting Parties are not obliged to enact a registered partnership law for same-sex couples. However, these judgements of the international human rights treaty-bodies do not mean incompatibility between legal recognition of same-sex couples and international human rights norms. It should be noted that the international human rights bodies consider legal recognition of same-sex couples as compatible with international human rights standards. The European Court of Human Rights does not accept the positive duty of States Parties to legalize marriage or registered partnership for same-sex couples just because it follows its interpretation doctrine, that is, margin of appreciation which regards international human rights standards as the minimum rules for the protection of human rights and values the primary role of States Parties to protect human rights. Although Article 12 of the European Convention on Human Rights clearly provides men and women of marriageable age the rights to marry and to found a family, the European Court of Human Rights confirmed that the rights to marry and to found a family under the Convention are not confined only to men and women. Furthermore, the Court pointed out that States Parties have legally recognized same-sex couples' relationship more and more and stressed that interpretation of the Convention should be developed over time. Moreover, the Human Rights Committee mentioned that States Parties must take appropriate measures to provide same-sex couples the rights and benefits of spouses. Through analysis on cases of the international human rights treaty-bodies, this paper suggests gradual improvement on legal recognition of same-sex couples. There are several obstacles to legal recognition of same-sex couples; Article 36, Paragraph 1 of the Constitution of Korea provides equality of men and women in the institution of marriage, public awareness on this issue has not yet been ripen, and there are few academic researches on this issue. However, it is not disputable that same-sex couples need to be protected according to legal rules and they are also human rights holders. Consequently, this paper proposes introduction of registered partnership for same-sex couples and then, if the time is ripe, same-sex marriage.
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