Most human rights instruments in the United Nations system touch upon rights relating to marriage and family formation, but they tend to do so in rather commonsensical and vague terms. After finding out where the definition of family in the UDHR came from, this sub-chapter offers a look into the what legally binding international treaties the UDHR has influenced most directly. The treaties discussed here are the ICCPR (International Convention on Civil and Political Rights), ICESCR (International Convention on Economic, Social and Cultural Rights), CEDAW (Convention on the Elimination of Discrimination Against Women) and CRC (Convention on the Rights of the Child). As the rest of this chapter and the empirical analysis in this study (Chapters 4, 5 and 6) demonstrate, family is not taken to be only the family envisaged in papal encyclicals neither by bodies of the United Nations
interpreting the meaning of global human rights treaties of the United Nations such as the Human Rights Committee (the body interpreting the ICCPR) nor by the CEDAW Committee.
The 1966 United Nations International Covenant on Civil and Political Rights, a legally binding international State-level treaty with nearly universal ratification, articulates many of the rights set out in the UDHR in more specific terms. Article 23 does this with the ‘right to marry and to found a family’:
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.
(3) No marriage shall be entered into without the free and full consent of the intending spouses.
(4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
ICCPR, Article 23
Interestingly, the ICCPR places “the family” and its natural and fundamental character and its need for State protection as the first component of the Article, after which the provisions concerning marriage are spelt out. This would suggest a more foundational character being given to “the family” – as the foundation of society (all societies?) it articulates the need and the purpose for men and women of marriageable age to marry. The non-discrimination clause in article 26 is especially important, intending to protect “against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
In addition, Article 10 of the ICESCR, the International Covenant on Economic, Social and Cultural Rights states that:
(1) The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
(2) Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
Concept of Family in International Human Rights Law
(3) Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.
Article 10, ICESCR
The Committee on Economic, Social and Cultural Rights mentions ’family’ in several of its documents, but it has not given a further definition on what it stands for compared to General Comment 19 of the Human Rights Committee.
The task of the UN Human Rights Committee is to monitor the implementation of the ICCPR. The Human Rights Committee is an independent body made up of experts in the field of international human rights law. The HRC has actually found that the mention of ‘sex’ as a basis for discrimination also covers sexual orientation. This emanates from the complaint of Toonen v. Australia from 19928 to the Committee where the Committee deemed the existence of anti-sodomy laws in the state of Tasmania as discriminatory. The Committee’s decisions are not legally binding, but politically persuasive recommendations. In this case, the state of Tasmania repealed its anti-sodomy laws a few years later in 1997. In contrast to decisions on complaints brought to the HRC, General Comments are documents where the Committee explains it interpretation of the provisions contained in the ICCPR. In 1990, the Committee published its General Comment No. 19, where it interprets Article 23 of the ICCPR on the protection of the family and the right to marry. The Committee refrains from giving a substantial definition of the family, relegating the task to States Parties and the meanings given to the concept in their national legal systems:
The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23. Consequently, States parties should report on how the concept and scope of the family is construed or defined in their own society and legal system. Where diverse concepts of the family, "nuclear" and
"extended", exist within a State, this should be indicated with an explanation of the degree of protection afforded to each. In view of the existence of various forms of family, such as unmarried couples and their children or single parents and their children, States parties should also indicate whether and to what extent such types of family and their members are recognized and protected by domestic law and practice.9
8Toonen v. Australia, Communication 488/1992, UN Document CCPR/C/50/D/488/1992.
9 United Nations Human Rights Committee (1990), para 2.
UN Human Rights Committee
What is essential here is the use of the principle of subsidiarity10: evaluation of what kind of relations and of which degree of proximity are deemed as family relations is handed to States, which resembles the doctrine of the margin of appreciation in the European Court of Human Rights (see Spano 2014).
Reluctance to producing a universal definition of family might seem toothless from the Human Rights Committee, but it shows the humility of the experts in question. Compared to the drafters of the Universal Declaration, they do not take such as strong stand on what the family might be. Thus, the Committee’s reluctance to provide a definition leaves space for new interpretations and the incorporation of a wider spectre of relations between people. When discussing the right to marry, the Committee does give a tentative definition of a couple:
“The right to found a family implies, in principle, the possibility to procreate and live together”11. The right to marry refers more to the possibility of contracting a marriage together with a partner of the opposite sex of one’s choice, without State interference. This provision becomes more concrete when thinking about racial and religious discrimination: the miscegenation laws banning inter-racial marriage in the United States prior to their dismantlement are a prime example. Obviously, there is always a certain degree of State intervention into the right to marry, primarily related to prohibited degrees of relationship, which vary from one State to another.
Due to the history of human rights or rather the lack of human rights in the context of vulnerable categories of people, it has been seen necessary by States within the United Nations system to create global human rights conventions that focus on the status of women (Convention on the Elimination of All Forms of Discrimination against Women CEDAW, 1979) and children (Convention on the Rights of the Child CRC, 1989), for example. Article 16(1) of CEDAW notes that women must be in an equal position to men in when it comes to marriage, divorce and the legal effects of marriage:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
10 Subsidiarity as a principle of international law, too, is linked to the philosophy of the Catholic Church and Catholic Social Teaching. See Carozza 2003.
11 United Nations Human Rights Committee (1990), para 5.
Concept of Family in International Human Rights Law
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
CEDAW, Article 16(1)
In essence, principles of the UDHR have been spelt out in more detail in 16(1) of CEDAW, like in ICCPR and ICESCR. However, the text of CEDAW departs further from the language of the two conventions mentioned above. It develops principles of gender equality in a way that goes further than the liberal tradition prevalent, for example, in the United States would allow, and thus the United States is one of the few countries in the world that has not ratified it. (United Nations Treaty Collection, CEDAW.) Furthermore, Article 5(a) of CEDAW is also contentious in tone for the conservatively inclined as it states the following as its aim:
To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
CEDAW, Article 5(2)
This formulation goes to show that the results of international drafting may also produce rather progressive and radical expressions of political will, developing the content given to human rights more than could be done by re-interpreting existing documents and treaties.
The definition of family or the lack thereof is unlikely to change in the committees interpreting human rights treaties of the United Nations.
However, notions of what family entails and how it is understood in modern-day global human rights advocacy can be seen, for instance, in the Beijing Declaration, the final document of the Fourth World Conference on Women in 1995, which pays only slight tribute to Catholic social doctrine evident in the UDHR:
Women play a critical role in the family. The family is the basic unit of society and as such should be strengthened. It is entitled to receive comprehensive protection and support. In different cultural, political and social systems, various forms of the family exist. The rights, capabilities and responsibilities of family members must be respected.
Beijing platform for Action, para 29
Family is named as “the basic unit of society”, but it is not spelt out who constitute a family. The Beijing document was, indeed, a ‘bitter fruit’ to many conservative and religious communities due to its progressive tone (Glendon 1995).
The Convention on the Rights of the Child (CRC) from 1989 is an important global human rights convention when it comes to the protection of family life, and the interpretation of key Articles is subject to fierce debates. The text of the Convention begins with a Preamble that still holds echoes of the Universal Declaration:
The States Parties to the present Convention… convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…
CRC, Preamble
Article 2 of the Convention on the Rights of the Child deals with the principle of non-discrimination:
(1) States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
(2) States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
CRC, Article 2
Together with Article 2 above, Article 5 gives space to a broader definition of family than the model of the nuclear family:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
CRC, Article 5
Concept of Family in International Human Rights Law
The expression ‘members of the extended family or community’ and the mention of ‘local custom’ give way to the variability of family forms, to which families formed by non-heterosexuals and trans persons can be argued to take part. So many States in Europe and beyond have legalised same-sex civil unions or same-sex marriage, so it could be seen as a recent “local custom” in many parts of the world.
In debates about the legitimacy and ethics of non-heterosexual parenthood, the first paragraph of Article 7 of the CRC has often been evoked as the legal basis for the child’s right to ‘have a mother and a father’:
The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.
CRC, Article 7
Articles 2 and 7 of the Convention are the ones that are usually cited when arguing for a particular view on the protection of family life, be it singularist or pluralist (see Chapter 1.1). Article 2(1) prohibits discrimination against the child and her/his parents “…irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. One of the most central and most cited Articles of the Convention is Article 7(1).
Both pluralists and singularists have deployed this Article to argue their viewpoints – pluralists for the recognition of, for example, parenting by same-sex couples (Walker 2001, Hodson 2011, 2012), singularists for the preservation of marriage and family as exclusively heterosexual institutions in the face of law (Glendon 2009, Adolphe 2006). The right to know one’s parents is often advocated as the right to know one’s origins, be it in the context of adoption or assisted reproduction with donated sperm or eggs. Article 7 is also often deployed to argue that a child must have two parents of the opposite sexes. Singularists argue that it is distorting and illogical to interpret that
‘parents’ could be of the same sex (see Adolphe 2006, Browning 2013) while pluralists stress that everything depends on how family in defined in a given legal context (see Walker 2001, Hodson 2012).
2.4 DISCUSSION: FROM NATURAL LAW TO LACK OF DEFINITION
The universal conception of the person… is displaced as a point of departure for a social theory of gender by those historical and anthropological positions that understand gender as a relation among socially constituted subjects in specifiable contexts. This relational or contextual point of view suggests that what the person “is”, and indeed, what gender “is”, is always relative to the constructed relations in which it is determined. As a shifting and contextual phenomenon,
gender does not denote a substantive being, but a relative point of convergence among culturally and historically specific sets of relations.
Judith Butler (1990: 15)
On the basis of the research done by Morsink (1999), Cere (2009) and Glendon (2010) it is evident that theformof the language of Article 16 in the Universal Declaration of Human Rights was inspired by Neo-Thomist philosophy and Catholic social teaching. However, as over sixty years have shown, those words have been understood in a variety of ways, which goes to show that the meaning of Article 16 is often taken to be something else than what that particular phrase or specific words in a certain order would indicate. If the language and style of 16(3) was taken from Catholic social teaching, does it mean that these Articles, or even the Universal Declaration as a whole, should be read as a set of ethical guidelines emanating from a specific philosophical and religious tradition? Or could it be that the Universal Declaration is a document inspired, among other traditions, by Neo-Thomism and Catholic social thought, but over time it has acquired a variety of other meanings according to the political projects of its readers, and that it is a malleable formulation to be applied according to the spirit of the day? My answer would be to favour the latter approach, but not to forget where the language has been cited from. Some might think that such an important document carrying such a strong legacy of a particular world view would be somehow discouraging for divergent ways of thinking and future political projects. However, such exegesis is helpful in taking a critical distance from any authoritative documents and seeing them as products of their time.
‘Family’ has usually been left intentionally undefined in international human rights documents – otherwise Articles dealing with the protection of families, family relations and family life could not be thought of as universally applicable. Actually, Article 16(3) of the Universal Declaration of Human Rights is quite exceptional, as it does offer some kind of a definition, even though it is a more open-ended version of what Malik, who has been identified as its main architect (Morsink 1999) would have preferred. However, the textual appearance of this Article as a linguistic formulation pays close resemblance to the language of Catholic social ethics as a comparison to Article 41.1.1 of the Constitution of the Republic of Ireland shows. Some might say that they are mere words in a certain order. However, the language deployed shows that in 1948, the States voting for the adoption of the Declaration saw it fit to deploy language similar to Catholic social doctrine, which is evident in other parts of the Declaration as well. Undoubtedly, Catholic social ethics is a mode of thought that captures many essential strains of thought of human rights thinking. However, when it comes to family as a gendered institution, the legacy of a particular current of religiously coloured philosophical thought
‘Family’ has usually been left intentionally undefined in international human rights documents – otherwise Articles dealing with the protection of families, family relations and family life could not be thought of as universally applicable. Actually, Article 16(3) of the Universal Declaration of Human Rights is quite exceptional, as it does offer some kind of a definition, even though it is a more open-ended version of what Malik, who has been identified as its main architect (Morsink 1999) would have preferred. However, the textual appearance of this Article as a linguistic formulation pays close resemblance to the language of Catholic social ethics as a comparison to Article 41.1.1 of the Constitution of the Republic of Ireland shows. Some might say that they are mere words in a certain order. However, the language deployed shows that in 1948, the States voting for the adoption of the Declaration saw it fit to deploy language similar to Catholic social doctrine, which is evident in other parts of the Declaration as well. Undoubtedly, Catholic social ethics is a mode of thought that captures many essential strains of thought of human rights thinking. However, when it comes to family as a gendered institution, the legacy of a particular current of religiously coloured philosophical thought