Same-sex marriage from a human rights perspective

HANOI NATIONAL UNIVERSITY FACULTY OF LAW

BUI THI PHUONG THAO

GAY MARRIAGE FROM A HUMAN RIGHTS PERSPECTIVE

UNIVERSITY THESIS

FIELD : LAW

Training system: Full-time Course: QH-2015-L

HANOI NATIONAL UNIVERSITY FACULTY OF LAW

BUI THI PHUONG THAO

GAY MARRIAGE FROM A HUMAN RIGHTS PERSPECTIVE

UNIVERSITY THESIS: MASTER: LAW

Training system: Full-time Course: QH-2015-L

INSTRUCTOR: DR. LA KHANH TUNG

COMMITMENT

I hereby declare that this Thesis is my own research. The data and quotations in this Thesis are guaranteed to be accurate, reliable and honest. If there is any dishonesty in this research, I will take full responsibility.

Student

Bui Thi Phuong Thao

ACKNOWLEDGEMENTS

First of all, I would like to express my sincere thanks to lecturer Dr. La Khanh Tung - who has wholeheartedly guided and supported me throughout the research process to complete this Graduation Thesis.

I would like to sincerely thank the teachers in the Faculty of Law - Hanoi National University and students who have helped me during my studies and the process of completing this thesis.

Due to lack of experience and limited research level, this graduation thesis inevitably has shortcomings. I look forward to receiving comments from teachers and students to improve the thesis, helping me gain valuable experience in future research.

Thank you very much!

Hanoi, April 26, 2019

Student

Bui Thi Phuong Thao

Additional Cover Page Acknowledgements Commitment Table of Contents

List of abbreviations

INDEX

Page

INTRODUCTION 1

1. Problem statement 1

2. Research status of topic 2

3. Research purpose of topic 3

4. Research method of topic 3

5. Thesis 4 layout

Chapter 1: SOME THEORETICAL ISSUES ON HUMAN RIGHTS AND SAME-SEX MARRIAGE. 5

1.1 Concept of human rights 5

1.2 The development of human rights 6

1.3 The right to marriage in international human rights law 11

1.4 Homosexuals and Homosexual Rights 13

1.4.1 The concept of homosexuality 13

1.4.2 Gay Rights 15

1.4.2.1 Theoretical basis for homosexual rights 15

1.4.2.2 Documents that form the basis for the recognition of homosexual rights internationally 20

1.4.3 Same-sex marriage 23

Summary 1: 27

Chapter 2: THE CURRENT STATE OF HOMOSEXUAL MARRIAGE IN THE WORLD AND IN VIETNAM 27

2.1 Factors affecting the recognition of same-sex marriage rights 27

2.1.1 Psychological and social factors 27

2.1.2 Religious factors 30

2.1.3 Political factors 34

2.2 The issue of recognizing same-sex marriage rights in countries around the world and Vietnam 38

2.2.1 Legal regulations of some countries have recognized the right to marriage of homosexuals 38

2.2.2 Legal regulations of some countries do not recognize same-sex marriage 43

2.2.3 Legal regulations of Vietnam 46

2.3 Difficulties in recognizing same-sex marriage rights 48

Summary 2: 52

Chapter 3: SOME RECOMMENDATIONS TO PROTECT THE RIGHT TO GAY MARRIAGE IN VIETNAM 53

3.1 Consequences when the law does not recognize same-sex marriage 53

3.2 Some recommendations for Vietnamese legal regulations on same-sex marriage 57

CONCLUSION 59

Reference 60

LIST OF ABBREVIATIONS

STT

Acronym

Terminology

English

LGBT

Lesbian, gay

male, bisexual, transgender

Lesbian, Gay, Bisexual,

Transgender

APA

American Psychological Association

AmericanPsychological

Association

UDHR

Universal Declaration of Human Rights

right

Universal Declaration of

Human Rights

ICCPR

International Convention on the

Civil and Political Rights

International Covenant on

Civil and Political Rights

ICESCR

International Convention on the

Economic, Social and Cultural Rights

International Covenant on

Economic, Social and Cultural Rights

HRC

Human Rights Council of

United Nations

The United Nations'

Human Rights Council

BLDS

Civil Code 2015

iSEE

Institute of Social Research,

Economy and Environment

Law

HN&GĐ

Law on Marriage and Family

2014

Socialism

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INTRODUCTION

1. Problem statement

The existence of homosexuals in society is a fact and cannot be denied. However, many of them have to live in a shell to avoid discrimination and alienation from those around them. Although homosexuals are an integral part of human society, in many places in the world they are still victims of abusive behavior. In the past, homosexuality was even considered a mental illness that was formed simultaneously in both pathological and psychological aspects. Many people also believe that homosexuality is a deviant development, deviant in both morality and lifestyle, contrary to the traditional customs of the Vietnamese people. In recent years, many people have not hesitated to publicly declare themselves homosexual. Many movements demanding equal rights and the right to marry for homosexuals have appeared in many countries around the world. Therefore, it is no longer strange for two homosexuals to live together as husband and wife. For many years, this issue has been of constant concern with two opposing views on whether or not to recognize the marriage of same-sex couples.

In the world, many countries have recognized same-sex marriage such as: The Netherlands (2001) was the first country to recognize same-sex marriage, Belgium (2003), Norway (2008), Denmark (2012), New Zealand (2013), the US (2015) ... and most recently Australia (December 2017). Vietnam has not recognized same-sex marriage. Article 10 of the 2000 Law on Marriage and Family stipulates: "Marriage between people of the same sex is prohibited" . After the promulgation of the 2014 Law on Marriage and Family, there was a new provision: " The State does not recognize marriage between people of the same sex " (Clause 2, Article 8). Although this provision is somewhat more progressive and has changed the thinking about same-sex marriage, legally, the rights and obligations of

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