International Administrative Tribunals and Their Non-Originalist Jurisprudence on Same-Sex Couples: ‘Spouse’ and ‘Marriage’ in Context, Between Social Changes and the Doctrine of Renvoi

The heterogeneous membership of international organizations—i.e. the existence of cultural, social and legal differences among member states—entails that, unlike what happens in the EU system, where the CJEU relies on an autonomous notion of ‘family’ in the interpretation of Staff Regulations and Staff Rules, international administrative tribunals generally base their decisions on the ‘renvoi’ to the lex patriae of the staff member. As a result, a gay or lesbian staff member may be entitled to spousal rights for his/her partner only if his/her home country allows same-sex marriage or a certain kind of recognized same-sex civil partnership granting social benefits equivalent to those accorded by marriage. Moreover, in interpreting the term ‘spouse’, both the UN Administrative Tribunal and ILO Administrative Tribunal rely on a dynamic, systematic and teleological interpretation of the law, rather than a static, formal-constructivist and originalist approach.