Presentation Transcript

1. The UN Human Rights Committee and LGBT Rights: What is it doing? What could it be doing?

   Assoc. Professor Paula Gerber Deputy Director Castan Centre for Human Rights Law
2. The UN Human Rights Committee and LGBT Rights
3. The UN Human Rights Committee and LGBT Rights
4. There are 78 countries which continue to criminalise same-sex sexual behaviour. Legacy of the British Empire? – 42 of these countries are part of the 54 member Commonwealth of Nations. Homosexual conduct is punishable by death in 5 of these countries. The UN Human Rights Committee and LGBT Rights
5. Application of these Laws December 2012, a Cameroon appellate court upheld a 3 year jail sentence imposed on Jean-Claude Roger Mbede, for ‘homosexuality’ on the basis of a text message he sent to another man. In May 2010, in Malawi, a judge imposed the maximum sentence of 14 years imprisonment with hard labour on a gay couple convicted of gross indecency and unnatural acts, after holding an engagement ceremony.
6. What is HR Committee doing to Protect and Promote LGBT Rights? Concluding Observations following Periodic Reports & Review; General Comments; and Decisions on Individual Complaints The UN Human Rights Committee and LGBT Rights
7. Why consider Concluding Observations? Concluding Observations ‘have been elevated to be the primary record of the findings and recommendations regarding each State Party under review [and] they constitute important interpretative tools for the respective treaties’. Nevertheless, it has been observed that ‘considerable scope remains for the enhancement of concluding observations and follow-up procedures’. [Prof. Michael O’Flaherty] The UN Human Rights Committee and LGBT Rights
8. Concluding Observations My research examines 10 years of HR Committee’s Concluding Observations – from 2003 - 2013. 136 States reviewed. 45 Concluding Observations mentioned LGBT rights. This amounts to LGBT rights being commented on in 33.1% of states reviewed. The UN Human Rights Committee and LGBT Rights
9. Concluding Observations cont. Comments tended to fall into 2 categories: Anti-discrimination measures: failure to prohibit employment-related discrimination; failure to include the category of sexual orientation in broad anti-discrimination legal regimes; inadequate institutional response to discriminatory attitudes and violence; and unequal ages of consent for sexual activity; and Decriminalisation of homosexual activity. The UN Human Rights Committee and LGBT Rights
10. Quantitative Analysis In the decade examined, HR Committee increased its comments relating to LGBT issues: In 2004, it reviewed 15 State Parties, but only made 4 comments on LGBT issues. In 2013, it also reviewed 15 State Parties’ reports, but this time it made 12 observations on LGBT issues. The UN Human Rights Committee and LGBT Rights
11. Qualitative Analysis Where a State was reviewed twice in the 10 year period, there was a marked difference in comments: Philippines in 2003: ‘the State party to take the necessary steps to adopt legislation explicitly prohibiting discrimination … related to sexual orientation’. Philippines in 2012: reference to the ‘AngLadlad case’, a ‘statement of the delegation that it will take up a leadership role to promote [LGBT] rights’, ‘the “grave scandal” provision provided under article 200 of the Revised Penal Code’ and the ‘comprehensive anti-discrimination bill that prohibits discrimination on grounds of sexual orientation and gender identity’. The UN Human Rights Committee and LGBT Rights
12. 1. More In-depth Comments Later Concluding Observations are significantly more detailed, focused and contain actionable comments. The more nuanced and comprehensive the comments of the Committee the more likely it is that the State Party will be able to respond and report back to the Committee at the next reporting cycle. The UN Human Rights Committee and LGBT Rights
13. 2. Changes in use of identity terms Before 2009, the dominant terminology for referring to LGBT persons was “sexual orientation”. In October 2009, the Committee when reviewing Russia, used the term ‘LGBT’ for the first time. Since then, the use of the term ‘LGBT’ has become ubiquitous. The UN Human Rights Committee and LGBT Rights
14. Changes in use of identity terms cont. Around the same time, the Committee also began using the phrase ‘gender identity and activity’. In 2 instances in 2012, Committee mentioned ‘intersex’ persons (in relation to Kenya and Guatemala) and in one of those instances also used the more expansive acronym, LGBTI (the ‘I’ denoting intersex) (in relation to Kenya). The UN Human Rights Committee and LGBT Rights
15. Changes in use of identity terms cont. Committee’s use of the terms ‘LGBT’, ‘LGBTI’, ‘gender identity’ and ‘intersex’ signals a greater sensitivity to the diversity of sexuality, because as compared with “sexual orientation”, LGBT specifically encompasses four distinct segments of the homosexual population. BUT the Committee has used the umbrella term ‘LGBT’ inappropriately on several occasions. E.g. when expressing concern about transsexual women being placed in rehabilitation centres to undergo ‘sexual reorientation treatments’. This demonstrates a misunderstanding of the nature of transsexuality to refer to ‘sexual orientation’ rather than gender identity. The UN Human Rights Committee and LGBT Rights
16. 3. Failure to comment on the decriminalisation of same-sex sexual activity Over the decade 2003-2013, 13 Concluding Observations condemned a State for its criminalisation of same-sex sexual activity. However, 31 States that were reviewed had criminal laws relating to same-sex sexual. Thus, only 41% were commented on by the HR Committee The UN Human Rights Committee and LGBT Rights
17. Inconsistency in Comments In 2011, the in relation to Togo it was noted that ‘the Committee remains concerned about the criminalization of sexual relations between consenting adults of the same sex, punishable by 1 to 3 years imprisonment and a fine’. In 2011, in relation to Seychelles, where same-sex sexual activity is also criminal and punishable by 14 years imprisonment, No comment was made. The UN Human Rights Committee and LGBT Rights
18. Explanation? The UN Human Rights Committee and LGBT Rights
19. 4. Lack of specificity and actionable recommendations Treaty committees should give targeted, specific, measurable, achievable and time-bound recommendations. HR Committee often made observations regarding LGBT issues that were general, vague and offered little guidance to the State Party. E.g. it made recommendations that State Parties: ‘provide effective protection of LGBT persons’ (Dominican Republic); & ‘launch a campaign’ (Guatemala). The UN Human Rights Committee and LGBT Rights
20. Use of Generic Statements Committee also tends to repeat the same generic statement ad nauseum, which demonstrates a lack of deeper examination of the causes of and solutions to the infringement LGBT rights. By using simple generic comments, with no consideration to the different circumstances of the State Parties, and the ways in which a State Party might implement a campaign to fight discrimination, the Committee wastes the opportunity to make constructive, actionable recommendations. The UN Human Rights Committee and LGBT Rights
21. Positive Aspects of HR Committee’s Concluding Observations Increased number of references to LGBT rights. Increased depth and detail in the observations. Greater use of LGBT-precise language. The UN Human Rights Committee and LGBT Rights
22. Negative Aspects of HR Committee’s Concluding Observations HR Committee’s Concluding Observations fail to consistently address, in a systematic manner, the most flagrant violation of LGBT rights, i.e. the continued criminalisation of homosexuality in numerous states around the world. Committee needs to adopt a more comprehensive and nuanced treatment of breaches of the rights of LGBT persons. The UN Human Rights Committee and LGBT Rights
23. General Comments HR Committee states that General Comments represent ‘its interpretation of the content of human rights provisions’ and are focused on ‘thematic issues or methods of work’. Otto says General Comments are ‘quasi-judicial’ and carry ‘enormous political and moral weight’. Thomas Buergenthal (former ICJ judge) says General Comments enable treaty bodies to analyse and pronounce on difficult issues of interpretation in a form similar to the highly influential advisory opinions of international tribunals. The UN Human Rights Committee and LGBT Rights
24. General Comments Collectively, UN treaty committees have published over 100 General Comments. HR Committee has been the most prolific: 34 (cf Committee on ESC Rights: 21). BUT, how many of the HR Committee’s 34 General Comments have addressed LGBT rights? The UN Human Rights Committee and LGBT Rights
25. Answer: The UN Human Rights Committee and LGBT Rights
26. HR Committee does not compare favourably to other treaty Committees Presentation title
27. Missed Opportunities General Comment 18 (1989) – Discrimination under Articles 2 & 26. General Comment 28 (2001) – Equality of rights between men and women. General Comment 31 (2004) – The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. The UN Human Rights Committee and LGBT Rights 26th July 2013 27
28. But wait... Draft General Comment 35 32 years of silence … and then in 2012, Draft GC 35. Focused on Article 9 (liberty and security of person). It provides that: “The right to “security of person” in article 9 ... obliges States parties to take appropriate measures to protect individuals, whether detained or non-detained, from known threats to life or bodily integrity proceeding from either governmental or private sources. States parties must respond appropriately to patterns of violence against categories of victims such as … violence against sexual minorities.” [Emphasis added]. The UN Human Rights Committee and LGBT Rights
29. Draft General Comment 35 The approach appears to be to situate sexuality within a more comprehensive human rights framework and to explore commonalities between disparate struggles. This is consistent with the strategy which Ignacio Saiz has proffered as an explanation for the significant penetration of LGBT issues at the European Union which is much greater than within the UN. Committee will resume its discussion of this draft GC at its next session. It has an open timetable for the finalisation of the Comment. The UN Human Rights Committee and LGBT Rights
30. Conclusion re General Comments Lots of room for improvement: Committee needs to make a concerted effort to include LGBT persons where relevant in future General Comments; and/or Draft a General Comment that focuses specifically on the application of ICCPR to protecting the rights of sexual minorities The UN Human Rights Committee and LGBT Rights
31. Decisions on Individual Complaints There have been 5 HR Committee decisions relating to complaints of discrimination by sexual minorities, namely: Toonen v Australia (1994) Young v Australia (2000) Joslin v New Zealand (2002) X v Colombia (2005) Fedotova v Russian Federation (2012) The UN Human Rights Committee and LGBT Rights
32. Toonen v Australia (1994) Nick Toonen, a gay activist, challenged two provisions of the Tasmanian Criminal Code which criminalised all forms of sexual contact between consenting adult men in private. Although there had been no prosecutions or investigations under the relevant Sections since 1984, the risk of prosecution or investigation remained. In a landmark decision, HR Committee ruled: Tasmania’s criminal laws breached Art 17 (“No one shall be subjected to arbitrary or unlawful interference with his privacy”) and “the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation”. The UN Human Rights Committee and LGBT Rights
33. Toonen v Australia cont. Joseph, Schultz & Castan note that: “the HRC was clearly influenced by the fact that all other Australian states had repealed such laws, and that there was ‘no consensus’ regarding the appropriateness of the laws in Tasmania This decision indicated that the ICCPR could potentially be interpreted in a relativist manner — perhaps similar laws in a different State with no comparable record of tolerance and acceptance of homosexuality would survive a similar challenge.” BUT they also note that “since the Toonen decision in 1994 , the HRC has clearly exhibited disapproval of culturally relativist arguments.” Presentation title
34. Young v Australia (2003) Edward Young was in a same-sex relationship with a Mr. C for 38 years.  He brought a complaint against Australia to the HR Committee, alleging that the Government’s decision to deny him a veteran’s pension was a breach of Art 26 of the ICCPR. S13 of the Veteran's Entitlement Act limitedveterans pensions to opposite-sex couples. The UN Human Rights Committee and LGBT Rights
35. Young v Australia cont. HR Committee, citing with approval the decision in Toonen, found that Mr Young had been discriminated against under Article 26 of the ICCPR and was entitled to an effective remedy, including the reconsideration of his pension. This decision affirms that Article 26 applies to discrimination based on sexual orientation. Presentation title
36. X v Columbia (2005) X’s same-sex partner of 22 years died, and he applied to have his partner’s pension transferred to him. Colombia law did not allow for the transfer of pensions to same-sex partners. Columbia argued that the measures were designed to protect heterosexual couples including married and de facto couples, and were not meant to harm homosexual couples. HR Committee found there was no valid basis for differentiating between heterosexual couples and same-sex couples, and accordingly found that “the State party has violated article 26 of the Covenant by denying the author’s right to his life partner’s pension on the basis of his sexual orientation.” The UN Human Rights Committee and LGBT Rights
37. Joslin v New Zealand (2002) 2 lesbian couples claimed the NZ Marriage Act, by precluding same-sex couples from marrying violated the following provisions of the ICCPR: Art. 23 (right to marry) read in conjunction with Art 2 (non-discrimination); Art 16 (recognition as a person before the law); Art 17 (privacy); and Art 26 (non-discrimination). The UN Human Rights Committee and LGBT Rights
38. Joslin v New Zealandcont. The HRC did not consider Art 26 on the basis that the specific rule in Art 23 overruled the other more general rules. It is likely that the HRC would have struggled to justify an argument that New Zealand’s Marriage Act is not discriminatory, if it had specifically considered the Article 26 claim. Presentation title
39. Joslin a Product of its Time? In 2002, only one country had legalised same-sex marriage (Netherlands in 2001). Perhaps the case was brought prematurely? Today, 15 countries have marriage equality, including New Zealand! With changing societal attitudes to same-sex marriage and homosexuality in general, it is likely that Article 23 will, over time, come to be interpreted through the lens of Articles 2 & 26.
40. Fedotova v Russian Federation (2012) Irina Fedotova displayed posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school, in order to promote tolerance towards gay and lesbian individuals in the Russian Federation. She was convicted under laws that criminalise “propaganda of homosexuality (sexual act between men or lesbianism) among minors” and fined 1,500 Russian roubles. Fedotova argued that the conviction was a breach of her right to freedom of expression under Article 19 of the ICCPR. The UN Human Rights Committee and LGBT Rights
41. Fedotovacont. Committee noted that the law criminalised ““public actions aimed at propaganda of homosexuality (sexual act between men or lesbianism)” – as opposed to propaganda of heterosexuality or sexuality generally – among minors. With reference to its earlier jurisprudence, the Committee recalls that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation.” [citing Toonen v. Australia, Young v. Australia, and X. v. Colombia]. Committee found that the law “amounted to a violation of her rights under article 19, paragraph 2, read in conjunction with article 26 of the Covenant” and the State Party had failed to demonstrate that it was necessary for one of the legitimate purposes of Article 19(3). Presentation title
42. Conclusion re Individual Communications Scorecard on individual communications by sexual minorities – 4:1. Given the largely positive decisions from the HR Committee on individual communications by sexual minorities alleging breaches of ICCPR, civil society would be well advised to support LGBT persons bringing complaints of discrimination to this treaty committee. The UN Human Rights Committee and LGBT Rights
43. Report card on the HR Committee’s efforts regarding LGBT persons: The UN Human Rights Committee and LGBT Rights