THE TREATY BODIES
The leading "treaty body" is the UN Human Rights Committee, established to monitor what countries are doing to implement the International Covenant on Civil and Political Rights. It is an "expert" body, not a "political" body. It has 16 members. It receives periodic reports from countries, and reviews those reports with country representatives in public sessions. It can also, in some situations, make decisions on specific cases.
The breakthrough in the treaty bodies came with the decision of the Human Rights Committee in 1994 in Toonen v Australia. The case challenged an old British-style anti-homosexual criminal law. In 1981 the European Court of Human Rights had struck down the same kind of law in the famous Dudgeon case involving the law in Northern Ireland. Decriminalization of homosexual acts had already begun in the West by that time. The old law had been repealed for England and Wales fourteen years earlier.
By the time of the Toonen case, anti-homosexual criminal laws were gone in all parts of Australia except the state of Tasmania. With legislative reform already in place in most of the West, the Human Rights Committee would have looked out of touch if it supported the old law. It ruled that the criminal provision was in conflict with the right of personal privacy set out in the Covenant. It also ruled that discrimination on the basis of sexual orientation was a form of discrimination on the basis of "sex." The criminal law was in breach of the Covenant for that reason as well.
Since 1994 the Human Rights Committee has regularly questioned countries on their laws and policies on sexual orientation discrimination. Other treaty bodies, including the Committee on the Elimination of Discrimination against Women, have also questioned governments on this basis.
The principle that discrimination on the basis of sexual orientation is a violation of the Covenant has been upheld in two subsequent cases decided by the Human Rights Committee, Young v Australia, and X v Colombia. These decisions hold that same-sex couples must be accorded equal rights to those granted to opposite sex couples. Both cases dealt with survivor pension rights.
THE SPECIAL PROCEDURES
The Human Rights Commission (now Council) established the special procedures back in the 1960s, initially concerned with racism and apartheid. Special rapporteurs (or special representatives or independent experts, terminology varies) are appointed to investigate specific issues and report to the Commission and the General Assembly. Some of the mandates are country specific, such as the mandate on human rights in North Korea. Most now are thematic, dealing with issues such as violence against women, extrajudicial executions or the right to health.
In 2001 the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions included in her report information on extrajudicial killings of members of sexual minorities. Some member States in the Human Rights Commission objected to this coverage and forced the deletion of language referring to such matters in the resolution renewing her mandate. But later in the year six thematic special rapporteurs indicated their willingness to receive and consider information on human rights violations against LGBTI individuals, when the violations came within their mandates. The High Commissioner for Human Rights, Mary Robinson, had organized this agreement among rapporteurs.
The motion to censure the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions in the Commission session the following year was defeated. The resolution granting the mandate has, since 2002, continued to authorize a concern with LGBTI cases. This was the first victory in a "political" body for LGBTI rights.
Other special rapporteurs have taken up LGBTI issues, most notably the Special Rapporteur on the Right to Health in his 2004 report.
THE TREATY BODIES
The leading "treaty body" is the UN Human Rights Committee, established to monitor what countries are doing to implement the International Covenant on Civil and Political Rights. It is an "expert" body, not a "political" body. It has 16 members. It receives periodic reports from countries, and reviews those reports with country representatives in public sessions. It can also, in some situations, make decisions on specific cases.
The breakthrough in the treaty bodies came with the decision of the Human Rights Committee in 1994 in Toonen v Australia. The case challenged an old British-style anti-homosexual criminal law. In 1981 the European Court of Human Rights had struck down the same kind of law in the famous Dudgeon case involving the law in Northern Ireland. Decriminalization of homosexual acts had already begun in the West by that time. The old law had been repealed for England and Wales fourteen years earlier.
By the time of the Toonen case, anti-homosexual criminal laws were gone in all parts of Australia except the state of Tasmania. With legislative reform already in place in most of the West, the Human Rights Committee would have looked out of touch if it supported the old law. It ruled that the criminal provision was in conflict with the right of personal privacy set out in the Covenant. It also ruled that discrimination on the basis of sexual orientation was a form of discrimination on the basis of "sex." The criminal law was in breach of the Covenant for that reason as well.
Since 1994 the Human Rights Committee has regularly questioned countries on their laws and policies on sexual orientation discrimination. Other treaty bodies, including the Committee on the Elimination of Discrimination against Women, have also questioned governments on this basis.
The principle that discrimination on the basis of sexual orientation is a violation of the Covenant has been upheld in two subsequent cases decided by the Human Rights Committee, Young v Australia, and X v Colombia. These decisions hold that same-sex couples must be accorded equal rights to those granted to opposite sex couples. Both cases dealt with survivor pension rights.
