INTERNATIONAL LEGAL PRINCIPLES RELATING TO SEXUAL ORIENTATION - SOME IMPLICATIONS FOR THE U.S.A. INTERNATIONAL BILL OF HUMAN RIGHTS The Universal Declaration of Human Rights, which was adopted and proclaimed by the General Assembly of the United Nations in 1948, sets out the principles which, together with the two International Covenants, form the International Bill of Human Rights. Many of the principles therein now arguably form part of customary international law. In addition, some states, including Canada, have ratified the Optional Protocol to the International Covenant on Civil and Political Rights. Article 2 of the Universal Declaration of Human Rights provides: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status... The phrase 'other status' also appears in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR). Article 2 of the latter Covenant provides: Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Where not already provided for by existing legislation or other measure, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with other provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Article 26 of the Covenant provides: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protective 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. THE HUMAN RIGHTS COMMITTEE The Human Rights Committee is established by the ICCPR. The Committee reviews periodic reports submitted by States Parties to the Covenant in accordance with Article 40. The Human Rights Committee thus has competency to consider allegations of discrimination in any grounds, including the ground of sexual orientation, in relation to the rights provided in the Covenant. On occasion the Committee raises the issue of discrimination on the ground of sexual orientation when considering States PartiesU periodic reports, however the Committee has no systematic policy in this regard. Non-governmental organizations can bring specific issues to the attention of the Human Rights Committee when it considers these reports. In 1993 the International Lesbian and Gay Association, an international non-governmental organization representing the interests of lesbians and gay men everywhere, was granted consultative status with the Economic and Social Council of the United Nations. COMMUNICATIONS REGARDING SEXUAL ORIENTATION UNDER THE OPTIONAL PROTOCOL Where a State has ratified the Optional Protocol to the ICCPR, the Human Rights Committee may receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. The Committee has received such communications alleging discrimination on the ground of sexual orientation or preference. The Committee is currently considering a complaint by an Australian man that the laws criminalizing homosexual behaviour in the Australian state of Tasmania violate his rights under the Covenant. The communication has been ruled admissible, however a decision on the merits is not expected until early 1994. Nonetheless, the fact that the Committee has ruled the communication as admissible is in itself significant, whatever the eventual finding on the merits of the complaint. It would thus appear that sexual orientation is a prohibited ground of discrimination in the International Bill of Human Rights, and in particular under the two Covenants. There is also jurisprudence from the European Court of Human Rights to the effect that criminal laws prohibiting some homosexual acts violate the European Convention of Human Rights. This is a further indication of the development of international law in this area. IMPLICATIONS FOR THE U.S.A. The United States of America has ratified the ICCPR, but not the Optional Protocol thereto nor the International Covenant on Economic, Social and Cultural Rights. Sodomy laws still exist in about half the States of the U.S.A. The U.S.A. filed its first report due under the ICCPR in September 1993. It would be interesting to see if any mention was made of such statutes in this report, and how the U.S.A. views its international obligations when they impact on State as opposed to Federal jurisdiction. In any case, if and when the Human Rights Committee finds in favour of the complainant in the Australian case noted above, it will be even clearer that the U.S.A. is in breach of its international obligations under the Covenant. The time for another concerted lobbying campaign looks good for summer 1994. The Human Rights Committee decision should be out, the Gay Games will be held in New York, along with the Annual World Conference of the International Lesbian and Gay Association (ILGA) from June 25-July 3. ILGA is planning a march on the United Nations to highlight discrimination against gay men and lesbians around the world on June 26. David Patterson 12 November 1993