Stephen Vasciannie
LAST THURSDAY, Counter-point, the discussion programme with Dr. Damien King and Diana McCaulay, considered the question of homophobia. The guests were Professor Carolyn Cooper and a lawyer from Human Rights Watch, an active, international non-governmental organisation. Today's column is about whether "homophobia" is an appropriate term for the social phenomenon that Counterpoint sought to probe.
Rather, it is about one point made by the Human Rights Watch representative. The representative maintained that Jamaica is in breach of international law because the Government has not abolished the crime of buggery. To support this contention, the representative suggested that Jamaica was in breach of a treaty requiring the acceptance in this country of the right to homosexual sex.
This part of the representative's argument stood uncontested for a while. It seemed to have been played as a kind of trump card: Jamaica is so hostile to homosexuals the country is prepared to violate international law to suit its ends. That was enough: I called Counterpoint and simply said, "Jamaica is a party to no treaty that requires the Government to recognise the legality of homosexual sex", or words to that effect.
This statement was put to the Human Rights representative, and she refuted it in no uncertain terms. Jamaica, she noted correctly, is a party to the International Covenant on Civil and Political Rights; and this treaty holds that countries must recognise the right of homosexual sex, she noted incorrectly.
To support her perspective, the representative expressly mentioned the Toonen Case, in which the United Nations Human Rights Committee found that a Tasmanian law prohibiting homosexual sex was in breach of Article 17 of the International Covenant on Civil and Political Rights. Article 17 reads in relevant part: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."
PRIVACY RECOMMENDATION
I take it, therefore, that the Human Rights Watch representative was arguing that the International Covenant on Civil and Political Rights recognises the right to privacy, and the Human Rights Committee has said that homosexual rights are part of the right to privacy: therefore, Jamaica is in breach of the Covenant, and in breach of international law.
This is misleading advocacy. First, the United Nations Human Rights Committee is not a court of law. When it considers cases, it makes recommendations to countries; these recommendations are not binding in the way that the decision of a court is binding in law. In fact, for cases including the Toonen Case, the Human Rights Committee is mandated only to "put forward its views to the State Party concerned and to the individual" (First Optional Protocol to the International Covenant on Civil and Political Rights, Article 5(4)). Putting forward views is hardly the language of binding commitment.
States - including Jamaica - have never accepted that views put forward by the Human Rights Committee amount to law. So, the Human Rights Watch representative is simply wrong when she implies that the Toonen Case creates a binding obligation on Jamaica in International Law.
VULNERABLE
Second, if we assume - incorrectly - that the Human Rights Committee could actually make law, the approach taken in the Toonen Case would still be vulnerable as a statement of the law. In summary form, international law is identified by reference to treaties, custom and general principles of law recognised by 'civilised' nations. There is no treaty that expressly states that homosexual sex must be regarded as lawful. Custom, as evidenced by the general practice of countries, does not support the right to this activity: for countries leave each other to determine what their local laws will be on the subject. And, there has never been a general principle accepted by countries as applicable to the issue.
Thus, the application of orthodox principles of international law suggests that the Human Rights Committee could not have reasonably reached the conclusion that there is an international law right to homosexual activity.
Finally, I think that the Human Rights Watch representative has confused herself by mixing up what she wants international law to say with what international law actually says. No treaty requires Jamaica to recognise homosexual sex as lawful. She wants a different conclusion, so she relies on the recommendation of the Human Rights Committee as if recommendations are binding law. They are not.
Stephen Vasciannie is a professor at the University of the West Indies and a Deputy Solicitor General.
