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State parties determine equal rights in UN Covenant

A fine line exists between the advocacy of a cause and using one’s legal knowledge in aid of such a cause. The letter “UN Covenant recognises equal rights of all” (Oct 14, online) is an example.

A fine line exists between the advocacy of a cause and using one’s legal knowledge in aid of such a cause. The letter “UN Covenant recognises equal rights of all” (Oct 14, online) is an example.

I make two points in response. First, the writers are right to argue that sexual orientation must be a basis for human rights protection.

They also said that the words “men and women” in Article 23(2) of the International Covenant on Civil and Political Rights, which was signed in 1966, “was not intended to exclude same-sex couples”. This is a bold claim.

It was only in 1965 that the United States Supreme Court ruled in Griswold v Connecticut that married couples have a penumbral right of privacy in the US Constitution.

It took nearly 40 years before the same court decided in Lawrence v Texas (2003) that this constitutional right of privacy applied to homosexuals.

It is no coincidence that the advocacy of marriage equality, as a proposition for national and international law, was energised from the 2000s.

Second, the writers appear to endorse the United Nations Human Rights Committee’s position that the Covenant is a “living instrument”. Its application, therefore, is subject to “context and in the light of present-day conditions”.

That might be the Committee’s sincere view. It could also be the legitimate view of a reasonable person. But statements by the Committee are not legally binding.

Under Article 40(4), the Committee makes only general comments. It engages in a dialogue with state parties who submit reports on their protection of human rights. States are the final arbiters of the Covenant.

We are now involved in a Kulturkampf of our time. But we are fortunate that both sides have some space to debate this issue. The law also has some role to play in shaping the outcome.

Those who can purvey the law are obliged to explain it as clearly as possible. We must do so even when the legal conclusion militates against our advocacy.

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