Latest Case Law Trends: the International Covenant on Civil and Political Rights

By Sarah Joseph

The case law of the UN Human Rights Committee (HRC), which oversees the International Covenant on Civil and Political Rights  (ICCPR) and hears individual complaints under the ICCPR’s first Optional Protocol, is always varied and dependent upon the cases submitted to it. Nevertheless, trends can be identified. Its earliest case law was dominated by allegations of gross violations against Uruguay’s (then) military government (see, eg, this case). The late 1980s and 1990s was the era of Caribbean cases concerning allegedly unfair trials in capital cases and atrocious prison conditions. These cases ceased when the relevant States sadly withdrew from the Optional Protocol. The last twenty years has seen many cases against the Czech Republic concerning nationality discrimination in its restitution laws. These cases are fading out, as many are now dismissed on the basis that the author has taken an unreasonably long time to bring the complaint to the HRC (see, eg, M.B. v Czech Republic (1849/08)).

Most recently, there is a tragic abundance of disappearance cases from Algeria and Libya. These cases concern events that predate the Arab Spring and the overthrow of Colonel Gaddafi (which is not to say that future cases won’t concern events in the aftermath). The Algerian cases also concern that State’s impunity statute, and reinforce the HRC’s disdain for amnesty provisions in respect of gross human rights abuses.

Another current theme is a wave of cases concerning unreasonable restrictions on freedoms of expression and assembly in former Soviet States, such as Russia and Belarus. For example, Russia’s law outlawing “homosexual propaganda” was found to breach Article 19 (freedom of expression) of the ICCPR in conjunction with Article 26 (non-discrimination) in Fedotova v Russian Federation (1932/10). Given Russia’s continuing persecution of LGBTI people, one can expect more cases of this kind.

France has faced a number of cases regarding laws which restrict the wearing of religious clothing, for example, in Singh v France (1876/09), Singh v France (1852/08), and Singh v France (1928/10) (the authors in each of these French cases were different). France’s measures have been found to breach both Article 18 (freedom of religion) and the guarantee of non-discrimination in Article 26. It can expect such challenges to multiply unless it amends these laws.

Finally, the HRC has maintained its stand against the arbitrary application of State immigration laws. The proposed deportation by Sweden of a lesbian to Bangladesh, where persecution of sexual minorities is rife, was deemed to be a breach of Article 7 (freedom from torture and other ill treatment), if implemented, in M.I. v Sweden (2149/12). Canada too was found to be proposing a deportation (to Sri Lanka) in breach of the implicit non-refoulement obligation in Article 7 in Thuraisamy v Canada (1912/09).  The indefinite detention by Australia of refugees deemed to be security risks was found to breach both Article 7 and Article 9 (freedoms from arbitrary detention) in M.M.M. et al v Australia (2136/12) and F.K.A.G. v Australia (2094/11).

The issue of LGBTI rights has therefore come up in a number of contexts.  It is only a matter of time before the topic of same sex marriage returns to the HRC. The issue arose in Joslin v New Zealand (902/99) over a decade ago, where a lack of provision for same sex marriage under the NZ Marriage Act was found not to breach the ICCPR. At some point I expect a global tipping point to be reached, where the HRC will decide a similar case differently.

This article was originally published by the International Service for Human Rights on 9 October, in advance of a book launch on October 16 at the Office of the High Commissioner for Human Rights in Geneva for the author’s co-authored book, The International Covenant on Civil and Political Rights: Cases Commentary and Materials (OUP, 3rd ed, 2013).

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