Defending Human Rights: A Resource Book for Human

Legal Protection
The Human Rights Committee of the United Nations
in 1994 ruled in the case Toonen v. Australia
that a statute of the Australian state of Tasmania
prohibiting sexual contact between consenting
adult men in private was a violation of fundamental
human rights.
It declared that the provisions in Article 2(1) of the
International Convention on Civic and Political Rights
1966 (ICCPR) on non-discrimination on basis of “sex”
are to include an individual’s sexual orientation. 46
Article 2(1)of the ICCPR:
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 or other status.
This in effect means that no one is to be
discriminated against on basis of his or her
sexual orientation. Since then, the Human Rights
Committee has repeatedly expressed concern over
laws outlawing homosexual acts that are understood
as contravening the provisions of the ICCPR.
Article 26 of the ICCPR furthermore accords equal
protection of the law to anyone without any
discrimination, which further obliges authorities to
protect LGBT individuals from any harm, and remove
discriminatory legislation that allows for differential
treatment on basis of one’s sexual orientation.
Article 26 of the ICCPR:
The provisions of the African Charter on Human and
Peoples’ Rights 1986 guarantees:
Every individual shall be entitled to the
enjoyment of the rights and freedoms
recognized and guaranteed in the present
Charter without distinction of any kind such
as race, ethnic group, color, sex, language,
religion, political or an other opinion, national
and social origin, fortune, birth or any other
status. 47
In light of Article 60 48 of the Charter that allows
for an inspiration from provisions of international
human rights law, and instruments adopted within
the United Nations, this means that its decisions
should be guided by jurisprudence decided in similar
human rights bodies.
In 2006, the Yogyakarta Principles 49 were
established, as an interpretive guide of the
application of international human rights law
to sexual orientation and gender identity. It
encompasses existing international human rights
law, and applies it to sexual orientation and gender
identity. For example, Principle 6 on the right to
privacy reads:
Everyone, regardless of sexual orientation or
gender identity, is entitled to the enjoyment
of privacy without arbitrary or unlawful
interference, including with regard to their
family, home or correspondence as well as
to protection from unlawful attacks on their
honour and reputation. The right to privacy
ordinarily includes the choice to disclose or
not to disclose information relating to one’s
sexual orientation or gender identity, as well as
decisions and choices regarding both one’s own
body and consensual sexual and other relations
with others. 50
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
protection 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.
46 With reference to the case Toonen vs. Australia, Communication
No. 488/1992, UN Doc CCPR/C/50/D/488/1992, 4
April 1994.
47 Article 1 of the African Charter on Human and Peoples’
Rights 1986
48 “The Commission shall draw inspiration from international
law on human and peoples’ rights, particularly from the
provisions of various African instruments on human and
peoples’ rights, the Charter of the United Nations, the
Charter of the Organization of African Unity, the Universal
Declaration of Human Rights, other instruments adopted
by the United Nations and by African countries in the field
of human and peoples’ rights as well as from the provisions
of various instruments adopted within the Specialized
Agencies of the United Nations of which the parties to the
present Charter are members.”
49 Available at http://www.yogyakartaprinciples.org/
50 Principle 6: http://www.yogyakartaprinciples.org/principles_en.htm
Defending Human Rights: A Resource Book for Human Rights Defenders | 2nd Edition 41