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article 26 cannot be invoked in support of claiming a hereditary title of nobility, an institution that, due to its indivisible and exclusive nature, lies outside the underlying values behind the principles of equality before the law and non-discrimination protected by article 26.81 3 The Formal Principle of Equality (a) Relationship Between Art 26 and Arts 17 and 23 Rather than taking a value-driven approach, we can, less controversially, understand art 26 as enshrining what has been called the ‘formal principle of 79 ‘[E]quality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women’: UN Human Rights Committee, General Comment No 12: Article 3 (The Equality of Rights between Men and Women), as contained in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (8 May 2006) 223.

80 de Irujo v Spain, UN Human Rights Committee, Communication No 1008/2001, UN Doc CCPR/C/80/D/1008/2001 (15 June 2004) [6.5]; Barcaiztegui v Spain, UN Human Rights Committee, Communication No 1019/2001, UN Doc CCPR/C/80/D/1019/2001 (15 June 2004) [6.4].

81 de Irujo v Spain, UN Human Rights Committee, Communication No 1008/2001, UN Doc CCPR/C/80/D/1008/2001 (15 June 2004) [6.5]; Barcaiztegui v Spain, UN Human Rights Committee, Communication No 1019/2001, UN Doc CCPR/C/80/D/1019/2001 (15 June 2004) [6.4]. The Committee may perhaps be viewed as having taken some sort of value-driven approach to art 26 also on those occasions when it appears to have objected on

equality grounds to practices or laws evidencing a persecutory animus, for that reason alone:

Pezoldova v Czech Republic, Human Rights Committee, Communication No 757/1997, UN Doc CCPR/C/76/D/757/1997 (9 December 2002) (Partly Concurring Individual Opinion by Committee Member Justice Prafullachandra Natwarlal Bhagwati); Diergaardt v Namibia, UN Human Rights Committee, Communication No 760/1997, UN Doc CCPR/C/69/D/760/1997 (6 September 2000) [10.10].

Melbourne Journal of International Law [Vol 9 equality’.82 The formal principle of equality is the idea that equals should be treated equally, and it is certainly one of the purposes of art 26 to affirm this tenet. If we take this principle as our conception of equality for the purposes of art 26, the argument that homosexuals and heterosexuals should have an equal opportunity to procreate and parent can be restated as follows: the reason for recognising certain procreative and parenting options for heterosexuals also applies to lesbians and gay men, who should thereby enjoy equivalent options.

Obviously, that reason is essentially that human beings have an interest in parenting, which our cultures highly value. Indeed, the importance of the interest in parenting is such that it morally requires states to refrain from interfering not only with consensual heterosexual intercourse, but also, I would argue, alternative insemination at home. This does not necessarily mean that states are morally required to secure or tolerate all conceivable procreative means, such as the provision of assisted reproductive technology services. But to the extent that they decide to do so, the interest in parenting still features as the reason rationally justifying these decisions.

As far as heterosexuals are concerned (at a minimum those who are happy to procreate by having intercourse with their partner), the moral obligations which states have towards people engaging in procreation are legally codified by art 23(2) of the ICCPR. On the other hand, as we have seen, the same article, as interpreted in light of the Human Rights Committee’s jurisprudence on the right to marry, appears to deny the proposition that the interest in parenting of lesbians and gay men should be similarly supported.83 This creates a problem. Can one argue that art 26 requires that lesbians and gay men should have an opportunity to satisfy their interest in parenting which is genuinely equal to that of heterosexuals while accepting that art 23(2) may not require this, or remaining agnostic about that possibility?

In the Joslin case, with regard to the right to marry, the Committee argued:

The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles … 23 … and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry.

Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision … In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under article … 26 of the Covenant.84 The logic of this passage cannot be faulted. If an individual interest (for example, the interest in parenting) is important enough to ground an independent substantive right in the ICCPR (for example, the right to found a family), the 82 See generally Westen, above n 33, 185–229.

83 See above Part II(C).

84 Joslin, UN Human Rights Committee, Communication No 902/1999, UN Doc CCPR/C/75/D/902/1999 (30 July 2002) [8.2]–[8.3].

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men degree of protection afforded by the Covenant to that interest through that right is the level of protection required by the ICCPR human rights principles. If certain hypothetical derivations of the substantive right (for example, the right to found a lesbian/gay family) are not covered by the substantive right (the right to found a family) as guaranteed by the ICCPR, it is presumably because the interest grounding the right (the interest in parenting) is, according to the Covenant, not important enough, in light of relevant counter-considerations, to justify that particular derivation. Thus, if one concludes that the foundation of lesbian and gay families is not protected under the right to found a family, this means that, under the Covenant, one can lawfully differentiate between homosexual families and heterosexual families. Accordingly, there seems to be little scope under art 26 for obliging states to give lesbians and gay men an opportunity to satisfy their interest in parenting which is genuinely equal to that of heterosexuals, unless we are prepared to argue simultaneously that the existence of such an obligation can be established also under art 23(2). In this sense, a procreative claim under art 26 cannot be construed as freestanding even if art 26 is a freestanding equality guarantee.85 Relevantly, art 26 does cover procreative matters which are probably outside the jurisdiction of art 23(2). In particular, if a state provides (or tolerates the provision of) assisted reproductive technology services, art 26 applies even if art 23(2) is deemed (as I think it should be) to guarantee the right to use such services neither to heterosexuals nor to lesbians or gay men. It does not follow, however, that denying or limiting lesbian or gay access to such services would violate art 26, if one is prepared to accept that art 23(2) may not protect lesbians’ and gay men’s procreative rights. This is because the case for providing equal access to reproductive technology services under the formal principle of equality contained in art 26 rests on the proposition that equal consideration must be afforded under the ICCPR to the interest in parenting of lesbians and gay men and that of heterosexuals. But this same proposition is denied by art 23(2) to the extent that it is interpreted to allow states to interfere with the procreative rights of lesbians and gay men, such as by prohibiting alternative insemination at home.

In this sense, if art 23(2) is taken not to protect lesbian and gay procreative rights, it also indirectly suggests that art 26 does not protect their right to equal treatment with regard to those procreative opportunities incorrectly conceptualised as rights, and hence falling outside the jurisdiction of art 23(2) in the first place.

In short, the proposition that art 26 requires that lesbians and gay men be secured procreative options available to heterosexuals stands or falls together with the proposition that art 23(2) protects for lesbians and gay men the subset of those options that are correctly conceptualised as procreative rights. Similarly, we cannot logically argue that art 26 requires equal protection for lesbians’ and gay men’s parental authority regardless of whether or not arts 17 and 23(1) require this too.

85 Cf Kollar v Austria, UN Human Rights Committee, Communication No 989/2001, UN Doc CCPR/C/78/D/989/2001 (1 September 2003) [8.7]; Diergaardt v Namibia, UN Human Rights Committee, Communication No 760/1997, UN Doc CCPR/C/69/D/760/1997 (6 September 2000) (Individual Opinion of P N Bhagwati, Lord Colville and Maxwell Yalden (Dissenting)) [7].

Melbourne Journal of International Law [Vol 9 In asking ourselves if the ICCPR protects procreative or parenting options for lesbians and gay men, we need to achieve consistent answers under art 26 and arts 23 and 17 — at least if we understand art 26 to be about the formal principle of equality. It is not so much that inconsistency would be aesthetically bothering.

Rather, the point is that the authority we want to claim for human rights law in order to deploy it effectively as a tool for progressive social change is justified in part by its integrity,86 such that we may have more to lose than to gain by compromising its internal coherence.87 I believe that arts 23 and 17 can and should be interpreted — in contrast to what has been implied or suggested by the Committee — so as to protect lesbians’ and gay men’s procreative and parental rights. Therefore I believe that art 26, in codifying the formal principle of equality, requires such protection.

Conversely, in so far as I think that art 26 requires protection for lesbian and gay procreation and parenting on a par with heterosexuals, I also think that the best interpretation of arts 23 and 17 requires protection for lesbians’ and gay men’s procreative and parental rights. But I do not think that we can in conscience argue that equal treatment between lesbians or gay men and heterosexuals with respect to procreative and parental options is required under art 26 regardless of whether or not we can establish procreative and parental rights for lesbians and gay men under arts 23 and 17.

(b) Young v Australia and X v Colombia The conclusion just reached — that we need to decide the issues involving lesbians’ and gay men’s interest in parenting arising under art 26 consistently with those arising under arts 23 and/or 17 — has important implications for the significance of a case decided in 2003 by the Human Rights Committee: Young v Australia.88 In Young, the Human Rights Committee, applying art 26, found certain legal provisions on pensions for the ‘dependants’ of war veterans discriminatory because they did not apply to same-sex partners while they did cover de facto and married different-sex partners.89 Although receiving pension benefits serves one’s well-being by satisfying one’s interest in economic security rather than one’s interest in establishing or cultivating familial relationships, the particular economic benefits at issue in Young were attributed on the basis of a familial relationship. Thus, even if the issues arising in Young did not trigger the application of the right to family life (art 17), to protection for the family (art 23(1)), or to found a family (art 23(2)), they inevitably involved implicit value judgements about the interest in establishing or cultivating certain family

relationships. In particular, the Committee noted:

in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with 86 Cf Ronald Dworkin, Law’s Empire (1986) 164–7,186–90, 214.

87 Contra Wayne Morgan, ‘Queering International Human Rights Law’ in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (2000) 208, 222.

88 UN Human Rights Committee, Communication No 941/2000, UN Doc CCPR/C/78/D/941/2000 (18 September 2003) (‘Young’).

89 Ibid [10.4].

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men all the entailing consequences. It transpires from the contested sections of the [Veteran’s Entitlement Act 1986 (Cth)] that individuals who are part of a married couple or of a heterosexual cohabiting couple … fulfill the definition of … a ‘dependant’, for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr C, for the purpose of receiving pension benefits, because of his sex or sexual orientation … The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.90 Note that, according to the Committee, differential treatment between heterosexual married couples and heterosexual de facto couples is admissible.

Furthermore, in finding a violation of art 26, the Committee’s explicit comparison was between the treatment of de facto heterosexual and same-sex couples. From this one might conclude that the Committee was suggesting that states have to confer benefits on same-sex couples only if they decide — as they are free, but not obliged, to do — to bestow them upon heterosexual de facto couples.

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