The Toonen Decision: Domestic and International Impact

The Toonen Decision: Domestic and International Impact Malcolm Langford* and Cosette D. Creamer** Abstract. It is frequently assumed that the quasi-judicial decisions of human rights treaty monitoring bodies do not have a significant impact on state practice. Yet if these decisions provide a political and symbolic resource in domestic and international politics, there might be room for increased optimism. In this chapter, we investigate the effects of the 1994 Toonen decision of the Human Rights Committee (HRC). We find that the case had a partly transformative effect on LGBT politics in the respondent state Australia but that the impact of that communications procedure was contingent (compared to levels of compliance with other HRC decisions against Australia). Turning to the international arena, we find that the Toonen decision most likely sparked greater attention by primarily (although not exclusively) Western states on LGBT issues before the HRC. However, subsequent state reporting to the Committee has dealt primarily with non-discrimination and not with de-criminalization of homosexual relations specifically. Professor of Public Law, University of Oslo; Co-Director, Centre for Law and Social Transformation, University of Bergen and Chr. Michelsen Institute; and Chair of Judgment Watch. Research for this chapter was conducted during Langford s stay at the Pluricourts Centre of Excellence. The authors would like to thank Inger Aasgaard, Tori Kirkebø, Sara Ekblom, Karianne Askeland and Karin Karin Maria Svånå for assistance in coding the state party reports and state-level criminalization. ** Assistant Professor of Political Science and Benjamin E. Lippincott Chair in Political Economy at the University of Minnesota, and affiliated faculty at the School of Law. * 1. Introduction Can a quasi-judicial decision of an international human rights treaty body catalyze significant social change? The weight of opinion on that question tends to be negative. Such skepticism is not confined to the province of realist scholars (Goldsmith and Posner, 2005; Posner, 2014) or legal institutionalists who presume that compliance only follows legally binding decisions (Edmundson, 1995: 82). Even some rational choice institutionalists who otherwise find evidence of the impact of international courts question the influence of bodies lacking formally coercive powers. For example, after finding that the European and Inter-American human rights courts have generated some significant impacts, Hillebrecht (2014: 142) argues that any given recommendation from a UN human rights treaty body holds very little weight for a state and provides only a nominal incentives for compliance . 1 Others are more optimistic. There may be incentives for government compliance if quasijudicial decisions provide a political and legal resource in domestic (and arguably international) politics. Along these lines, Simmons (2009) has found general albeit modest correlations between such a quasi-judicial mechanism in the form of a state s ratification of the of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) accepting the individual complaints mechanism to the Human Rights Committee (HRC) and improvement in civil and political rights. More broadly, sociological explanations of the role of law and legal institutions emphasize the symbolic or expressive role of quasijudicial decisions in shaping social meanings of acceptable behavior (McAdams, 2000; Goodman and Jinks, 2008; Çali and Koch, 2016; Cali and Wyss, 2011). This chapter seeks to advance the literature on both the impact of quasi-judicial bodies and sexual and reproductive rights lawfare by focusing on a landmark treaty body decision on sexual orientation. We analyze the effects of the HRC s decision in Toonen v. Australia (1994), which held that the criminalization of homosexuality was a violation of the right to privacy. 2 Such an outcome raises contrasting expectations on impact. On the one hand, we might expect it to be influential on account of its political salience. The decision has been commonly described as jurisprudentially groundbreaking , and it was the first time that LGBT rights had been recognized within the international human rights system. In effect, the Committee replicated the earlier European Court of Human Rights (ECtHR) judgment in Dudgeon v. United Kingdom3, but with potential application to most of the entire world. 4 Only two years after the decision, Helfer and Miller (1996: 63) were moved to claim that it contributed to increased litigation and advocacy concerning human rights violations based on sexual See also Hafner Burton (2013). Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). 3 Application no. 7525/76, 22 October 1981. 4 In this respect, its significance is evident in the predictions of the case s chances before the Committee. Michael Kirby, a prominent judge and scholar on human rights had predicted that the complaint would fail in the Committee, partly because it would also apply to countries like Saudi Arabia (Croome, 2014a: 2) 1 2 2 orientation … at both the domestic and international level . Fifteen years later, the UN High Commissioner for Human Rights described, in similar terms, the case as a watershed with its wide-ranging implications for millions of peoples 5; and its twenty-year anniversary brought claims that it changed “ustralian and international perceptions of human rights (Croome, 2014b: 1). On the other hand, we might expect that Toonen would generate few effects. Views on morally charged questions such as homosexuality tend to be entrenched. Public and elite opinion may be inelastic in response to decisions on this particular topic. Indeed, one of the key conclusions of Helfer and Voeten s (2014) analysis of the impact of the LGBT rights judgments of the ECtHR is that they were often implemented in spite of public opinion. Moreover, some scholars and activists warned that the Toonen decision had a potentially circumscribed effect on the expansion of LGBT rights. It located the right to consensual same-sex relations within the more limited frame of privacy and not the more open-ended framework of nondiscrimination. 6 This chapter seeks to examine various claims regarding both the positive and (partly) negative impacts of the HRC s decision in Toonen. It does so by examining two mechanisms or pathways through which this decision could potentially influence laws, practices and attitudes within countries: (1) the direct and indirect impacts within the respondent state Australia; and (2) subsequent periodic review by the Committee of states parties to the ICCPR, with a focus on rights that implicate LGBT issues. The decision s influence on global politics and comparative jurisprudence more generally will not be considered specifically in this chapter, although we note that proponents of its impact often cite its broader influence. For instance, it is commonly linked to the development of new international standards on LGBT rights and the case has been cited by the UN SecretaryGeneral when calling for the release of prisoners in Malawi convicted of sodomy-related crimes (Croome, 2014). It is also well known that Toonen was cited in leading decisions in South Africa and India on decriminalization,7 but interestingly only the ECtHR judgment was cited See: HREOC, 2011 News: UN Human Rights Chief highlights Australian sexuality case, 28 July 2011, available at https://www.humanrights.gov.au/news/stories/2011-news-un-human-rights-chiefhighlights-australian-sexuality-case 6 The potential for the use of the right to equal protection of the law and non-discrimination was highlighted in the Toonen separate opinion by Bertil Wennergren: First, these provisions of the Tasmanian Criminal Code prohibit sexual intercourse between men and between women, thereby making a distinction between heterosexuals and homosexuals. Secondly, they criminalize other sexual contacts between consenting men without at the same time criminalizing such contacts between women. These provisions therefore set aside the principle of equality before the law . The political ramifications of the privacy approach were noted by many commentators e.g., (Cameron, 1993) and were discussed and analyzed by Justice Albie Sachs in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999). 7 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999); Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009). 5 3 in the analogous decision by the US Supreme Court in Lawrence v Texas.8 We limit this study to two spheres Australian society and periodic review before the HRC that represent arenas in which we would most likely expect to observe the decision s influence. If we observe no or limited evidence of reverberations flowing from the HRC s decision in these two arenas, then the significance of Toonen may well have been no more than a proverbial drop in the bucket. 2. Domestic Effects 2.1 Background and Decision As with other colonies in the British Empire, anti-sodomy laws on the Australian continent were inherited from the moment of occupation in 1788. These prohibitions were retained in criminal codes passed by nineteenth century colonial parliaments and by state parliaments within the new federation in the early twentieth century. As criminal law remained a state and territorial prerogative within post-colonial Australia, piecemeal reform was near inevitable. Localized movements pushing for the decriminalization of homosexual relations began in the early 1970s, following grassroots social mobilization and the release of the Wolfendon report in the state of South Australia, the historical cauldron of most civil and political rights reforms in Australia. In 1975, South Australia decriminalized sexual activity between consenting adults in private, followed shortly thereafter by the Australian Capital Territory (1976), Victoria (1980),9 Northern Territory (1983), New South Wales (1984),10 Western Australia (1989) and Queensland (1990). These last two traditionally conservative states represented the laggards with respect to LGBT rights. Within Australia, however, one state bucked the trend toward decriminalization: Tasmania. Section 122 of the Tasmanian Criminal Code Act 1924 criminalized unnatural sexual intercourse or intercourse against nature and Section criminalized indecent practice 11 between male persons . This resistance stemmed partly from views of elected representatives, but was also reflected within public opinion; opposition to decriminalization was 15 percent higher than the national average (Croome, 2013). Although no formal arrest under the anti-sodomy law had occurred for some years, the state prosecutor confirmed in 1988 that proceedings would be commenced if sufficient evidence was available. 12 Criminalization fueled harassment, discrimination, violence and murder against gay and lesbian Tasmanians, with Nicholas Toonen noting the fine line he tried to walk in his highprofile activism on gay rights and HIV issues. Toonen noted that, that the criminalization of 539 U.S. 558 (2003). “lthough police used the replacement provision soliciting for immoral purposes to harass gay men for a decade afterwards. 8 9 10 Puzzlingly, New South Wales added homosexuality to its Anti-Discrimination Act 1977 as a prohibited ground of discrimination a year before in 1983. 11 See Toonen v Australia, paras. 2.1-2.7. 12 Ibid. Para. 2.2. 4 homosexuality in private has not permitted him to expose openly his sexuality and to publicize his views on reform of the relevant laws on sexual matters, as he felt that this would have been extremely prejudicial to his employment. 13 A reading of the Tasmanian parliamentary debates on a draft bill on anti-discrimination provides a clear sense of the level of opposition (Bernadi 2001). A prominent lower house member, George ”rookes, stated that the police need to track down and wipe out this group like murderers, drug addicts and deviant “IDS carriers . ”rookes continued: when I hear a Minister of the Crown making reference to the decriminalization of homosexuality I feel sick in the guts - when I hear these people (i.e. homosexuals) talking about human rights, my blood boils . This language of track down and wipe out had also been used by upper house members like Richard Archer in 1990, and the premier himself Robin Gray announced that everyone was welcome to visit Tasmania except homosexuals (Croome, 2014a). Toonen lodged an individual complaint to the HRC under the First Optional Protocol to the ICCPR, which Australia had recently ratified in 1991. The HRC agreed that Tasmania s law violated the right to privacy guaranteed within the Covenant. Within its decision, the HRC dismissed the public morality and health arguments made by Tasmania in support of its antisodomy laws as contradictory, unreasonable and disproportionate. Significantly, and in response to “ustralia s request for clarification, the HRC noted in passing that prohibited grounds of non-discrimination elsewhere in the Covenant included sexual orientation. 14 The Committee concluded by recommending that an effective remedy would be the repeal of Sections 122(a), (c), and 123 of the Tasmanian Criminal Code. 2.2 Compliance For the Australian human rights community, the HRC s decision represented a landmark on multiple fronts. It was the first time Australia had been the subject of a quasi-judicial proceeding by an international human rights treaty body. In fact, it was only the second time Australia had been forcibly subject to adjudicative proceedings of any type under international law.15 Many within the LGBT community celebrated the decision as a vindication of their internationally-recognized rights. However, the Tasmanian state refused to comply with the recommended remedy. Indeed, the Government reportedly threatened to withdraw funding from Toonen s employer the Tasmanian AIDS Council if it did not sack him.16 The federal government proved more responsive. Exercising its constitutional power to legislate on matters of external affairs, the Australian parliament passed the simple but straightforward Human Rights (Sexual Conduct) Act 1994 in December of that year.17 This topToonen v Australia, para. 2.4. Ibid. Paras. 8.1-87. 15 The first was before the International Court of Justice two years earlier: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 24. 16 Toonen v Australia, para. 7.10. 17 Section 4(1) reads Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference 13 14 5 down but indirect approach to compliance was politically expedient (Bernadi, 2001). The right to sexual privacy was entrenched in national law, which provided individuals with the presumptive right to challenge offending state laws in federal court. In this way, the federal government avoided a direct confrontation with Tasmania.18 LGBT advocates soon commenced proceedings within the federal court in the name of Tasmanian activist Rodney Croome.19 After Tasmania lost its procedural challenge to his right of standing, local politicians moved within its legislature to pre-empt a potentially negative judgment (Carberry, 2014). The conservative Liberal Party, which headed the Tasmanian government, permitted a free vote on the topic and on 1 May 1997 a repeal of the law passed by a slim margin in the Upper House of Tasmania. It is not a stretch to claim that the Toonen decision was directly responsible for this legislative reform in Tasmania. Parliamentary debates and news coverage clearly indicate that the authoritative but non-legally binding decision of the HRC provided opposition politicians, political activists, and domestic courts with additional leverage to engender change. Yet, this is not to claim that reform would not have occurred in Tasmania in the absence of the Toonen decision. Public opinion had already begun to shift in favor of decriminalization by the time the HRC handed down its proclamation, and it would be naïve to expect that this would not be without consequences (cf. Rosenberg, 1991). Moreover, the Tasmanian Liberal-led government lost its lower house majority in the 1996 elections, providing the Labor and Green parties more freedom over the legislative agenda. However, the Toonen decision clearly accelerated the pace of change by shifting power relations within Tasmania and generating new allies for Tasmanian activists in the form of the “ustralian government and High Court. As Carberry (1994:43) noted This new strategy side-lined Tasmanian politicians, and concentrated on gaining the support of federal politicians and agencies. The strategy was eventually successful in ridding Tasmania of its anti-homosexual laws, but it proved to be an agonizingly slow process and change had to wait until 99 . 2.3 Impact Second-order compliance with a quasi-judicial decision is but one way in which international law and its interpretation by the human rights treaty bodies can stimulate changes on the ground. A mere focus on direct compliance can obscure international law s role in managing relations between diverse norms and regimes, setting benchmarks for decision making and bargaining, and transforming our perceptions of political conflicts (Howse & Teitel 2010). As shown in Table 1, we can conceptualize the potential impact of the decision of a treaty monitoring body along the axes of direct indirect and material symbolic/political (RodríguezGaravito, 2011; Langford, 2014). The direct-material effects correspond with second-order with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights. 18 The approach is reminiscent of Roosevelt s approach on civil rights in the US“, largely delegating the politically costly battle to the courts: Kagan (2001). 19 Croome v Tasmania, (1997) 91 CLR 119. 6 compliance, discussed above. This section traces the other three claimed effects of the decision, which we argue are just as interesting and illuminating in terms of Toonen s broader reverberations. Table 1. Claims of Impacts of Toonen in Australia Direct Material • • • Indirect • By 2003, Tasmania had the most Federal government entrenched comprehensive anti-discrimination and the right to sexual privacy relationship laws in Australia. Tasmanian government repealed • Tasmania in top three of state and territories laws in 1997 on same-sex couple rights. • • Symbolic/ Political • • Tasmania second to introduce same-sex marriage laws in 2012. • Revitalized LGBT campaigning• on decriminalization in Tasmania Foundation for future LGBT cases to the UN (Young v Australia) Change in public discourse on LGBT rights from medicalization (anti-HIV struggle) to human rights. Some claims of revitalized general LGBT campaigning Self-empowerment of activists and broader engagement Beginning with indirect material effects, advocates and activists have pointed out that Tasmania has moved from being the most conservative state in Australia on LGBT rights to one of the most progressive. In the words of an American journalist, Tasmania effectively transitioned from the “ustralian “labama to Massachusetts in less than a generation (Croome, 2014).20 After two decades of debate, the state adopted in 2003 the most comprehensive antidiscrimination law in Australia. By 2014, Tasmania was firmly in the progressive ledger of states and territories in terms of embedding a host of LGBT rights issues within state legislation. Same-sex couples possessed de facto relationship status, could register civil unions, adopt children, access fertility treatments and print their names on a child s birth certificate if they were not the biological parents. Tasmania was only one of three states or territories to recognize this quenelle of rights. See generally Kathy Marks, Bigots' Island becomes gay rights central: Tasmania is undergoing a remarkable cultural conversion , The Independent, 8 June 2013, available at: http://www.independent.co.uk/news/world/australasia/bigots-island-becomes-gay-rights-centraltasmania-is-undergoing-a-remarkable-cultural-conversion-8650749.html. 20 7 Moreover, Tasmania was the first state or territory to recognize foreign same-sex marriages as a lawfully protected relationship (overwhelmingly in the lower chamber) 21 and the second to introduce a same-sex marriage bill to its parliament (which narrowly lost in the upper chamber).22 The Australian Capital Territory 23 successfully passed a same-sex marriage bill in October 2013, but this was nullified less than two months later by the High Court on the basis that the federal government had exclusive jurisdiction over marriage. 24 However, Tasmania lags some states and territories on new laws to expunge gay sex criminal records and include sexual orientation and gender identity/expression in hate speech laws. This remarkable transformation of Tasmania s approach to policy-making on LGBT rights has been partly linked to the Toonen case. “s Croome b: claims, [a]s well as leading directly to decriminalization, the momentum produced by the UN decision created the conditions for a rejuvenation of human rights in Tasmania. This is a strong claim but not one made by a legal apologist. He led the Tasmanian social movement of the time (the Tasmanian Gay and Lesbian Rights Group (TGLRG)), had received various national and Tasmanian awards for his advocacy on LGBT rights before the Toonen decision, and was involved and well-placed in parliamentary politics. Today, he is at the forefront of the national campaign for marriage equality, which is focused on parliamentary reform. Croome s claim further supports the theoretical notion that litigation often serves the role of revitalizing and sustaining weary social movements, by providing a focal point for action and discourse (McCann, 1994; Madlingozi, 2014). In addition, the decision had a negative publicity effect in that the Tasmanian state was revealed to both domestic and international audiences as backwards on a politically salient issue, to the point of being dubbed 'Bigots Island' in the British press and sparking a boycott on Tasmanian produce. 25 The reform debates generated such on-theground mobilization that [h]omosexual decriminalisation was rarely out of the news for almost a decade (Croome, 2013). These remarkable transformations of Tasmania law and public views cannot be attributed entirely to the decision of the HRC. For example, the enactment of the lauded 2003 discrimination act provides evidence for a late adopter phenomenon . The Tasmanian deliberations over the content of the new law drew on a wide array of existing laws and new formal proposals across Australia. 26 Moreover, Tasmania s lack of progress in legislating on discrimination issues had already come to national attention in the early 1990s, it was the only state without an antidiscrimination law. This deficiency generated national attention in 1990, after a victim of sexual harassment, Karina ”aker, brought a claim under Tasmania s common “ndrew Potts, Tasmania votes to recognize foreign same-sex marriages , Star Observer, 1 September 2010, available at http://www.starobserver.com.au/news/local-news/new-south-wales-news/tasmaniavotes-to-recognise-foreign-same-sex-marriages/30306 22 Damian Larkins, Same-sex marriage voted down in Tasmania , ABC Radio Hobart, 29 September 2012, available at: http://www.abc.net.au/local/stories/2012/09/28/3599638.htm 23 Self-governing territory which hosts the Australian capital, Canberra. 24 Commonwealth v ACT [2013] HCA 55. 25 Kathy Marks, Bigots' Island, n 20 above. 26 See overview of Australian legal developments and debates in Millibank (2006). 21 8 law (Browne, 1993). On the tenth anniversary of the federal anti-discrimination law, Baker was given a national award by the Prime Minister for her struggle on the issue, a ceremony held just two months after the Toonen decision (Bernadi, 2001). Turning to the decision s symbolic and political effects, it is arguable that there was a measure of direct effect. The decision provided a new basis for mobilization by LGBT activists in Tasmania and a form of discursive leverage in political negotiations on decriminalization. The decision may also have had some direct impact on public opinion in Tasmania. While Tasmania entered the 1980s with forty-nine percent of the population supporting legal reform on decriminalization,27 this support had fallen to thirty-one per cent by 1987 (Carberry, 2014). This stark drop-off in support for LGBT rights partly helped spur a revitalization of the LGBT movement, beginning with a gay rights stall at the Salamanca market and subsequent arrests. By 1988 support had risen to the tune of 43% in 1988 and 49% by 1989. However, support for decriminalization stabilized at that level, and it was quite low compared to the leading state at the time Western Australia with 74% support.28 A critical question, however, is whether we can we can identify an increase in support during the three key moments connected to the Toonen case: filing of the communication in 1991, the HRC s decision in 1994, and domestic court victory in 1995. Such an approach may alone both over-estimate and under-estimate effects (if there are other casual factors or symbolic effects are diffuse and gradual), and thus requires a full empirical research project on its own. But it is possible to expect moderate and contingent effects on public opinion: this is the principal conclusion from studies of courts and public opinion using both survey and experimental methods (Hoekstra, 2003; Mondak, 1990; Ura, 2014; Stoutenborough, Haider-Markel and Allen, 2006; Hanley, Salamone and Wright, 2012; Linos and Twist, 2013: 17). It is also possible to identify indirect symbolic and political effects of the decision, in that it provided precedent and inspiration for a future case before the HRC on LGBT rights in Australia: Young v Australia.29 In 1999, Edward Young challenged the denial of a state pension paid to the dependents of war veterans who have died of war-related causes. The Veterans’ Entitlements Act 1986 (Cth) explicitly stated that eligible partners must be of the opposite sex to the veteran. Drawing on the Toonen precedent, the Committee affirmed in 2003 that sexual orientation was a prohibited ground of discrimination and that the state had no reasonable justification for the distinction. The Liberal-led Australian government refused to comply immediately, but in 2007 the new Labor-led government made sweeping reforms to the challenged legislation (Remedy-Australia, 2014). Moreover, the energy Toonen provided in revitalizing campaigns for decriminalization in Tasmania seemed to have also spilled over into mobilization on other LGBT and human rights issues. A new NGO, Remedy Australia, fighting for compliance more broadly with human rights treaty body decisions was started by Nicholas Toonen and is but one example of these Gay Community News (Melbourne), Vol 2, No. 3, April 1980, p. 28. Note 2001: Tasmania immoral 39 % - 2001 http://www.roymorgan.com/findings/finding-3429-201303010008 29 Communication No. 941/2000, U.N. Doc. CCPR/C/78/D/941/2000 (2003). 27 28 9 indirect catalytic effects. Activists have also claimed that the decision and its language helped shift the public discourse on HIV away from a medical model to a rights-based one that they were able to leverage: Prior to 1994 the dominant raison d’etre for removing laws that discriminated against gay men was HIV prevention. While that argument was valid, it tended to medicalize LGBT people. Almost overnight the LGBT discrimination debate was transformed by the Tasmanian UN decision, into the kind of unabashed call for equal human rights which has been at the centre of every gay law reform campaign since (Croome, 2014b). While it is doubtful that Toonen could have been directly responsible for a discursive shift of such dramatic proportions, the decision was clearly important in helping catalyze and legitimate a new framing for responses to the HIV crisis. 2.3 Explaining Compliance: A Comparative Method The primary challenge for generalising the experience of the impact of the Toonen case is whether it is sui generis; that is whether particular forces conspired to generate far greater effects in this instance than could be commonly expected from such a quasi-judicial decision. Were there special circumstances in this case that help to explain its seemingly high level of impact? A report by Remedy Australia (2014) suggests that Australia very rarely complies with recommendations emanating from complaints to human rights treaty bodies. Moreover, and of direct relevance to this volume, it begs the question of whether the nature and timing of the case and the underlying domestic politics is doing most of the heavy lifting in ensuring straightforward compliance and broader impacts. There may be two reasons to suspect that the case was not representative or that such impacts are highly conditional. The first is that it concerned a sub-national rather than a federal law. This factor may not only be relevant to explaining the decision in that the national government could provide a weak defense for the challenged sub-national legislation it may also account for the level of compliance observed. As the decision concerned a state law and not a federal policy, the national government avoided direct conflict with the Committee and the government was not pressured to amend one of its own policies. That being said, complying with an international decision concerning a sub-state entity may also be political challenging: it invites a conflict with another state entity and plays into long-standing concerns about federal over-reach and interference. The second reason this case may not be representative of “ustralia s typical responsiveness to supranational quasi-judicial decisions is that the challenged law was out of sync with general Australian public opinion and trends in Tasmanian public opinion in the early 1990s. Thus, the political costs of non-compliance for the Tasmanian government were likely to be rising while the political costs of action for the Australian federal government to pressure Tasmania to comply were relatively low. Even so, public opinion support for gay rights in both Australia and Tasmania was not overwhelming at the time and conservative attitudes were of significant intensity, suggesting that changes in public opinion did not entirely drive “ustralia s response to the HRC s decision. 10 In order to evaluate whether Toonen is typical or sui generis, we coded the levels of compliance for all twenty-six complaints brought against Australia under ICCPR First Optional Protocol that reached the judgment phase from 1994-2013 (see Table 2 for a summary). The information on compliance for each decision is taken from Remedy Australia (2014), with the impact of the communication coded as an ordered variable: full compliance (2); partial compliance (1), and no compliance (0).30 Of the twenty-six HRC complaints decided to date, Australia achieved full compliance in only six instances (23%). In this respect, Toonen is not a complete outlier and is rather representative of a minority of cases that were fully implemented. 30 Although in two cases, we chose a slightly different level than the authors of this report. 11 Table 2. Compliance by Australia with UN Treaty Body Decisions Applicant Body Year Petition s Theme Compliance Govt intention31 Gov’t change Sub-Nat’l Authority Migrant Ethnicity Compensation Toonen HRC 1994 1 Sexual orientation/Criminalisation Full Positive 2) A HRC 1997 1 Prolonged detention None Negative X X X Elmi CAT 1999 1 Deportation None Negative X X X Baban HRC 2000 1 Deportation Partial Negative X X X Winata & Li HRC 2001 1 Deportation Partial Ambiguous X X X C HRC 2002 1 Deportation Partial Ambiguous X X X Rogerson HRC 2002 1 Fair trial Full Ambiguous X Hagan CERD 2003 1 Racial vilification Bakhtiyari HRC 2003 1 Deportation Cabal & Pasini HRC 2003 1 Inhuman treatment Young HRC 2003 1 Sexual orientation/Discrimination Madafferi HRC 2004 1 Extradition/Inhuman treatment Faure HRC 2005 1 Right to a remedy None Negative X Brough HRC 2006 1 Inhuman treatment None Negative X X Coleman v Australia HRC 2006 1 Freedom of assembly None Negative X X D & E v Australia HRC 2006 1 Deportation Partial Ambiguous X X X X Shafiq HRC 2006 1 Detention/Deportation Partial Ambiguous X X X X Dudko HRC 2007 1 Fair trial Shams HRC 2007 8 Detention Kwok HRC 2009 1 Extradition Fardon HRC 2010 1 Indefinite detention Tillman HRC 2010 1 Detention Nystrom HRC 2011 1 Citizenship/Deportation Chun Rong CAT 2012 1 Deportation FKAG v Australia HRC 2013 1 inhuman treatment/deportation MMM HRC 2013 1 inhuman treatment/deportation 33 31 Coding for this variable: Positive (1), Ambiguous (1) and Negative (0). X Law reform Full Negative None Negative X Partial Ambiguous X Full Negative X X X X X X X X X X X X X X X X Full Ambiguous None X X X X Negative X None Ambiguous X X X X X X X X X Partial Positive X X X X Full Negative X Partial Ambiguous X None Negative Partial Negative None Negative 0.5/2 X X X 80,8 % X X X Partial Ambiguous 0.8/2 Recent 30,8 % X X X X X X X X X X X X X X 65,4 % 61,5 % X 34,6 % X X 50,0 % 26,9 % We focus on a number of factors that could explain general and full compliance, based on previous comparative research on the conditions for compliance (Brinks, 2016; Langford, Garavito-Rodriguez and Rossi, 2016; Kapiszewski and Taylor, 2013; Helfer and Voeten, 2014). We coded eight factors: (1) government will or intention, as measured by immediate response of government to decision;32 (2) whether there was a change of federal government in the compliance or non-compliance period; (3) whether a law/policy of a sub-national authority was challenged; (4) whether the petitioner was a foreigner or migrant; (5) whether the petitioner was of non-Caucasian background; (6) whether the Committee found law reform would be a suitable remedy; (7) whether the Committee found compensation would be an appropriate remedy. A binary control was also added for time - if more than five years had elapsed since the decision it was assumed that the state has had significant time to overcome any technical hurdles to implementation. This study is only preliminary and focuses primarily on institutional and case variables rather than broader civil society and background structural features such as the role of lawyers, social movement and public opinion. For instance, the presence of a well-organized, even if small, social movement is often important for compliance and is clearly present in the Toonen case. But we are yet to code such features across all cases. Some clear patterns emerge in terms of bivariate correlations between these seven factors and level of compliance (see Appendix 1). First, it does not seem to matter for greater compliance whether the challenged measure involves a sub-national authority. This is despite the fact that in many areas of law mostly criminal the federal government has been extremely reluctant to interfere with a state s prerogative. Instead, government will its immediate and expressed position and a change of government (in most instances from the conservative to labor party) are strongly and positively correlated with greater levels of compliance. Thus, Toonen shares a common characteristic with these successful cases in that the intensity of federal government resistance was lower and the Labor party was in power at the time of implementation. For full compliance, applicant characteristics (migrant, ethnicity) and remedy recommended (law reform and/or compensation) matter much more. Oddly, and in contrast to findings for most studies with international human rights courts and bodies,33 the remedy of compensation does not increase the probability of full compliance. Indeed, Australia almost never pays compensation. This phenomenon is particularly apparent in the migration cases: there may be partial compliance (deportation is suspended) but no compensation is paid for inhuman treatment while in detention. However, the negative correlation between non-White/migrant applicants and compliance suggests that the government might have been more receptive to the Toonen decision because it was brought by white Australians. However, the parliamentary records on the debates on criminalization in Tasmania (see above) reveals a strong and prejudicial political discourse amongst some conservative politicians that would arguably not have been acceptable on racial questions at the time. 32 33 Taken from the Remedy Australia report which indicated the initial government response. See discussion and review in Langford, Garavito-Rodriguez and Rossi (2016). This initial analysis suggests that the Toonen case was not a full outlier in terms of responsiveness to the HRC, but also that compliance with the decisions of supranational bodies is far from perfunctory in Australia. It suggests that quasi-judicial decisions can engender compliance, but that certain types of cases and remedies are more favorably poised than others in the Australian context. 3. The Periodic Review Process and the ICCPR All parties to the ICCPR are obligated to submit to the HRC regular reports on their implementation of and compliance with treaty guarantees. Following report submission, the Committee meets in person with government representatives to engage in a constructive dialogue about treaty implementation, at the end of which it issues a set of recommendations to the states party. This section examines the treatment of sexual orientation within this periodic review process of the HRC, drawing on and further developing the approach adopted in Creamer and Simmons (2015). Through multivariate analysis, we seek to explain temporal and cross-national changes in the nature of reporting on LGBT rights issues, and the potential role of the Committee in influencing either directly via its concluding observations or in terms of broader, erga omnes type effects the reporting practices of states parties to the ICCPR. 3.1 State party reports Although no report submitted to the HRC to date (save that of Australia following the individual communication procedure) has referenced the Toonen decision, we might expect this case to encourage states to begin to report more thoroughly on LGBT rights issues for three reasons. First, the Toonen decision served as a clear signal that LGBT rights constitute a sphere of civil and political rights over which the HRC is willing to exercise jurisdiction. States parties to the ICCPR (particularly those that pay attention to the Committee s decisions under the individual communications procedure) seeking to pre-empt public censure or questioning on LGBT issues would thus be incentivized to reference LGBT rights protections within their reports. Second, the decision might shape governments understandings of HRC expectations for the LGBT content of reports. Expressed or implied expectations communicated by the Committee or the OHCHR largely shape the content of state reports. Given continuing uncertainty about the appropriate scope, content, and structure of state reports, the Toonen decision signals changed Committee expectations for reporting obligations. Finally, the decision could endogenously increase the scope and quantity of questions on LGBT rights raised during the Committee s in-person review or within its concluding observations. This shift in questioning and concluding observations should in turn influence the content of subsequent reports, as governments are expected to respond to these concerns. In order to evaluate the impact of the Toonen decision on ICCPR periodic review, we code states parties reports to the HRC for the scope of reporting on LGBT rights issues. We focus on both the limited issue raised by the Toonen decision (de-criminalization of consensual sexual relations between individuals of the same sex) as well as discussion of other LGBT rights covered by a country s civil and political laws. We coded all reports submitted to the HRC 14 between 1977 and 2014 for: provision of information on the (de)criminalization of homosexual relations; provision of information on other LGBT rights aside from consensual sexual relations; and specific references to LGBT rights within information provided on implementation of and compliance with ICCPR Articles 17 and 26. Although the Toonen decision found that the criminalization of consensual homosexual relations violated ICCPR “rticle s right to privacy, the decision s separate opinion as well as the original individual communication addressed the issue of LG”T rights under ICCPR “rticle s right to equality before the law/non-discrimination. By focusing specifically on reporting on LGBT rights under these two ICCPR provisions, we will be able to speak to claims of the limited impact of Toonen given its circumscribed finding within the context of privacy rights. Propensity to report The reporting record of the HRC is not trivial. States parties have submitted 467 total reports to the HRC as of 2014 (81.8% of those due), although many of these are submitted late and often after years of delay. While we are interested in the nature of state reporting for LGBT rights specifically, it is critical to understand why states report or fail to in the first place. All states are obligated to send the Committee a report within a year of ratification; each is then required to follow up with a report every four years, 34 but many states are not meeting their reporting obligations. What factors increase the probability a state will turn in a report to the HRC in any given year? That is, which factors help explain the propensity for a government to select into the periodic review process and thus make possible any engagement with the HRC on LGBT rights? GDP per capita Population NHRI Polity IV HRTs Ratified Phys Int Association Optional Protocol −0.05 0 0.05 Article 40 of the ICCPR gives the Human Rights Committee discretion to decide when periodic reports shall be submitted. In general, these are required every four years. 34 15 Figure 1. Estimated Likelihood of Reporting to the HRC. Simulated estimates of probability of report submission. The circles represent estimates of the expected effect on the probability of reporting to the Human Rights Committee as each covariate changes from its 25th to the 75th quartile or from 0 to 1 (for binary covariates), with all other variables held constant at their means. The lines are bootstrapped 95% confidence intervals. The circles and lines are solid when there is at least 95% confidence of a positive or negative effect. Otherwise, circles are open and lines are dotted. Standard regression tables can be found in Appendix Table A2.1. We use panel data on report submission from 1977-2014 for all ICCPR states parties 35 to test some simple propositions about the propensity to report. Figure 1 graphically presents the expected probability of reporting based on a pooled logistic odds regression (see Table A2.1 for standard regression coefficients). First (and unsurprisingly), states report to the HRC if they have the capacity to do so. The richer a country, the more likely it is to report in a given year, with GDP per capita (logged) strongly and positively correlated with reporting. Unlike for some other human rights treaties (Creamer and Simmons 2015), the presence of a National Human Rights Institution (NHRI) is not strongly correlated with report submission. It is somewhat surprising that more democratic regimes (measured by Polity IV scores) and governments with better rights practices (measured by physical integrity and association rights scores) 36 are no more likely to meet their reporting obligations than more autocratic or repressive governments. Finally, neither ratification of the ICCPR s First Optional Protocol (establishing an individual complaints procedure to the HRC) nor strong buy-in to the human rights regime (measured by percentage of major human rights treaties ratified) are correlated with a greater propensity to submit reports on civil and political rights. In sum, we have no reason to expect that LGBT rights-respecting countries are any more or less likely to participate in HRC periodic review than countries that provide fewer or no LGBT rights protections. Reporting on LGBT Issues As for reporting on LGBT rights issues, thirty-seven percent of the 399 reports coded between 1977 and 2014 reference LGBT rights in some way.37 Although a few reports submitted before the Toonen decision in April 1994 did reference LGBT rights issues, there is a noticeable uptick in the proportion of submitted reports that discuss such rights issues during and following Source: Cosette D. Creamer and ”eth “. Simmons, Do Self-Reporting Regimes Matter? The Impact of Dynamic Regulatory Procedures in International Human Rights Law ms. ). 36 The Physical Integrity Rights Index from the Cingranelli and Richards Human Rights Dataset is an additive index constructed from the Torture, Extrajudicial Killing, Political Imprisonment, and Disappearance indicators, ranging from 0 (no government respect for these rights) to 8 (full government respect for these rights). See David L. Cingranelli and David L. Richards. 1999. "Measuring the Level, Pattern, and Sequence of Government Respect for Physical Integrity Rights." International Studies Quarterly, Vol 43.2: 407-18. 37 Due to document constraints, we were only able to code 399 of the 467 reports submitted between 1977 and 2014. 35 16 1994 (see Figure 2). Critically, no non-Western state had done so prior to the Toonen decision. However, governments are much more likely to reference LGBT rights issues in the context of broader civil and political rights than with respect to the criminal law status of same-sex relations within their country. Only 7.2% of all reports submitted indicate whether homosexual relations are criminalized. Since 1994, there has been no noticeable increase in the proportion of reports that discuss the criminal law status of homosexuality (see Figure 2). This tentatively suggests that Toonen may not have incentivized states to report on criminal status per se, to highlight or draw attention to their (good) practices on this issue. Figure 2: Reporting on LGBTQ Rights Issues to the HRC. Number of reports submitted to the Human Rights Committee that do not reference LGBTQ rights issues, that reference the criminal law status of homosexuality and/or that reference non-discrimination LGBTQ rights, by year. However, it is important to also ask which states were reporting on the criminal law status of homosexuality after Toonen. It may be that states which criminalized this behavior reported on this issue more often, possibly on the basis of an enhanced sense of accountability or at least answerability. We have therefore coded the criminal law status within a state at the time of its reporting and found the following. Before the Toonen decision, only 5.3% of criminalising states mentioned LGBT rights: see Table A2.5 in the annex. This figure rises to 16.2% after Toonen, but is not a particularly marked increase. 17 In contrast to LGBT rights within the criminal law context, 33.8% of all reports submitted address LGBT rights issues not having to do with sexual relations. These references appear most often in the context of equality before the law and non-discrimination, though also in relation to employment laws, government benefits, marriage/family, and the rights of the child. Wealthier and more democratic countries are much more likely to reference gender equality and non-discrimination, for example, within their reports than developing and/or less democratic countries (see Figure 3, right panel). This is not that surprising, given global trends in public opinion over time. That being said, the increase in the relative frequency of references to LGBT rights issues over time across democratic/developed and non-democratic/developing countries (see Figure 2) suggests the emergence of an expectation that governments should be reporting on LGBT rights guarantees or shortcomings. Moreover, there is a significant increase in the number of states in which homosexuality is illegal reporting on general LGBT issues (from 5% to 26%). Although two-fifths of them do not mention that homosexuality is illegal. Overall, the frequency of references (though not always the proportion of all reports submitted in a given year) to both the criminal status and LGBT rights issues more generally is higher within the past decade than previously. Generally, we would expect the Toonen decision to be of little direct relevance for most Western states as they had already been decriminalizing homosexuality prior to 1994. Instead, we would expect Toonen to have a relatively greater impact among non-Western states. Interestingly, the first non-Western states begin to address LGBT rights issues already in late 1994. By 2002 they are referencing the (de-)criminalization of homosexuality just as frequently as Western states, despite the fact that public opinion on LGBT rights is not, on average, moving as quickly within these countries. However, Western countries are much more likely to report on LGBT rights issues in the context of non-discrimination or broader civil and political rights than their non-Western counterparts, with the exception of Eastern European countries (see Figure 3). 18 Figure 3. Regional trends in references to LGBTQ Rights Issues within CCPR Reports. Number of reports submitted to the Human Rights Committee that do not reference LGBTQ rights issues, that reference (non-) criminalization of homosexuality and/or that reference nondiscrimination LGBTQ rights, by region. We might expect Western states to report on and draw attention to good practices, given that public opinion on LGBT in these states has been largely ahead of UNHRC jurisprudence (with the exception of a few countries). Yet descriptive evidence suggests that highly stable and democratic states that do not (or never did) criminalize homosexuality do not take advantage of the reporting opportunity to publicize this fact. The governments that are forthcoming about the criminal status of homosexuality tend to be those that recently enacted laws effecting decriminalization. For example, of the first nine countries to report on LGBT rights post-Toonen in 1995-1996,38 only Belarus, Romania, and Zimbabwe referenced the criminal status of homosexuality. Belarus noted that it had removed a provision from the criminal code establishing liability for voluntary homosexual relations (between men),39 while Romania discussed a pending amendment that would criminalize homosexual relations only if "committed in public or lead[ing] to public scandal. 40 Belarus, Belgium, Denmark, Finland, Iceland, Romania, Spain, Switzerland, and Zimbabwe. Twentyone countries submitted reports between 1995-1996 that did not reference in any way LGBT rights issues, including countries such as France, Germany, India, Libya, Poland, Slovakia, Sudan, Uruguay, and Zambia. 39 Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Belarus (11 April 1995), U.N. Doc. CCPR/C/84/Add.4 (3 September 1996), para. 89. 40 Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Romania (26 April 1996), U.N. Doc. CCPR/C/95/Add.7 (29 April 1997), para. 197. Zimbabwe, 38 19 However, it is difficult to disentangle the impact on newly-transitioned from established democracies. As seen in Figure 4, a country s Polity IV score is not a strong predictor of its propensity to reference the criminal status of homosexuality (left panel), although wealthy and more democratic countries are more likely to reference LGBT rights issues in the context of non-discrimination (right panel), even when controlling for both a linear time trend and a number of basic predictors of reporting. Countries that demonstrate greater respect for physical integrity rights are, however, more likely to reference the criminal status of homosexuality within their CCPR reports (Figure 4, left panel). GDP per capita GDP per capita Population Population NHRI NHRI Polity IV Polity IV Phys Int Phys Int Association Association Optional Protocol −0.5 0 Optional Protocol 0.5 −0.5 Probability of (Non−)Criminalization Homosexuality Reference 0 0.5 Probability of Non−Discrimination Reference Figure 4. Estimated Likelihood of Referencing LGBTQ Rights Issues within CCPR Report. Simulated estimates of probability of referencing two types of LGBTQ rights issues within a country s periodic report to the HRC. The circles represent estimates of the expected effect on the probability of reference as each covariate changes from its 25th to the 75th quartile or from 0 to 1 (for binary covariates), with all other variables held constant at their means. The lines are bootstrapped 95% confidence intervals. The circles and lines are solid when there is at least 95% confidence of a positive or negative effect. Otherwise, circles are open and lines are dotted. Standard regression tables can be found in Appendix Table A2.2. for its part, ambiguously referenced that homosexuals constituted prohibited persons under the Immigration Act. Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Zimbabwe (20 November 1996), U.N. Doc. CCPR/C/74/Add.3 (29 September 1997), para. 122. 20 Interestingly, ratification of the First Optional Protocol (OP) to the ICCPR which indicates acceptance of the individual complaints procedure under which Toonen was decided is associated with a lower probability of referencing LGBT rights issues, although this relationship is substantively small and not significant (Figure 4, right panel). In contrast, OP ratification strongly reduces a country s propensity to report on the criminal status of homosexuality (Figure 4, left panel). At first this may seem like a counterintuitive finding, but it is understandable if we recognize the likely high correlation between OP ratification and decriminalization of homosexuality. These countries may simply not need or find it necessary to reference the criminal status of homosexual relations within their reports to the HRC. However, as Langford, Vibe and Kirkebø (2015) demonstrate, thirty-four African, Asian and Latin American countries have both ratified the OP and criminalized same-sex relations. We thus might expect these states to report pre-emptively, given the prospect of litigation on the basis of the Toonen precedent. Moreover, lawyers in African countries that have criminalized homosexuality have been active in facilitating complaints on other issues to the Committee. Yet very few of these states have reported and there does not appear to have been a cost in terms of individual communications, with no follow-up Toonen case against these states. Quality and Responsiveness Increasing references to LGBT issues may indicate the extent to which governments respond to internal or external expectations to discuss such rights, but tells us little about the quality of reporting about these issues. By report quality, we mean a government s acknowledgment of shortcomings in implementation of and compliance with its ICCPR obligations and government responsiveness to recommendations made by the Committee. To evaluate quality and responsiveness, we assigned each state report submitted to the Human Rights Committee a score for how forthcoming and transparent the government was with respect to (1) implementation; (2) compliance; and for subsequent periodic reports (3) responsiveness to the Committee s previous recommendations. We focus on quality and responsiveness in relation to four ICCPR provisions: Articles 17, 19, 26, and 29. As mentioned previously, the Toonen decision found a violation of the right to privacy under Article 17, and the separate opinion referenced equality before the law and nondiscrimination under Article 26. We focus first on Articles 17 and 26 to account for changes in the general quality and responsiveness of reporting on provisions under which we might expect governments to reference LGBT rights issues, but which are also likely to encompass non-LGBT issues. We also focus on Article 19 (freedom of opinion/expression) and Article 27 (rights of minorities) to provide a comparative baseline assessment of changes in report quality on provisions not directly referenced within Toonen and not likely to directly implicate LGBT rights issues. Including these provisions helps us evaluate whether there are underlying temporal shifts in the nature of reporting or country-specific characteristics of reports unrelated to LGBT rights issues. In addition, we coded the quality and responsiveness of each report in its entirety on sexual and reproductive rights specifically. 21 We assigned every report a score for its quality of reporting under each of these four provisions and on sexual and reproductive rights (SRRs). By quality, we mean whether the government recognized shortcomings in implementation and/or compliance of that article. For example, if the state recognizes that its laws or policies fall short of fulfilling CCPR requirements for the right to privacy (i.e. the law discriminates in some way, or fails to fully provide a right to privacy), the report was scored for having recognized shortcomings in implementation of Article 17. This is different from recognizing shortcoming in compliance, by which we mean actual practices on the ground or outcomes, and not laws, policies, or institutions. For instance, if a state recognizes that there is unequal enjoyment of the right to freedom of expression (Article 19), even if relevant laws are not discriminatory in any respect, it was scored for having recognized a shortcoming in compliance. Reporting under each provision was also evaluated for whether the government outlined concrete and specific measures or programs to address the shortcoming in implementation or compliance. For example, if a government recognizes that a law implicating the right to privacy is deficient, it then further indicates how it is drafting a new law or considering a new bill to remedy this deficiency. Each report thus received a quality score on reporting under Articles 17 and 26 between 0 (only positive information) and 8 (recognized shortcomings and proposed specific remedies for both implementation of and compliance with both articles). Similarly, each report received a quality score between 0 and 8 for reporting under Articles 19 and 27 and between 0 and 4 for reporting on SRRs. Figure 5. Average State Report Quality to the Human Rights Committee. Figure displays average report quality under two sets of provisions (those referenced within Toonen (Articles 17 and 26) and those not (Articles 19 and 27)) over time. Quality scores range from 0 (only positive information) to 8 (recognized shortcomings and proposed specific remedies for both implementation of and compliance with both articles). 22 Finally, each report was assigned a responsiveness score on reporting under Articles 17 and 26 between 0 (does not reference any HRC concerns or recommendations) and 4 (acknowledges at least one concern of the treaty body with respect to each treaty provision and develops programs and approaches to address the concerns acknowledged). Similarly, each report received a responsiveness score between 0 and 4 for reporting under Articles 19 and 27 and a responsiveness score between 0 and 2 for reporting on SRR (see Appendix Table A2.3 for coding instrument). Figure 5 displays changes in average report quality (top panel) and responsiveness (bottom panel) for the first two sets of rights over time. Report quality and responsiveness under the two sets of provisions (those more and those less likely to reference LGBT rights issues) is relatively similar over time, suggesting that there is not anything sui generis about reporting quality and responsiveness under Articles 17 and 26. Figure 6. Average State Report Responsiveness to the Human Rights Committee. Figure displays average report responsiveness under two sets of provisions (those referenced within Toonen (Articles 17 and 26) and those not (Articles 19 and 27)) over time. Responsiveness scores range from 0 (does not reference any HRC concerns or recommendations) to 4 (acknowledges at least one concern of the treaty body with respect to each treaty provision and develops programs and approaches to address the concerns acknowledged). But why are some governments more transparent and responsive with respect to reporting under these provisions generally and SRRs specifically? We use panel data on report quality and responsiveness from 1977-2014 for all ICCPR states parties to identify some basic characteristics that contribute to better reporting (see Tables A2.3 and A2.4 for standard 23 ordered probit regression coefficients). First, wealthier and more democratic countries are more likely to submit higher quality information on Articles 17 and 26 generally and on SRRs. In contrast, a country s Polity IV score or GDP per capita is not associated with higher quality reporting under Articles 19 and 27. Second, for all sets of rights, the presence of an NHRI contributes to higher quality reporting, though this relationship is stronger for reporting under Articles 19 and 27 than for Articles 17 and 26, and even stronger relative to reporting on SRRs. Third, greater human rights commitment (measured by percentage of major human rights treaties ratified) is associated with higher quality reporting on freedom of expression and minority rights, but not with quality reporting on privacy rights, non-discrimination, or sexual and reproductive rights. In terms of responsiveness to Committee concerns, wealthier countries are more likely to address recommendations regarding Articles 17 and 26 within their reports, but are not any more or less responsive to recommendations on Articles 19 and 27 or SRRs. For all sets of rights, greater human rights commitment (measured by percentage of major human rights treaties ratified) is associated with greater responsiveness, although ratification of the First OP is associated with lower levels of responsiveness to recommendations under Articles 17 and 26 and SRRs. These findings should be interpreted with caution, particularly given that only fifteen of the 294 reports coded for responsiveness explicitly addressed recommendations on SRRs. These countries range from unexpected ones such as Russia, Yemen, and Kenya to countries we might expect to respond to such concerns such as Austria, the United Kingdom, and the United States. For instance, Austria explicitly addressed Committee concerns about Article 209 of the Criminal Law Code regarding illicit sexual practices of homosexuals below the age of 18 and indicated that this provision had since been revoked.41 Within its concluding observations on Greece s first periodic report, the HRC expressed concerns about reports of continued discrimination against individuals on the basis of their sexual orientation (arts. 17 and 26). 42 In its second periodic report, Greece responded by outlining ways in which it was attempting to combat such discrimination. 43 In contrast, the HRC urged in its concluding observations on Kenya s second periodic report the repeal of section of the criminal code, 44 which criminalizes homosexuality. Kenya responded by noting it could not presently decriminalize same-sex unions because such acts are considered as taboo and offences against “Article 209 of the Criminal Law Code—which applied neither to heterosexual nor to lesbian relations— banned men who had reached the age of 19 years from starting a sexual relation with a male person who had reached the age of 14 but not yet the age of 18 years. Article 209 thus set a minimum age of 18 years for consensual sexual relations between men, whereas a protected age of 14 years applied to heterosexual and lesbian couples.” Human Rights Committee, Fourth Periodic Report of Austria, UN Doc. CCPR/C/AUT/4 (20 November 2006), paras. 385-394. 42 Human Rights Committee, Concluding observations of the Human Rights Committee: Greece, UN Doc. CCPR/CO/83/GRC (25 April 2005), para. 19. 43 Human Rights Committee, Second Periodic Report of Greece, UN Doc. CCPR/C/GRC/2 (26 February 2014), paras. 24-29. 44 Human Rights Committee, Concluding observations of the Human Rights Committee: Kenya, UN Doc. CCPR/CO/83/KEN (29 April 2005), para. 27. 41 24 the order of nature which are repugnant to cultural values and morality. […] It must however be reiterated that the government does not discriminate against anyone in the provision of services. No one is ever required under the law to declare their sexual orientation under any circumstances. 45 Although the Kenyan government refused to consider decriminalization of homosexuality, the fact that it responded to this HRC recommendation implies that at the very least it was willing to acknowledge this shortcoming and engage in a dialogue about the criminal law status of same-sex relations. The fact that the HRC had opened the door to explicit discussion of the criminal law status of homosexual relations in Toonen made possible the focus within the periodic review process on this issue in Kenya as well as a range of other countries. 5. Conclusion The emerging conclusions in this chapter suggest some support for the idea that quasi-judicial decisions of UN human rights treaty bodies can generate significant effects on state practice. As the Toonen case from the UN Human Rights Committee suggests, some decisions have provided a remarkable political and symbolic resource for social movements and sympathetic political parties. There is clear evidence that the case had a partly transformative effect on LGBT politics in Australia, helped spark increased reporting by states on the theme, was cited by judges in some key decisions around the world and legitimized the advocacy of LGBT rights by international agencies. However, strong caution is warranted in adopting a too Panglossian view of the results. Comparing levels of compliance with twenty-five other UN quasi-judicial decisions against Australia, we found that successful implementation and impact is contingent upon particular factors. Moreover, the impact on state reporting may be largely confined to focusing on positive developments rather than the imposition of pressure to change practices, and the Committee itself did not engage with the issue in the dialogue with states until some time after the decision. Still, the impact of Toonen on the reporting practices of parties to the ICCPR is visible albeit indirect. States are focusing more on sexual orientation and LGBT rights issues within their reports than previously, and the quality and responsiveness of reporting on these issues is not any better or worse than that for reporting on other civil and political rights issues. Still, governments rarely discuss the criminal law status of homosexual relations within their reports, and those that do tend to note either recent de-criminalization or to justify the continued criminalization of homosexuality. This chapter has focused on various characteristics of states that might explain variation in levels of state reporting. However, one of the key factors that might explain the very slow turn of governments to addressing the issue of LGBT rights is the Committee itself. In a recent study, Gerber and Gory (2014) find a marked increase in comments and questions by Committee members between 2003-2013. This suggests that Toonen’s direct and indirect implications were only partially internalized and proceduralised in HRC practice. They Human Rights Committee, Third Periodic Report of Kenya, UN Doc. CCPR/C/KEN/3 (13 January 2011), para. 86. 45 25 suggest that the key change in the Committee s practice was the arrival of the first openly gay Committee member, Michael O Flaherty. He appears to have led the HRC towards more regular and focused questioning. This again underlines the importance of agents (whether domestic or international) for implementation of human rights decisions. 26 Annex 1. Initial Analysis on Comparative Compliance in Australia Logit Analysis – Compliance Level GOVERNMENT Intention: Will comply Model 1 2.52* Intention: Ambiguous 1.55* Sub-National Authority Change in Government APPLICANT REMEDY Model 2 Model 3 Model 4 Model 5 Model 6 Model 7 Model 8 2.25** 0.0 -2.45** Migrant: Non-National Ethnicity: Non-European Law Reform Compensation Recent Case -2.41* -0.51 -0.99 -0.67 -0.27 -1.55* -1.48 0.09 ***=X per cent level; **=5 per cent level; *=X0 per cent level. GOVERNMENT APPLICANT REMEDY Intention: Will comply Model 1 1.30 Intention: Ambiguous -0.08 Sub-National Authority Change in Government Migrant: Non-National Ethnicity: Non-European Law Reform Compensation Recent Case Model 9 3.22* Logit Analysis – Full compliance (Only Bivariate) Model 2 Model 3 Model 4 Model 5 Model 6 Model 7 Model 8 1.09 -2.1** -1.8* -2.7** -0.7* -18* -0.76 Annex 2. CCPR Periodic Review Analysis Table A2.1: Estimated Probability of Reporting under the Covenant on Civil and Political Rights (CCPR). Logistic odds regression, with report submission for a given year as the dependent variable. Model includes year fixed effects, with robust standard errors in parentheses. All variables lagged one year except Total Population. Table A2.2: Estimated Likelihood of Referencing different LGBTQ Rights Issues. Logistic odds regression, with LGBTQ rights issue reference in a report as the dependent variable in the first column, reference to the (non-)criminalization of homosexuality in the second column, and reference to LGBTQ rights not having to do with engaging in sexual relations explicitly in the third column. Model includes linear year time trend, with robust standard errors in parentheses. All variables lagged one year except Total Population. 30 Table A2.3: Correlates of Reporting Quality. Ordered probit regression, with reporting quality under Articles 17 & 26 as the dependent variable in the first column, reporting quality under Articles 19 & 27 in the second column, and reporting on sexual and reproductive rights issues in the third column. All variables lagged one year except Total Population. 31 Table A2.4: Correlates of Report Responsiveness. Ordered probit regression, with reporting responsiveness under Articles 17 & 26 as the dependent variable in the first column, responsiveness under Articles 19 & 27 in the second column, and responsiveness on sexual and reproductive rights issues in the third column. All variables lagged one year except Total Population. 32 Pre-Toonen: 1976-1994 Reference No reference Post-Toonen: 1995-2017 Criminalisation Non-Criminalisation Criminalisation Non-Criminalisation 3 (5%) 1 (1%) 11 (16%) 14 (7%) 54 (95%) 71 (99%) 57 (84%) 175 (93%) Table A2.5 References to criminal law status by actual criminal law status. 33 References Bernadi, G. (2001), 'From Conflict to Convergence: The Evolution of Tasmanian Antidiscrimination Law', Australian Journal of Human Rights 7(1): 134. Brinks, D. (2016), 'Solving the problem of (non)compliance in SE rights litigation', in M. Langford, C. Garavito-Rodriguez, and J. 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