On Human Rights, Democracy and Dignity: The Legitimacy Problem of a Plebiscite on Same-Sex Marriage

Dr Luis Gómez Romero


Last week, the Australian government introduced a bill into parliament aimed at establishing the structure and mechanics of a plebiscite on whether Australia should legalise same-sex marriage. The question to be put to voters will be:

Should the law be changed to allow same-sex couples to marry?

Public funding will be provided to two committees to run a “yes” and “no” campaign. Each committee will be made up of ten members: five MPs and five members of the public. The committees will each be given $7.5 million from the government to support their advertising campaigns in the four weeks leading up to the plebiscite. In addition, the committees will be able to accept donations, but they will only be tax deductible up to a cap of $1,500.

The bill has been received with harsh criticism from several political fronts. The Greens announced their opposition to the plebiscite bill. Bill Shorten had introduced a bill earlier in the week which would have the matter decided by parliament. He accused Michael Turnbull of having “no idea of the harm” a plebiscite would cause “on so many people and their families.” Shorten is thus expected to recommend Labour block the legislation. Liberal senator Dean Smith – who is openly gay – also declared that he will not vote for the plebiscite, but he did this for a very different reason: he regards it as an experiment alien to the Australian constitutional system of parliamentary democracy.

When moving the plebiscite bill in the lower house, Turnbull argued that it was a “thoroughly democratic” way to resolve the issues of conscience related to same-sex marriage. He claimed that opponents were simply concerned the plebiscite would “run the risk of the Australian people giving them the wrong answer.” In Turnbull’s view, however, the answer given by the Australian public to the plebiscite question, “whether it is yes or no, will be the right answer.”

There have also been voices that have supported the plebiscite as the lesser evil in an imperfect world. Professor Graeme Orr, for example, has argued that “[w]e don’t have to love a process or think it ideal to make the most of it.” According to Orr, sometimes there is an issue that representative government “fails to resolve, and which is simple and discreet [sic] enough that a plebiscite is a second-best way through the impasse.” Same-sex marriage would be an issue of this kind.

Mainstream arguments for and against the plebiscite can be summarised in the positions that the two major political parties hold on it. Turnbull said the two arguments that had the “most weight” against the plebiscite were that it was “not part of our traditional parliamentary process” and its cost. Nonetheless, he rejected the view that “Australians cannot be trusted to have a civil conversation, that the Australian public are so immature, so unbridled, so reckless that they cannot be trusted to have a debate.” Shorten, on the contrary, seems to be concerned about the nasty homophobic hate speech a “no” campaign may entail. He said that the decision to include public funding “to give a platform to bigotry shows no interest from the government to work with Labour on this.”

Both Turnbull and Shorten, however, are missing the real legitimacy problem around the plebiscite. As surprising as this may seem, in order to legally enable people under Australian jurisdiction to marry whoever they want, it is irrelevant if Australians are champions of progressive politics or support substantive conservative views on marriage and family. The real question we should be asking is if it is legitimate for the majority of Australian people to vote on potentially excluding a minority from basic human rights.


Freedom and Equality of Marriage as Basic Human Rights

Freedom and equality of marriage are basic human rights. According to article 16 (1) of the Universal Declaration of Human Rights (UDHR):

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Discrimination on the basis of race, nationality or religion is hence specifically forbidden regarding marriage. These are not, however, the only grounds on which discrimination related to marriage is currently forbidden under international human rights law. Article 2 of the UDHR also prohibits any sort of discrimination in the enjoyment of rights and freedoms otherwise set forth in it:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The International Covenant on Civil and Political Rights (ICCPR) similarly recognises the rights to freedom and equality of marriage (article 23(2)), and forbids any form of discrimination both specifically in relation to the rights set in the Covenant (article 2 (1)) and generally regarding the protection against harm and arbitrariness that individuals should be granted under the rule of law (article 26). It is therefore important to understand what the prohibition of discrimination actually means in relation to marriage under international human rights law.

The UDHR recognises a series of rights that were explicit responses to the nazification of the German legal system under Adolf Hitler’s Third Reich (1933-1945).[1] Article 6, for example, establishes that “[e]veryone has the right to recognition everywhere as a person before the law.” In other words, everyone is entitled to the ability to be a bearer of rights, obligations and responsibilities.

This was an unusual right in the 1940s, so the usefulness of its inclusion in the UDHR was repeatedly questioned. The French delegate René Cassin – who was one of the key drafters of the Declaration – explained that the article was necessary because under totalitarian legal systems “persons existed who had no legal personality.”[2] The recognition of legal personality lays down the principle that “everyone has the right to enjoy fundamental civil rights,” and is therefore directed “against modern forms of slavery.”[3] In Cassin’s view, “there would have been no need to reaffirm that a human being could not constitute the property of another human being, had not certain heads of state such as Hitler, sought in the last ten years to revive the ancient idea that an individual considered as a slave had no right to marry, to be a creditor or to own property.”[4]

The rights to freedom and equality of marriage are therefore corollaries to the general right to legal personality, which in turn was a reaction to Nazi law. The Nuremberg Laws that were introduced by the Reichstag (the German parliament) on 15 September 1935 forbade marriages and extramarital intercourse between Jews and Germans.[5] The laws were expanded on 26 November 1935 to include Romani people and Afro-Germans. Persons suspected of having sexual relations with non-Aryans were charged with Rassenschande (literally, “racial shame”) and tried in the regular courts.

Hitler had claimed in his infamous Mein Kampf that marriage was not a human right. “No,” Hitler argued, “there is only one holiest human right, and this right is at the same time the holiest obligation, namely: to see to it that the blood is preserved pure.”[6] In Hitler’s view, it was hence the State’s duty “to lift marriage out of the level of permanent race degradation in order to give it the consecration of that institution which is called upon to beget the images of the Lord and not deformities half-man and half-ape.”[7]

This is the historical reason that impelled the Mexican delegation to the Third (Drafting) Committee[8] to submit a proposal to insert in the first sentence of article 16 (which was article 14 in the Draft International Declaration of Human Rights[9]) the clause “without any limitation due to race, nationality or religion.”[10] In other words, the UDHR specifically forbids discrimination in relation to marriage because of the awareness raised by the Nuremberg Laws on the importance of explicitly establishing universal rights to freedom and equality of marriage. The Mexican delegate Pablo Campos Ortiz justified the Mexican amendment in the following terms:

Mr. CAMPOS ORTIZ (Mexico) said he realized that the prohibition against discrimination which he proposed to add […] was a repetition of article 2. Admittedly, that technical objection existed; but he was convinced that certain ideas should be repeated again and again if the need arose. The prohibition against discrimination, which had always been observed in Mexican history and law, would strengthen the article immeasurably in the eyes of the common man. The declaration was addressed to the common man, not to diplomats and technicians. He urged that the value of such an appeal should override the technical objection. There had been notorious cases of discrimination in marriage, particularly by the Nazis. To repeat the prohibition would strengthen the immediate appeal of the article.[11]

The Mexican amendment was warmly received by several delegates. Alexei Pavlov, the Soviet delegate, pointed out that this proposal was “most opportune” because “in certain parts of the United States, for example, mixed marriages were heavily penalized.”[12] Bodil Begtrup, the Danish delegate, pointed out that the Mexican amendment “made the text of the article clearer and more easily understandable to everyone.”[13] Minerva Bernardino, the delegate from the Dominican Republic, said that the Mexican amendment “was based on the most elementary human justice.”[14] Fryderyka Kalinowska, the Polish delegate, stated that her delegation would vote in favour of the Mexican amendment “because it introduced a fundamental idea inherent in a true concept of democracy.” Since “discrimination of one type led to another,” the Polish delegation thought it logical “to condemn, together with discrimination on grounds of sex, all other forms of discrimination that might affect freedom in marriage.”[15]

In sum, the Nazi discriminatory marriage laws and practices were so abhorred by the drafters of the UDHR that they broke with their policy of not repeating the prohibition of Article 2 and adopted the Mexican amendment by 22 votes to 15 (with 6 abstentions).[16] It is the only outright exception they made to this policy.[17]

The arguments advanced by some of the drafters of the UDHR on the prohibition of discrimination in relation to the rights to freedom and equality of marriage clearly apply to same-sex marriage by analogy. Analogical reasoning plays a very important role in law to resolve issues on which there is no previous authority. Paraphrasing Mrs Kalinowska, as discrimination of one type usually leads to another, it is logical to acknowledge, in positive terms, the right of individuals to marry whoever they want regardless their sexual orientation or, in negative terms, to condemn discrimination against individuals of a specific sexual orientation that affects freedom in marriage.[18]

The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity – developed at a meeting of the International Commission of Jurists, the International Service for Human Rights and other human rights experts at Gadjah Mada University in 2006 – thus correctly identify the recognition of the diversity of families, marriage and other affective partnership forms as a normative principle that necessarily informs the application of international human rights law in relation to sexual orientation and gender identity. In terms of Principle 24 (on the right to found a family), the states shall:

Ensure that laws and policies recognise the diversity of family forms [… and] Take all necessary legislative, administrative and other measures to ensure that in States that recognise same-sex marriages or registered partnerships, any entitlement, privilege, obligation or benefit available to different-sex married or registered partners is equally available to same-sex married or registered partners.

In other words, under international human rights law Australia has the obligation to recognise the right of individuals under its jurisdiction to marry whoever they wish regardless of their sexual orientation and to take all necessary measures to make this possible. The fact that freedom and equality of marriage have not been yet implemented in these terms in Australian law highlights the current relevance of Angadipuram Appadorai’s views on the tenacity of discrimination. Dr Appadorai was the Indian delegate to the Third (Drafting) Committee of the UDHR. He argued that the Mexican amendment was not radical enough to prevent discrimination regarding marriage. “While approving its underlying principles,” Dr Appadorai pessimistically noted, “the Indian delegation did not believe that the Mexican amendment would be sufficient to abolish all discrimination.”[19]


Australian Approaches to the Prohibition of Non-Discrimination under the International Bill of Human Rights

Both the UDHR and the ICCPR are constitutive parts of the International Bill of Human Rights.[20] Australia was one of eight main states involved in drafting the UDHR, which was adopted by the United Nations General Assembly in Paris on 10 December 1948. During the procedures around the drafting of the UDHR, however, Australia voted against the Mexican amendment on explicitly prohibiting discrimination in relation to the rights of freedom and equality of marriage established in article 16 of the UDHR.[21]

Australia also agreed to be bound by the ICCPR on 13 August 1980, subject to certain reservations. Among these reservations, Australia originally accepted Article 26 of the ICCPR on the basis that the object of the provision was merely to confirm the right of each person to equal treatment in the application of the law.

In other words, Australia only committed itself to formally apply the law in equal terms to everyone, even if a specific provision substantively discriminated between different classes of individuals on prohibited grounds. This form of protection against discrimination is deeply flawed as it enables the state, for example, to enact special detrimental laws against people of a specific race. An apartheid regime could easily avoid accusations of discrimination by claiming – building on this example – that a law that imposes harsher measures of surveillance and punishment on people of a specific race who consume alcohol is not discriminatory because it is consistently applied among those individuals who have the required (oppressed) racial background, while alcohol consumers from other (privileged) racial backgrounds are consistently exempted of such a strict treatment.[22]

On 6 November 1984, however, Australia withdrew this reservation to the ICCPR. Even though Australia’s international commitments are inconsistent with its domestic constitutional regime,[23] today it should be clear that Australia has accepted before other states in the international community to respect a right to non-discrimination vis-à-vis persons within its jurisdiction.

Australia is therefore formally bound, under international human rights law, to respect, protect and fulfil the right to freedom of marriage without discrimination against individuals of a particular sexual orientation. There is another major problem in relation to the implementation of international human rights law in Australia though. Unless made into domestic law, international human rights law has no legal force in Australia. The traditional Australian view on international human rights law is still that expressed in 1945 by Latham CJ, who noted that “courts are bound by the statute law of their country, even if that law should violate a rule of international law.”[24]

On paper, Australia has ratified the most important human rights treaties negotiated by the international community. Yet, in practice, it has recurrently failed to implement the majority of these treaties into domestic law.[25] Worryingly, there is an increasing disconnection between the high standards Australia professes to pursue and the iniquitous laws and policies implemented by governments that have the effect of eroding human rights or denying Australia’s obligations under international law.[26]

The multiple and virtually insurmountable obstacles for the implementation of the substantive prohibition of discrimination – or its positive counterpart, a substantive right to equality – in Australian domestic law cannot be thoroughly addressed in a blog entry.[27] It should suffice to note, in relation to discrimination on the grounds of sexual orientation, that the UN Human Rights Committee found Australia in breach of the ICCPR as late as 1994 – that is, fourteen years after Australia became a party to this treaty – because Tasmanian laws still criminalised at that time consensual sex between adults.[28] The Committee’s views resulted in the repeal of Australia’s last sodomy laws.

The criticism of UN treaty bodies on Australian laws and policies, unfortunately, has not always been received with similar moral and persuasive authority. Last year, Juan E. Méndez – the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment – reported that Australia has systematically violated the right of asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[29] In response to the scathing criticism of the Special Rapporteur on Australian laws and policies on asylum seekers and refugees, the then-prime minister Tony Abbott simply complained that “Australians are sick of being lectured by the UN.”

It has been no surprise hence that Australia’s second appearance before the UN Human Rights Council’s Working Group on the Universal Periodic Review (UPR) resulted in 140 delegations commenting on Australia’s human rights record and the submission of 290 recommendations by the members of the UPR Working Group on topics that range from the dreadful treatment of asylum seekers to forced sterilisation of persons with disabilities. In relation to discrimination on the grounds of sexual orientation, Iceland, the Netherlands, Spain and Sweden recommended Australia to revise its legislation in order to ensure full equality with respect to marriage.[30] It is worth noting that the Australian government did not plainly accept these recommendations, holding instead that full implementation of freedom and equality of marriage is “pending the outcome of the plebiscite.”[31]

This is not a sound way to address the recommendations that Australia received in relation to same-sex marriage after undergoing the UPR procedure. If the plebiscite is finally carried out, the Australian people will vote on including or excluding from enjoying freedom and equality of marriage those individuals of a sexual orientation different from heterosexuality. This means that the plebiscite expects the Australian people to vote on potentially repudiating a basic human right that Australia has already formally accepted to respect, protect and fulfil through several international human rights instruments. The plebiscite therefore amounts to a violation of human rights that denies the dignity of those individuals who, precisely because of their sexual orientation, have been denied equal protection of law over their sexual and affective partnerships.


On Democracy, Dignity and Human Rights

“Democracy” is among the most contested and promiscuous terms in modern political vocabulary.[32] The Greek etymology Demos/kratia translates as “people rule” or “rule by the people.”[33] The promise of the modern democratic state is to secure inclusion, equality and freedom as dimensions of popular sovereignty.[34] Democracy, however, is always haunted by the problems of determining who “the people” is and how it is supposed to rule. In simple practical terms, this problem has been solved by the basic democratic principle that establishes that, where there cannot be universal agreement, matters should be settled according to the will or wishes of the majority.[35]

The majority rule is not unlimited though. There are some matters that paradoxically need to be defended from the majority in order to preserve democracy. In this sense, Jacques Rancière claims that “[d]emocracy can never be identified with the simple domination of the universal over the particular.”[36] Democracy, on the contrary, entails an incessant reconfiguration of the spheres of the public and the private, the universal and the particular, majority and minorities. The “power of the people” is not the power of the majority, but the “equality of capabilities to occupy the positions of governors and of the governed.”[37] Rancière thus defines democracy as “the power of those who have no qualification for exercising power.”[38] In other words, democracy’s ideals of equality and freedom necessarily imply “the count of the uncounted” or “the part of those who have no part” in the distribution and enjoyment of political, economic and social goods.[39]

Human rights are accordingly the rights of the “uncounted” or, as Luigi Ferrajoli puts it, a “law for the weakest” (legge del più debole).[40] This means that, on the one hand, human rights are the rights of those who are substantively deprived of formally acknowledged rights (this is the case, as it has been shown above, of the neglect to fully incorporate into domestic law, regardless the sexual orientation of individuals, the rights to freedom and equality of marriage in Australia) and, on the other hand, the rights of those who are formally deprived of a right, but nonetheless substantively exercise it as if it had been formally acknowledged (this is the case, for example, of those individuals who use freedom of speech to denounce dictatorships that prevent and proscribe freedom of speech).[41]

Human rights, in sum, only have relevance as “the rights of those who have not the rights that they have and have the rights that they have not.”[42] This is the reason why human rights are both revolutionary and counter-majoritarian. Human rights aim at limiting power even in democracies that supposedly grant power to the majority. Article 1 of the UDHR therefore proclaims that “[a]ll human beings are born free and equal in dignity and rights”. The majority cannot decide on matters that, as sexual orientation or sexual preferences, only concern to an individual’s dignity.

The notion of dignity that informs international human rights law is built upon Immanuel Kant’s moral theory. Kant conceived dignity as a moral imperative that guides the actions of individuals by granting them an incontestable, unconditioned and unnegotiable inner worth. Kant formulated the imperative of dignity in the following terms: “Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.[43]

In other words, dignity provides us with a sphere of freedom to choose the ends for which we live our lives. Dignity also imposes moral duties on us: it demands from us both to accept responsibility for the ends we freely choose to pursue in our life, and to not use other individuals as mere means for our own ends.

In relation to sexual orientation, dignity involves the freedom of mature and capable individuals – that is, consenting adults – to live their sexuality in the form they wish to, without being subject to the potentially whimsical will or the potentially idiosyncratic judgement of powers of any sort. Dignity also implies the freedom to love and care for those we choose without depending on the grace or being vulnerable to the caprice of others. Regardless of our sexual orientation, we should recognise that there is dignity in living our sexuality and affects as we please even when we are told we should not; and facing the challenges of love, of confidently opening ourselves to other persons, even when we are told we cannot. A plebiscite on same-sex marriage would destroy this dignity by perversely applying the majority rule on a matter that demands emancipation from any form of subordination, and liberation from any form of dependency.

The acknowledgement of the dignity of individuals has major consequences for any conception of democracy. The majority in a democracy cannot use individuals as mere means for ends they have not consented without crushing their dignity. The UDHR, by founding human rights upon dignity, refutes the conception of democracy as a political system based on a series of rules that ensure the omnipotence of the majority. Human rights hence necessarily limit the idea of supremacy of parliament, but they do so in order to protect minorities from the tyranny of the majority. We can establish, drawing from Luigi Ferrajoli’s theses on the complex nexus between democracy and human rights, that if the rules that govern representation and the principle of majority are formal norms with regard to what the majority can decide (sfera del decidibile), then human rights circumscribe what we can call the sphere of the undecidable (sfera dell’indecidibile): of the positive undecidable, i.e., of the prohibitions that correspond to civil and political rights, and of the negative undecidable, i.e., of the public obligations corresponding to economic and social rights.[44]

Let us try to make sense of this formula. The point of having a human right is to get a moral claim protected by law in such a way that factual – political, economic or social –powers cannot encroach upon it.[45] Human rights provide dignity to individuals by both granting them freedom to decide the way in which they want to live their lives and ensuring that they will have the basic material means to achieve their life plans. This means that, in the case of civil and political rights, the majority – either in a plebiscite or the parliament – should not decide to, for example, eliminate the prohibition of torture or legalise indefinite detention. It also means that, in the case of economic and social rights, the majority – either in a plebiscite or the parliament – should not decide not to, for example, grant individuals equal access to education or health services.

A plebiscite on same-sex marriage would ironically lack democratic legitimacy because it refers to a matter of human dignity inscribed in the sphere of the undecidable. Majorities should not decide to deny people of a sexual orientation different from heterosexuality the rights to equality and freedom of marriage. In a democracy, the majority rules – as Henry David Thoreau points out –, “not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest.”[46] Providing the majority power to decide “in all cases” hence “cannot be based on justice, even as far as men understand it.”[47] The principle of dignity that morally informs human rights effectively subverts both the majority rule and the idea of the supremacy of parliament in such a way that, in relation to human rights, we can claim along Thoreau: “[A]ny man more right than his neighbours constitutes a majority of one already.”[48]


Conclusion: Why Oppression Is Not Appealing Even When Presented in a Democratic Guise

In Australia, challenging not only the democratic majority rule, but also traditional conceptions of parliamentary supremacy amounts to severe juridical heresy. Human rights, however, are precisely meant to be vehicles of heresy: their aim is to unsettle established traditions and facilitate the revolt of the excluded. Paraphrasing George Orwell we can say that if human rights mean anything at all today, they mean the legal and political means to dispute established structures of power and contest unjust frames of human coexistence as they have been given to us.[49]

Mr Turnbull is wrong when he claims that the answer given by the Australian public to the plebiscite question on same-sex marriage, “whether it is yes or no, will be the right answer.” In formal legal terms, neither the Australian public nor the parliament have legitimate power to exclude people of a sexual orientation different from heterosexuality from basic human rights that Australia has already granted to individuals under its jurisdiction through international human rights instruments it has adopted and ratified. In substantive moral terms, neither the Australian public nor the parliament have legitimate power to ravage the dignity of some individuals by denying them freedom and equality of marriage on the basis of their sexual orientation.

The simplest and most effective way to implement same-sex marriage in Australia consists in having the parliament modify the current legislation in order to make domestic law consistent with Australia’s obligations under international human rights law. We can arguably claim that this was the mandate that Australian people gave their representatives both in the last election and at the time of adopting the UDHR and ratifying the ICCPR. The Australian government thus deserves from the Australian people, as a response to its plebiscite proposal, the powerful reflection furthered by Alexis de Tocqueville on the potential tyranny of majorities that constantly haunts democracies: “For myself, when I feel the hand of power lie heavy on my forehead, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million men.”[50]


[1] Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press, 1999) 43 ff.

[2] Drafting Committee on an International Bill of Human Rights, Summary Record of the Fourth Meeting, 1st Session, 4th Meeting, UN Doc E/CN.4/AC.1/SR.4 (12 June 1947), 6.

[3] Drafting Committee on an International Bill of Human Rights, Summary Record of the Thirty-Seventh Meeting, 2nd Session, 37th Meeting, UN Doc E/CN.4/AC.1/SR.37 (18 May 1948), 3.

[4] Ibid. Emphasis added.

[5] The two Nuremberg Laws were the “Law for the Protection of German Blood and German Honour” (Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre) and the “Reich Citizenship Law” (Reichsbürgergesetz).

[6] Adolf Hitler, Mein Kampf (Zentralverlag der Nationalsozialistische Deutsche Arbeiterpartei, 1940) 444. All translations are mine unless otherwise indicated.

[7] Ibid, 445

[8] At its 142nd meeting on 24 September 1948, the General Assembly referred the Draft International Declaration of Human Rights to the Third Committee.

[9] Commission on Human Rights, Annex A: Draft International Declaration of Human Rights, 3rd Session, UN Doc E/800 (28 June 1948).

[10] Third Committee, Draft International Declaration of Human Rights: Amendments to Articles 3, 6, 7, 14, 23 And 25 of the Draft Declaration (E/800)/Mexico, 3rd Session, UN Doc A/C.3/266 (12 October 1948) 1.

[11] Third Committee, Draft International Declaration of Human Rights (E/800), 3rd Session, 124th Meeting, UN Doc A/C.3/SR.124 (6 November 1948) 264. Emphasis added.

[12] Ibid, 265.

[13] Third Committee, Draft International Declaration of Human Rights (E/800), 3rd Session, 125th Meeting, UN Doc A/C.3/SR.125 (8 November 1948) 367.

[14] Ibid, 369.

[15] Ibid, 370-371. Emphasis added.

[16] Ibid, 375.

[17] Morsink, above n 1, 89.

[18] In general terms, this is the way in which the European Court of Human Rights has interpreted the nexus between articles 8 (right to private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the European Convention on Human Rights. Even though the Court has recently established in Chapin and Charpentier v France [2016] ECHR 504 that states have no obligation to open marriage to homosexual couples, this does not mean – as some conservative commenters claim – that there is not an analogous human right to freedom and equality of civil partnership under the European Convention. This decision needs to be read along Vallianatos & Ors v Greece [2013] ECHR 1110 and Oliari & Ors v Italy [2015] ECHR 716. In these cases, the Court respectively found that limiting the availability of civil partnerships only to different-sex couples (in Greece), or neglecting to provide any form of legal recognition to same-sex relationships (in Italy) were violations of article 8 in conjunction with article 14. The Court therefore expects states parties to provide proper legal recognition of some kind to same-sex partnerships, even if it is not yet prepared to go so far as to oblige them to introduce marriage on equal terms for different-sex and same-sex couples.

[19] Third Committee, above n 13, 371-372.

[20] The International Bill of Rights consists of the UDHR, the ICCPR with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights.

[21] Third Committee, above n 13, 375.

[22] Unfortunately, this example is not a product of my warped academic fantasy after being cloistered for several years in the ivory tower, but a reflection of actual Australian legislation. See the Northern Territory National Emergency Response Act 2007 (Cth) and the Stronger Futures in the Northern Territory Act 2012 (Cth).

[23] See, for example, the interpretation of s 51 (xxvi) of the Australian Constitution – i. e., the so-called race power – advanced by the High Court in Kartinyeri v Commonwealth (1998) 195 CLR 337.

[24] Polites v Commonwealth (1945) 70 CLR 60, 69.

[25] See, for example, Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 64 ff; and Caroline Fleay, Australia and Human Rights: Situating the Howard Government (Cambridge Scholars, 2010).

[26] Prince Zeid Ra’ad Zeid Al-Hussein – the current UN High Commissioner for Human Rights –, for example, has signalled Australia as a country of concern considering its appalling human rights performance in the last years. The High Commissioner specifically criticised “its policy of off-shore processing for asylum seekers arriving by sea, and its interception and turning back of vessels”, which “is leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries.” See Zeid Ra’ad Al-Hussein, ‘Opening by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, at the Human Rights Council 27th Session’ (Speech delivered at the opening of the Human Rights Council 27th Session, Geneva, 8 September 2014).

[27] Dawson J, for example, established that “[i]t may be observed that a degree of equality was lacking in the free agreement [… that resulted in the Australian Constitution], in that the referendum expressing that agreement excluded most women and many Aboriginals […] the important thing is that the Constitution to which the people agreed plainly envisages inequality in the operation of laws made under it.” See Kruger v Commonwealth (1997) 190 CLR 1, 67.

[28] Human Rights Committee, Communication No. 488/1992, 50th sess, UN Doc CCPR/C/50/D/488/1992 (4 April 1994) (Toonen v Australia)

[29] Human Rights Council, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez: Addendum-Observations on Communications Transmitted to Governments and Replies Received, 28th sess, Agenda Item 3, UN Doc A/HRC/28/68/Add 1 (6 March 2015) [16-31].

[30] Working Group on the Universal Periodic Review of the Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, 31st sess, UN Doc A/HRC/31/14 (13 January 2016) [136.220, 136.222-136.224].

[31] Working Group on the Universal Periodic Review of the Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia: Addendum: Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, 31st sess, UN Doc A/HRC/31/14/Add. 1 (29 February 2016) [40-41].

[32] Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015) 19.

[33] Ibid. See also Anthony Arblaster, Democracy (Open University Press, 3rd ed, 2002) 59 ff.

[34] Brown, above n 32, 42.

[35] Ibid, 67.

[36] Jacques Rancière, La Haine de la Démocratie (La Fabrique, 2005) 69.

[37] Ibid, 56.

[38] Jacques Rancière, “Who is the Subject of the Rights of Man?” (2004) 103 South Atlantic Quarterly 296, 304

[39] Ibid, 305.

[40] Luigi Ferrajoli, Principia Iuris: Teoria del Diritto e della Democrazia (Laterza, 2007) vol 2, 57-62.

[41] Rancière, above n 38, 304.

[42] Ibid, 302.

[43] Immanuel Kant, Grundlegung zur Metaphysik der Sitten, in Preußischen Akademie der Wissenschaften (ed), Gesammelte Schriften (Georg Reimer, first published 1785, 1903 ed), vol 4, 385, 429.

[44] Ferrajoli, above n 40, vol 1, 819-824.

[45] This is, mutatis mutandis, the idea behind the Dworkinian conception of rights as trumps. See Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978) ix.

[46] Henry David Thoreau, ‘On the Duty of Civil Disobedience,’ in Cynthia Brantley Johnson (ed), Walden or, Life in the Woods and On the Duty of Civil Disobedience (Pocket Books, first published 1849, 2004 ed) 361

[47] Ibid

[48] Ibid, 371

[49] See George Orwell, “The Freedom of the Press” (15 September 1972) Times Literary Supplement 1037

[50] Alexis de Tocqueville, De la Démocratie en Amérique (Garnier-Flammarion, first published 1840, 1981 ed) vol 2, 19.


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