Post written by April Mckenzie, JD candidate 2017

There are currently seven countries in which homosexuality may be punishable by death. Five of the seven countries are heavily religious. Currently there is little in international law that expressly prohibits these countries from having laws against homosexuality. With the exception of the Charter on Fundamental Rights of the European Union, there is nothing explicit on sexuality or sexual rights in any major human rights instruments, such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economical Social and Cultural Rights (ICESR), European Convention on Human Rights (ECHR), or the American Convention on Human Rights (ACHR). Thus, the UDHR and the human rights conventions do not expressly protect LGBT rights. But it has been repeatedly argued that sexuality rights are implied through a penumbra of the UDHR, ICCPR, ECHR, and ICESCR, specifically under those articles guaranteeing (a) the right to privacy, (b) the right to equality and non-discrimination, (c) the right to freedom of expression and information, (d) the right to freely assemble and to form associations, (e) the right to life, and (f) the right not to be treated in a cruel, inhuman, or degrading manner.

The United Nations Universal Declaration of Human Rights, the foundational instrument on human rights, and major human rights treaties, proclaim the right of every individual to be protection from deprivation of life. These instruments state that no one shall be subjected to cruel or degrading punishment. Although the death penalty may not violate fundamental human rights obligations in all cases, international law does limit the death penalty only to the most serious offenses. Article 6(2) of the ICCPR, provides:

 In countries which have not abolished the death penalty, sentence of death may be   imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.  (Emphasis added.)

Carrying out the death penalty on individuals for homosexuality violates this obligation. Under no circumstances can homosexuality—a status—be considered one of “the most serious crimes” within the meaning of article 6(2). Furthermore, if there exists no specific International Human Rights law that is expressed through treaty preventing a country from prosecuting individuals for homosexuality, one could argue that under the treaties making up the Bill of International Human Rights this prosecution violates the fundamental norms of human rights based on the right to life, and all other implied rights establishing sexuality rights discussed above.

For further proof that these seven countries are violating International Human Rights principles one can look to state practice. According to Amnesty International, 140 countries have abolished the death penalty in law or in practice. Out of the remaining 43 countries, only seven have the death penalty for homosexuality. Considering that approximately 80 countries in the world, including the seven countries with capital punishment, criminalize homosexual contact, it is evident that the right to sexuality is a heavily debated issue. It is also evident that sexual rights have not yet achieved world consensus and recognition. Although the right to determine and practice one’s own sexuality is debated, it is evident that the ICCPR, other human rights conventions, and state practice overwhelmingly demonstrate that carrying out capital punishment for the “crime of homosexuality” violates international law.

Under the Charter of Fundamental Rights of the European Union (2009), the 28 European Union countries have banned discrimination on the basis of “sexual orientation” (article 21).  Furthermore, European countries apart from the European Union have held that prosecution of an individual for the sexuality is a violation of Human Rights. Adding the recent decision by the United States Supreme Court that Marriage Equality allows for same sex couples to enjoy the rights and benefits of marriage under law, one can argue that the right to love and be with someone of the same sex has begun to crystalize into customary international law. The next question is if these sexual rights are starting to crystalize into customary law, what does that mean for those seven countries with the death penalty?