A new UN report Born Free and Equal presents the UN’s new view that LGBT Rights are part of international human rights law. The report tells many grim stories of abuse – but equally, there are appealing pictures of gay parades and rainbow flags. Douglas Sanders reports.
At one point in the early 1990s, I approached the representative of Argentina in a meeting of the UN sub-commission on human rights. He knew that a local Geneva newspaper had run a small story of impending recognition of gay relationships in his country. That was why I wanted to talk to him, and he knew it. He quickly and accurately denounced the story as pure fiction. He then added: “I am a gay man. My government is opposed to what you are doing.” It was bold of him to offer a bit of solidarity. Yes I was gay. He was too.
The UN Human Rights Office has released a new publication on sexual orientation and gender identity in international human rights law. It sets out the source and scope of some of the core legal obligations that States have to protect the human rights of lesbian, gay, bisexual and transgender (LGBT) people. The 60-page booklet is designed as a tool for States, to help them better understand the nature of their obligations and the steps required to meet them, as well as for civil society activists, human rights defenders and others seeking to hold Governments to account for breaches of international human rights law.
The booklet focuses on five core obligations where national action is most urgently needed – from protecting people from homophobic violence, to preventing torture, decriminalizing homosexuality, prohibiting discrimination, and safeguarding freedom of expression, association and peaceful assembly for all LGBT people. For each, the basis of the State obligation in international human rights law is explained with reference to the substantial body of decisions, recommendations and guidance issued by United Nations human rights mechanisms. The booklet also includes examples of actions that can be taken at a national level to bring laws, policies and practices into line with applicable international human rights standards.
Now, of course, Argentina is the first country in South America with gay marriage, full adoption rights and the most progressive law anywhere on transsexual rights.
Progress at the UN on LGBTI rights was blocked for many years in the political bodies. In recent years, and still, there is an Islamic-Black African bloc that is active against any progress on these issues. Europe, Australia, New Zealand and Canada were supportive, but it was politically dangerous at the UN for any issue to be seen as purely “western.” There was usually no support from Asian governments. Pakistan and Malaysia were active, vocal, and loyal members of the Organization of Islamic Cooperation. They regularly spoke against us. The US was cool under Bush, abstaining rather than voting against us. But the numbers were shifting in our favour.
The first breakthroughs came in the “expert” parts of the UN human rights system. Independent experts were in place to monitor compliance with human rights treaties, or investigate particular pariah countries (Myanmar, North Korea) or consider various issues (such as the right to health, violence against women or extrajudicial and summary executions). The expert reports are sprinkled with references to LGBTI rights. The first time we got a vote in our favour in a UN political body was when opponents tried to discipline an expert for loose sex talk, and were defeated. The next victory in a political body was when an LGBT lobby group was granted “consultative status”, giving rights to attend UN human rights meetings, lobby, and occasionally speak.
Fast forward. In June, 2011, the UN Human Rights Council, a political body where representatives follow government orders, narrowly passed a resolution expressing “grave concern” with human rights abuses against LGBT individuals.
For political reasons, it was good that there was support for the resolution from each of the five official UN ‘regions’ (though, in truth, the initiative was driven by a new Western-Latin American alliance, with Brazil and Argentina playing lead roles).
The 2011 resolution authorised the Office of the UN High Commissioner for Human Rights to prepare a report on the issues involved. The High Commissioner, Navi Pillay, a judge from South Africa, was already on side. We knew that the report would be good. To the surprise of some of us, the UN Secretary General, Ban Ki moon, from South Korea, began making statements supporting our rights. The UN executive (the ‘secretariat’) had joined the UN experts in publicly supporting us.
Our opponents at the UN keep talking against “new rights” that, they said, had not been approved in any UN human rights decision. The new report begins with the assertion that no “new rights” are involved:
The case for extending the same rights to lesbian, gay, bisexual and transgender (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated. It rests on two fundamental principles that underpin international human rights law: equality and non-discrimination. The opening words of the Universal Declaration of Human Rights are unequivocal: “All human beings are born free and equal in dignity and rights.”
Doug Sanders is a retired Canadian law professor, living in Bangkok. He can be contacted at email@example.com.
by Douglas Sanders
Source – Fridae