Guest blog by John Fisher, ARC International*
“It is not called the ‘Partial’ Declaration of Human Rights,” UN Secretary General Ban Ki-moon underlined at a World Human Rights Day panel on Ending Violence and Criminal Sanctions based on Sexual Orientation and Gender Identity. “It is not the ‘Sometimes’ Declaration of Human Rights.”
The Secretary General reminded us that Human Rights Day honours “the Universal Declaration, guaranteeing all human beings their basic human rights – without exception” and – pledging to put himself “on the line” to defend these principles – concluded: “Together, we seek the repeal of laws that criminalize homosexuality.”
The Secretary General’s reminder could not be more timely. Just last month, UN Member States voted to remove “sexual orientation” from a resolution calling on States to protect groups targeted for extrajudicial executions and other unlawful killings.
The decision to remove sexual orientation from the resolution flies in the face of overwhelming evidence that people are routinely killed in countries around the world because of their actual or perceived sexual orientation or gender identity. With dismal regularity, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has documented cases of individuals facing the death penalty for consensual same-sex conduct, of the death in custody of people assumed to be lesbian, gay, bisexual or transgender as a result of abuse, of beatings of LGBT persons and subsequent denial of medical treatment, of unlawful killings of assumed homosexuals by paramilitary groups as part of “social cleansing” campaigns, of persons murdered with impunity by police officers because of their assumed sexual orientation or gender identity, and of the failure to investigate hate crimes and killings on these grounds.
Yet, when the extrajudicial executions resolution was last considered at the UN Human Rights Council, one influential State bluntly stated that killings based on sexual orientation do not warrant the same degree of concern as killings based on race, and deplored attempts to include “peripheral issues which fall entirely outside the purview of human rights protection”.
The time is overdue for the Human Rights Council to take up its responsibility to address these human rights violations. At a time when the Council is immersed in a “review of its work and functioning”, its credibility will be judged not by its success in promoting human rights for the popular, but by its ability to protect disadvantaged groups which are often situated on the margins of international human rights protection.
Still, there are signs of progress. A joint statement on human rights, sexual orientation and gender identity was first presented by New Zealand at the former Commission on Human Rights in 2005 on behalf of 32 States, then by Norway at the Council in 2006 on behalf of 54 States, and recently by Argentina at the General Assembly in 2008 on behalf of 66 States (now 68, with the additional support of Costa Rica and the USA). In addition to the measurable increase in support, the GA joint statement was also the first to attract support from all 5 UN regions, including 6 States from the African region.
At a General Assembly side event last year, the Holy See issued a welcome statement calling for an end to criminal laws against homosexuality, and the GA joint statement was cited by the Delhi High Court in its recent judgment to decriminalise same-sex activity between consenting adults in India. More than a dozen UN Special Rapporteurs regularly integrate sexual orientation and gender identity issues within their work. The latest report of the Special Rapporteur on Health sparked the first-ever UN discussion on the decriminalisation of homosexuality.
The ECOSOC has consistently overturned blatantly discriminatory decisions by its own NGO Committee, thereby granting UN consultative status to NGOs working on behalf of lesbian, gay, bisexual and transgender people. Sexual orientation and gender identity issues have become thoroughly integrated throughout the Universal Periodic Review, set up to consider the human rights record of every UN State.
A further significant development has been the development of the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. These Principles, developed by a distinguished group of human rights experts, have been cited by treaty bodies, UN agencies, Special Rapporteurs, and – at a panel in Geneva last September – by High Commissioner for Human Rights Navi Pillay, who noted that “the Yogyakarta Principles … offer additional guidance on the obligations of States under existing international legal instruments and also contain useful recommendations for implementation at the national level.” The launch this month of an Activist’s Guide to the Yogyakarta Principles will help popularise these legal norms, and take advocacy around the Principles to the next level.
At the World Human Rights Day panel, US Ambassador Susan Rice pledged to work with other States to restore sexual orientation to the extrajudicial executions resolution when it comes to a final vote before the General Assembly on December 20, a call echoed by Norway on behalf of the Nordic cosponsors.
With UN Member States split in an almost three-way tie (yes/no/abstain) over whether the Universal Declaration’s guarantee of rights to “all human beings” means what it says, the days to come will reveal whether States will heed the recent stern admonishment of Nobel Peace Prize Winner Archbishop Desmond Tutu:
“You, at the United Nations, have a particular role to play. You have a responsibility. Lesbians, gays, bisexuals [and] transgender people are equal members of the human family whose rights you have sworn to uphold. Do not fail them.”
* John Fisher, LL.M., is Co-Director of ARC International (www.arc-international.net), a non-governmental organisation which advances recognition of sexual orientation and gender identity issues at the international level.