33 International Conventions and other standards relating to Sexual Minorities

Ms. Neenu Suresh

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1. Learning Outcome

 

The purpose of this chapter is to:

  • Acclimatize students to the important international conventions and standards to be complied by nations that are signatory to an international law instrument.
  • Familiarize student to a few important decisions of regional organizations that have affirmed the rights of LGBT persons.

2. Introduction

International human rights principles enshrined in various conventions, treaties and other instruments can be said to apply to LGBT persons as well. Initially there were no explicit standard prescribed to uphold the rights of LGBT persons. However, LGBT rights have been acknowledged as human rights in various documents at the international level and the same will be discussed in this chapter. In particular, the Yogyakarta principles act as a comprehensive document making an exhaustive claim for the rights of LGBT persons.

3. UDHR, ICCPR and ICESR

NAZI PERSECUTION OF HOMOSEXUALS

Under Paragraph 175 of the criminal code, male homosexuality was illegal in Germany. The Nazi regime believed that gay men destabilized the fabric of the society and caused hindrance in population growth as they were neither physically fit to be soldiers nor would they procreate. Considering them to be non-productive in the Nazi racial war, the regime arrested and confined thousands of men in concentration camps in order to force them into their mold of social conformity.

The modern international human rights movement which arose as a result of the events of the Second World War was silent on rights related to sexual orientation and gender identity. This oversight happened in spite of the fact that homosexuals were persecuted in large numbers during the Holocaust. In the absence of any substantial treaty on issues related to sexual orientation and gender identity, the pioneers of LGBT activism relied on alternative exposition of the International Bill of Rights. Drawing support from the preamble of Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESR) which sought to recognize ‘inherent dignity and equal and inalienable rights of all members, they started advocating for their rights.

RIGHTS APPLIED TO SEXUAL MINORITIES

  1. Right to life, liberty and security can be interpreted to provide protection to sexual minorities from life threatening persecution. (Art 6 and 9 of ICCPR; Art 3 of UDHR)
  2. Right to freedom of opinion and expression allows sexual minorities to express their sexual orientation. (Article 19 of ICCPR, Art 19 of UDHR)
  3. Right to freedom from inhuman and degrading treatment ensures protection of sexual minorities from such state practices like abusive police practices. (Art 7 of ICCPR, Art 5 of UDHR)
  4. Right to privacy, family, home and correspondence is violated in case private consensual same sex activity is criminalised or prohibited. (Art 17 ICCPR, Art 12 UDHR)

Since UDHR, ICCPR, ICESR all mention “without distinction of any kind”, it means that this all – encompassing definition leads to the legal documents being applied to everyone including sexual minorities. Hence, they will have right to equal protection, right to work etc.

However, since sexual orientation of individuals was never explicitly mentioned in any of these treaties, it was just interpreted over the years to include such protection. The first mention of sexual orientation was in 1999 in a treaty by CEDAW, which was subsequently followed in many other such documents and treaties.

1999 – In the Concluding observations of the CEDAW it was recommended that lesbianism should be reconceptualised as sexual orientation and penalties for its practice were to be abolished.

2000 – CESCR in its General Comment 14 dealing with “The right to highest attainable standard of health” added ‘sexual orientation’ as a prohibited ground of discrimination.

2004 – Committee on child rights expanded Article 2 to include ‘adolescent’s sexual orientation and health status’ as an enumerated ground for protection from discrimination.

General Comment 20 of CESCR says that state parties should ensure that a person’s sexual orientation is not a barrier to realising Covenant rights.

Treaties like CEDAW and ICERD (International Convention on Elimination of all Forms of Racial Discrimination) become milestones as sexual minorities often face double marginalisation by being targeted on account of not only their gender but also their race. All these treaties can be interpreted to include proscription of bigotry on the basis of ‘sexual orientation’.

4. Yogyakarta Principles

A panel of international human rights experts compiled a document titled “Yogyakarta Principles” which interpreted existing international human rights instruments and jurisprudence and put down the rights related to sexual minorities in a clear-cut and unambiguous language. In a nutshell, these principles advocate that sexual minorities have the right to be treated as an equal having the right to universal enjoyment of rights like right to privacy, right to protection from all kinds of exploitation, freedom from cruelty or torture, right to marry and found a family etc. The principles did not craft new rights or responsibilities but rather compiled and consolidated already existing rights, hence they were just a reminder of the basic tenets present. Each One of these principle is a suggestion of the nature of state’s duty to implement the legal obligation.

It is important to note that, the Yogyakarta Principles have been reproduced verbatim into the text of the judgment in NALSA v. Union of India thus ensuring that Yogyakarta Principles in the law of the land in India by virtue of being a part of the pronouncement of the Supreme Court of India.

YOGYAKARTA PRINCIPLES

  • PRINCIPLE 1. The Right to the Universal Enjoyment of Human Rights
  • PRINCIPLE 2. The Rights to Equality and Non-discrimination
  • PRINCIPLE 3. The Right to recognition before the law
  • PRINCIPLE 4. The Right to Life
  • PRINCIPLE 5. The Right to Security of the Person
  • PRINCIPLE 6. The Right to Privacy
  • PRINCIPLE 7. The Right to Freedom from Arbitrary deprivation of liberty
  • PRINCIPLE 8. The Right to a Fair Trial
  • PRINCIPLE 9. The Right to Treatment with Humanity while in Detention
  • PRINCIPLE 10. The Right to Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment
  • PRINCIPLE 11. The Right to Protection from all forms of exploitation, sale and trafficking of human beings
  • PRINCIPLE 12. The right to Work
  • PRINCIPLE 13. The right to social security and to other social protection measures
  • PRINCIPLE 14. The right to an adequate standard of living
  • PRINCIPLE 15. The Right to Adequate Housing
  • PRINCIPLE 16. The Right to Education
  • PRINCIPLE 17. The Right to the Highest Attainable Standard of Health
  • PRINCIPLE 18. Protection from Medical Abuses
  • PRINCIPLE 19. The Right to Freedom of Opinion and Expression
  • PRINCIPLE 20. The Right to Freedom of Peaceful Assembly and Association PRINCIPLE 21. The Right to Freedom of Thought, Conscience and Religion PRINCIPLE 22. The Right to Freedom of Movement
  • PRINCIPLE 23. The Right to seek Asylum PRINCIPLE
  • 24. The Right to Found a Family PRINCIPLE
  • 25. The Right to participate in public life PRINCIPLE
  • 26. The Right to Participate in Cultural Life PRINCIPLE
  • 27. The Right to Promote Human Rights PRINCIPLE
  • 28. The Right to Effective Remedies and Redress PRINCIPLE
  • 29. Accountability

5. United Nations

UN Secretary-General Ban Ki-moon described violence and discrimination based on sexual orientation as “a monumental tragedy for those affected and a stain on the collective consciousness”

The silence which shrouded rights of the LBGT community was broken by the United Nation’s resolution of 2011. The resolution expressed “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.” This also led to the institution of a formal U.N. process to document human rights abuses against gays, including discriminatory laws and acts of violence. A second resolution regarding the same was passed in March 2014. Both these resolutions marked a movement towards finally acknowledging that all individuals are equal when it comes to matters regarding dignity and rights. In July 2014, United Nations (as an employer) decided to grant equal employee benefits to those in same sex unions in jurisdictions wherein they are legal. Prior to this, these were determined by the laws of nationality wherein now it encompassed all UN Staffers who enter into a legal union.

Some landmark judgments passed by the UN Human Rights Committee are as follows:

Toonen v. Australia – Toonen objected that Tasmanian laws failed to distinguish between acts in private and public by bringing the former in the domain of the latter and that this resulted in violation of right to privacy under ICCPR. The UN Human Rights Committee upheld that discrimination based on sexual orientation is included in discrimination based on sex.

Young v. Australia – In this case, the Committee held that it was discriminatory that while unmarried heterosexual partners were entitled to pension benefits, the same benefits was being denied to same sex partners. Such denial of pension benefits to same sex partners desecrated human rights as this was discrimination on grounds of sex or sexual orientation.

6. Regional Organisations

6.1 European Union

The Treaty of Amsterdam in 1999 was the first treaty to unequivocally mention and protect sexual orientation and gave the European Parliament the legal instrument to take appropriate action to combat discrimination based on sexual orientation.

European Court of Human Rights was the first to hear a successful case concerning sexual orientation. In 1981, in Dudgeon v. United Kingdom, the ECHR held that criminalisation of homosexual conduct led to violation of privacy mentioned in Article 8 of the European Convention on Human Rights. It was held that right to privacy includes privacy of sexual life. This ruling was reiterated in Norris v. Republic of Ireland and Modinos v. Cyprus. In Lustin–Prean v. United Kingdom, the ban on homosexuals from serving in military was held to be discriminatory, a fact which was supported by the European Convention on Human Rights. The ECHR ruled in favour of equal benefits for heterosexual and homosexual partners in Karner v. Austria.

6.2 Organisation of American States (OAS)

OAS is the Inter-American Commission on Human Rights. In June 2008, OAS brought out a resolution titled “Human Rights, sexual orientation and gender identity.” It noted with deep trepidation “that acts of violence and human rights violations are perpetrated against individuals based on their sexual orientation and gender identity.”

Marta Alvarez v. Columbia was the first case wherein the Inter-American Commission dealt with sexual orientation. Marta Alvarez had contended that she was being denied conjugal visits from her same sex partner while heterosexuals within the jails were being allowed conjugal visits. The Commission held that the case was admissible and that State should comply failing which the Inter American Court could pass a binding decision.

The basic tenets of all international treaties and jurisprudential literature on gender equality have one common sentiment and belief – equality to all irrespective of sexual orientation or gender identity. The building of an inclusive community free of discrimination and where every individual is treated with dignity and respect would materialise only when legal changes are supported by change in the way the society perceives such issues.

7. Conclusion

India follows dualism i.e. international law does not directly translate to domestic law. This implies that by merely being a party to an international law instrument, it does not become law of the land in India. The Indian legislature has to pass a law that will enact international law in the country. However, it has been well established that when international law does not conflict with Indian laws then by virtue of Article 51 of the Constitution of India that urges the State to ‘foster respect for international law and treaty obligations’, international law can be made applicable even in the absence of a domestic law. For instance, in the case of Vishaka v State of Rajasthan, the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 was given effect to in India. In this case, the court held that, “In cases involving violation of human rights, the Courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international Conventions and Norms while dealing with the case.”

Thus, the need of the hour is to urge the Indian State to comply with International law and affirm the rights of LGBT persons in the country.

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Reference

  • United States Holocaust Memorial Museum, NAZI PERSECUTION OF HOMOSEXUALS 1933-1945. http.//www.ushmm.org/museum/exhibit/online.
  • UNESCO Asia and Pacific Regional Bureau for Education. HUMAN RIGHTS PROTECTION FOR SEXUAL MINORITIES IN INSULAR SOUTHEAST ASIA: ISSUES AND IMPLICATIONS FOR EFFECTIVE HIV PREVENTION. Bangkok, Thailand: UNESCO Asia and Pacific Regional Bureau for Education, UNESCO, 2011; Committee on Elimination of Discrimination against Women, 1999.
  • CONCLUDING OBSERVATIONS OF ON ELIMINATION OF DISCRIMINATION AGAINST WOMEN: KYRGYZSTAN, 27 January, 1999
  • UNESCO Asia and Pacific Regional Bureau for Education. HUMAN RIGHTS PROTECTION FOR SEXUAL MINORITIES IN INSULAR SOUTHEAST ASIA: ISSUES AND IMPLICATIONS FOR EFFECTIVE HIV PREVENTION. Bangkok, Thailand: UNESCO Asia and Pacific Regional Bureau for Education, UNESCO, 2011.
  • Prof. Douglas Sanders, THE ROLE OF YOGYAKARTA PRINCIPLES, 4th Aug., 2008, http://sxpolitics.org/wp-content/uploads/2009/03/yogyakarta-principles-2-douglas-sanders.pdf.
  • European Union, Treaty of Amsterdam amending the Treaty of European Union, the treaties establishing the European Communities and certain related acts. www.europarl.europa.eu/topics/treaty/pdf/amst-en.pdf.