The U.N. Human Rights Council Resolution on Sexual Orientation and Gender Identity (Part 2)

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By Jane Adolphe

ROME, DEC. 5, 2012 ( The UNHCHR finished her Report on «Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity ( A/HRC/19/41, 17 November 2011) [hereinafter “The Report”]. The Report is 25 pages long and divided into seven sections: introduction, applicable international standards and obligations; violence; discriminatory laws; discriminatory practices; emerging responses; conclusions and recommendations.

It offers no definition of SO and GI, but in a type of bait and switch, the mandate is changed to introduce another topic namely “new rights” pertaining to personal sexual interests of a lobbying group which self-identifies as lesbian, bisexual, transsexual, and intersexed (LBGTI). The Report ripples with new expressions: «homophobic”, “transphobic,» “sexual minorities” “State-sponsored homophobia,” “heteronormative gender identity,” «perception of homosexuality» or  “perception of transgender identity.” In addition, the term “gender” commonly used on the international level to refer to female and male or women and men is re-defined, when  homophobic” and “transphobic” are said to be forms of gender-based violence (para. 20).

The Report argues that the application of international human rights law is guided by principles of “universality, equality and non-discrimination” but later, contradicts itself, and contends that discrimination is a right, not a principle (para. 15). In support of these three principles or two principles and a right, whatever the case may be, the Report cites art. 1 of the Universal Declaration of Human Rights (UDHR) but only in part: “all human beings are born free and equal in dignity and rights.”

In response, the Report fails to cite art. 1 of the UDHR in full and that marginalizes the key characteristics that we all share as human beings and human persons. The Report is in essence denying a universal human nature and that puts into question the very foundation of the international human rights system. Five basic arguments are worth noting here. First, the UDHR recognizes “the inherent dignity and . . . equal and inalienable rights of all members of the human family” (pmbl. para.1). Clearly the principle of inherent dignity is foundational. Second, it gives essential characteristics of the human person that renders us the same while at the same time distinguishing us from plants and other creatures. Art. 1 in full reads:  “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” In other words, each human being, by the mere fact of being human, is a person, that is, by nature relational and “endowed with reason and conscience” personally responsible to seek the truth, and respond to the interior call to do good. Three, the term “born” in art. 1 is referring to a “moral birth”—a “deeper moral quality,” which no human person, political body, or social body could possibly grant (Morsink, 291-292). This understanding is consistent with the fact that human persons are also different and they are not physically born into equal circumstances. Four, the UDHR recognizes duties to others and the community as well as limitation on rights “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare  in a democratic society” (art. 29). Five, the UDHR is the foundational document for the International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Economic, Social and Cultural Rights [ICESCR], which, like the UDHR,  clearly recognize that “rights derive from the inherent dignity of the human person” (pmbl. para. 2, respectively),  that rights are co-relative with duties (pmbl. para. 5, respectively), and that rights may be limited by law (art. 4, respectively). In sum, these three documents, commonly referred to as the International Bill of Human Rights, do not grant rights but merely acknowledge them; recognize rights and duties as well as limitations; and ground rights and duties in inherent human dignity of the human person, male and female, by nature endowed with reason and conscience.

Clear opposition should be expressed against arbitrary arrest and detention, extrajudicial, summary or arbitrary executions, torture and other cruel, inhuman treatment or degrading treatment on every member of the human family, without the need of a list. The right to life, liberty and security of the person is protected and prohibitions exist against torture, and other inhuman treatment, as well as arbitrary arrest and detention: UDHR, arts. 3, 5, 9; ICCPR, arts 6, 9, 10: Convention against Torture and Other Cruel, inhuman Treatment or Degrading treatment, art. 1, 2, 4, 16. However, the Report goes much further than dealing with acts of violence but devotes itself to singling out a self-defined group “LGBTI” for special protections (para. 34-36) and the creation of “new rights” (e.g. right to “same-sex marriage”).

The Report rightly acknowledges that the terms: “sexual orientation” or “gender identity” or «perception of homosexuality» or «transgender identity» are not protected categories in international law (paras. 7, 8). However, it erroneously argues that such categories are “derived from various international human rights instruments,» (para.8).  With such an argument, the UN High Commissioner exceeds her jurisdiction by reading controversial categories into binding international human rights agreements whose final interpreters are the respective State Parties (cf. 1969 Vienna Convention on the Law of Treaties [VCLT]). It does not assist the UN High Commissioner to cite statements or reports of UN entities which are not produced by representatives of sovereign States and have not been accepted as agreed language or principles of representatives of sovereign states, and do not constitute international law.

The Report uses the term “discriminatory practices,” in the area of employment, health care, education, family, and so on. The Report makes a distinction between “direct discriminatory impact” and “indirect discriminatory impact,” which in turn facilitates State review of conduct between private citizens (para. 50). In response, the UDHR acknowledges the human person, male and female, in noting the “equal rights of men and women” (pmbl. para. 5). It prohibits discrimination, for example, on the ground of sex (art. 2). However, one cannot move to determine whether a specific act is discriminatory without first having a clear definition of terms, including the source of human rights, namely the inherent dignity of the human person per art. 1 UDHR. In addition, one needs to discern what acts constitute discrimination taking into consideration the rights and duties of others (cf. freedom of expression, conscious, and religion) and the community (cf. UDHR, art. 29: rights may be limited for the purpose of securing recognition for the rights of others and of meeting the just requirements of morality, public order and the general welfare). For example, States and societies that promote and protect the family based on marriage between one man and one woman are respecting and fulfilling their obligations in international law (cf. UDHR, art. 16, ICCPR, art. 23, ICESCR, art. 10). They are not engaging in discriminatory behaviour. In addition, those States and societies that require prospective spouses, man and woman, to attain a certain age before marrying and to freely consent to marry are common sense limitations acknowledged in international law (Id.). Moreover, there is a plethora of data to support the proposition that the natural family is the best place for children and not a danger to them as the Report would have us believe (para. 21). In the final analysis,  the Report does little to provide direction and guidance regarding application of the non-discrimination principle in way that would do justice to the Principle of Legality and respect existing treaties, laws and resolutions as well as the rights of religious communities.

The Report heavily relies upon the recommendations of treaty monitoring bodies. Treaty bodies are not judicial organs. Their conclusions take the form of non-binding recommendations designed to assist State Parties in the implementation of their treaty obligations. Those conclusions are not judgements nor do they constitute jurisprudence nor could this be the case, since treaty body members are not required to be legal experts. Treaty bodies have no competence to redefine the terms used in the substantive norms of their constitutive treaties, purporting to create new rights or principles which do not correspond to the authentic and original meaning of the treaties. In particular, treaty bodies cannot impose upon State Parties obligations which had not been expressly undertaken by those States when negotiating and ratifying the constituting treaty.

Human rights treaties must be interpreted in accordance with the provisions of arts. 31 and 32 of the VCLT, which reflect customary international law. Treaty bodies must, therefore, apply their constituting instruments in «good faith», in accordance with the «ordinary meaning» of the terms of the treaty, and in their context and in light of [its] object and purpose». Any instruments made by one or more parties, such as reservations and interpretative declarations, are, for the purpose of interpreting a treaty, part of its «context» (VCLT, art, 31.2.a). Consequently, UN entities, Special Rapporteurs or treaty bodies should not attempt to apply the provisions of a treaty extensively or creatively, in violation of the rules of interpretation contained in the VCLT. Attempts by any treaty body, in particular, to apply its constituting instrument in a manner that departs from the original meaning of that instrument would provoke a «fundamental change of the circumstances,» for the purposes of art. 62 of the VCLT, and would provide grounds for a State Party to denouncing respective treaty. Lastly, reservations entered by State Parties to international human rights agreements exclude or modify the legal effects of the provisions of the treaty to which the reservation relates. In accordance with art. 20 of the VCLT, only States and judicial organs may assess the permissibility of a reservation, and pursuant to the rules ofinterpretationState reservations must be taken into consideration. 

Part 3 will be published on Thursday, December 6th.


Jane Adolphe is the Associate Professor of Law at  Ave Maria School of Law in Naples, Florida.

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