Yogyakarta Principles

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The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of demands relating to sexual orientation and gender identity, intended to elevate LGBT ideology to the level of international human rights law. It aims to redefine the most extreme (LGBT) demands as being equal to human rights, and impose them internationally as law. The Principles are contentious for many reasons, including their prioritizing of subjective identity over objective biological reality.

They are not at the present time recognized as having any legal force by the UN or most governments around the world.

The Yogyakarta Principles were developed by self-appointed, unelected activists at a meeting of the International Commission of Jurists, the International Service for Human Rights and human rights lawyers from around the world at Gadjah Mada University on Java from 6 to 9 November in 2006. The concluding document "contains 29 principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself".[1] The principles are named after Yogyakarta, the city where the conference was held. These principles have not been adopted by States in a treaty, and are thus not by themselves a legally binding part of international human rights law.[2] However the Principles are intended to serve as an interpretive aid to the human rights treaties.[3]

Among the 29 signatories of the principles were Mary Robinson, Manfred Nowak, Martin Scheinin, Mauro Cabral, Elizabeth Evatt, Philip Alston, Edwin Cameron, Asma Jahangir, Paul Hunt, Sanji Mmasenono Monageng, Sunil Babu Pant, Stephen Whittle and Wan Yanhai. The signatories intended that the Yogyakarta Principles should be adopted as a universal standard,[4] affirming binding international legal standard with which all States must comply[5] but some states have expressed reservations.[6]

The Yogyakarta Principles have come into conflict with women's rights where they seek to redefine sexual orientation and gender identity. So although they claim to address issues such as sexual assault and rape, torture and ill-treatment, extrajudicial executions, honour killing,[7] invasion of privacy, arbitrary arrest and imprisonment, medical abuse, denial of free speech and assembly and discrimination, prejudice and stigmatization[8] in work, health, education, housing, family law, access to justice and immigration, they have not been welcomed uncritically by feminist organzations. [9] The Principles have never been accepted by the United Nations and the attempt to make gender identity and sexual orientation new categories of non-discrimination has been repeatedly rejected by the General Assembly, the UN Human Rights Council and other UN bodies.

Background

The website promoting the Principles is very pre-occupied with sexual orientation and gender identity, which it elevates to "human rights". While the United Nations human rights instruments detail obligations to ensure that people are protected from discrimination and stereotypes,[10] which includes people's expression of sexual orientation or gender identity, extremist activists are still not satisifed and want these demands made into a supreme law that takes precedence over all others. They want to impose LGBT dictatorship and transgender ideology over and above democratic law, women's rights,child safeguarding, health considerations and biological reality itself. They call this "human rights" when it is actually just fanaticism.[4]

Development

From 6 to 9 November 2006, international seminar of legal experts on human rights took place at Yogyakarta, Indonesia. The seminar clarified the nature, scope and implementation of states' human rights obligations under existing human rights treaties and law, in relation to sexual orientation and gender identity. The principles that developed out of this meeting were adopted by human rights experts from around the world, and included judges, academics, a former UN High Commissioner for Human Rights, NGOs and others.[4] The Irish human rights expert Michael O'Flaherty was rapporteur responsible for drafting and development of the Yogyakarta Principles adopted at the meeting.[11] Vitit Muntarbhorn and Sonia Onufer Corrêa were the co-chairpersons.[5]

Reasoning

The fundamental flaw of the Yogyacarta Principles is that they categorize certain behaviors, e.g. homosexuality and transgenderism, as characteristics analogous with race or sex, and assume that no laws can apply to them. Even when these behaviors cause significant problems for the individuals and society, they claim that LGBT demands must always be supreme. They falsely classify all opposition to the LGBT agenda as "discrimination" which is assumed to be bad. The Principles aim to coerce or manipulate States to legislate accordingly which is a violation of the human and democratic rights of the majority.[4]

The Principles assert that all their demands are "human rights" and "non-discrimination". The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with these matters in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the International Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work), 15 of 2002 (on the right to water) and 14 of 2000 (on the right to the highest attainable standard of health), it indicated that the Covenant proscribes any discrimination on the basis of, inter alia, sex and sexual orientation "that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]".[12]

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised states, for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, ‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.

Launch and response

The finalised Yogyakarta Principles was launched as a global charter for gay rights on 26 March 2007 at the United Nations Human Rights Council in Geneva.[13][14] Michael O’Flaherty, spoke at the International Lesbian and Gay Association (ILGA) Conference in Lithuania on 27 October 2007; he explained that "all human rights belong to all of us. We have human rights because we exist – not because we are gay or straight and irrespective of our gender identities", but that in many situations these human rights are not respected or realised, and that "the Yogyakarta Principles is to redress that situation".[11]

The Yogyakarta Principles were presented at a United Nations event in New York on 7 November 2007, co-sponsored by Argentina, Brazil and Uruguay. Human Rights Watch explain that the first step towards this would be the de-criminalisation of homosexuality in 77 countries that still carry legal penalties for people in same-sex relationships, and repeal of the death penalty in the seven countries that still have the death penalty for such sexual practice.[9]

Human rights and LGBT-rights groups took up the principles, and discussion has featured in the gay press,[15] as well as academic papers and text books (see bibliography).

These principles, while explaining the way existing human rights statutes need to be applied in specific situations relevant to LGBT people's experience, influenced the proposed UN declaration on sexual orientation and gender identity in 2008.[16]

Controversy

On July 2010, Vernor Muñoz, United Nations Special Rapporteur on the Right to Education, presented to the United Nations General Assembly an interim report on the human right to comprehensive sexual education, in which he cited the Yogyakarta Principles as a Human Rights standard.[17] In the ensuing discussion, the majority of General Assembly Third Committee members recommended against adopting the principles.[18] The Representative of Malawi, speaking on behalf of all African States argued that the report:

Reflected an attempt to introduce controversial notions and a disregard to the Code of Conduct for Special Procedures Mandate-holders as outlined in Human Rights Council resolution 8/4. She expressed alarm at the reinterpretation of existing human rights instruments, principles and concepts. The report also selectively quoted general comments and country-specific recommendations made by treaty bodies and propagated controversial and unrecognized principles, including the so-called Yogyakarta Principles, to justify his personal opinion.[6]

Trinidad and Tobago, on behalf of the Caribbean States members of CARICOM, argued that the special rapporteur "had chosen to ignore his mandate, as laid down in Human Rights Council resolution 8/4, and to focus instead on the so-called 'human right to comprehensive education.' Such a right did not exist under any internationally agreed human rights instrument or law and his attempts to create one far exceeded his mandate and that of the Human Rights Council."[19] The representative of Mauritania, speaking on behalf of the Arab League, said that the Arab States were "dismayed" and accused the rapporteur of attempting to promote "controversial doctrines that did not enjoy universal recognition" and to "redefine established concepts of sexual and reproductive health education, or of human rights more broadly".[20] The Russian Federation expressed "its disappointment and fundamental disagreement with the report," writing of the rapporteur:

As justification for his conclusions, he cited numerous documents which had not been agreed to at the intergovernmental level, and which therefore could not be considered as authoritative expressions of the opinion of the international community. In particular, he referred to the Yogyarkarta Principles and also to the International Technical Guidance on Sexuality Education. Implementation of various provisions and recommendations of the latter document would result in criminal prosecution for such criminal offences as corrupting youth.[21]

Meanwhile, the Council of Europe states in "Human Rights and Gender Identity"[22] that Principle 3 of the Yogyakarta Principles is "of particular relevance". Because same sex marriage is possible only in five member states of the Council of Europe, transgender persons who are already married usually have to divorce prior to their new gender being officially recognised, although in many cases they would prefer to remain a legally recognised family unit, especially if they have children. Such enforced divorces may have a negative impact on the children of the marriage.(3.2.2) They recommend that member states "abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person's gender identity in laws regulating the process for name and sex change," (V.4) as well as to "make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender persons, and ensure that they are reimbursed by public health insurance schemes." (V.5) Similarly, the Parliamentary Assembly of the Council of Europe adopted a document titled "Discrimination on the basis of sexual orientation and gender identity" on 23 March 2010,[23] describing the prejudice that "homosexuality is immoral" as a "subjective view usually based on religious dogma that, in a democratic society, cannot be a basis for limiting the rights of others." The document argued that the belief that "homosexuality is worsening the demographic crisis and threatening the future of the nation" is "illogical," and that "granting legal recognition to same-sex couples has no influence on whether heterosexuals marry or have children."[23] A US-based Christian think tank, the Catholic Family and Human Rights Institute, claimed that the Principles could devalue the concept of the family and could be used to restrict freedom of speech.[16][24]

Overview

The Principles themselves are a lengthy document addressing legal matters. A website established to hold the principles and make them accessible has an overview of the principles,[25] reproduced here in full:

  • Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity, which undermine the integrity and dignity, establishes the relevant legal framework, and provides definitions of key terms.
  • Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law: Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition as a person before the law without sex reassignment surgery or sterilisation.
    • Example:
      • Laws criminalising homosexuality violate the international right to non-discrimination (decision of the UN Human Rights Committee).
  • Rights to Human and Personal Security: Principles 4 to 11 address fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention, and human trafficking.[26]
    • Examples:
      • The death penalty continues to be applied for consensual adult sexual activity between persons of the same sex, despite UN resolutions emphasizing that the death penalty may not be imposed for "sexual relations between consenting adults."
      • Eleven men were arrested in a gay bar and held in custody for over a year. The UN Working Group on Arbitrary Detention concluded that the men were detained in violation of international law, noting with concern that "one of the prisoners died as a result of his arbitrary detention".
  • Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education, sexual and reproductive health including the right for informed consent and sex reassignment therapy.
  • Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise the importance of the freedom to express oneself, one’s identity and one’s sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others.
  • Freedom of Movement and Asylum: Principles 22 and 23 highlight the rights of persons to seek asylum from persecution based on sexual orientation or gender identity.
  • Rights of Participation in Cultural and Family Life: Principles 24 to 26 address the rights of persons to participate in family life, public affairs and the cultural life of their community, without discrimination based on sexual orientation or gender identity.
    • Example:
      • States have an obligation not to discriminate between different-sex and same-sex relationships in allocating partnership benefits such as survivors’ pensions (decision of the UN Human Rights Committee).
  • Rights of Human Rights Defenders: Principle 27 recognises the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas.
    • Examples:
      • Human rights defenders working on sexual orientation and gender identity issues in countries and regions around the world "have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed. A major concern in this regard is an almost complete lack of seriousness with which such cases are treated by the concerned authorities." (report of the Special Representative of the UN Secretary-General on Human Rights Defenders).
  • Rights of Redress and Accountability: Principles 28 and 29 affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations.
    • Example:
      • The UN High Commissioner for Human Rights has expressed concern about "impunity for crimes of violence against LGBT persons" and "the responsibility of the State to extend effective protection. The High Commissioner notes that "excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all."
  • Additional Recommendations: The Principles set out 16 additional recommendations to national human rights institutions, professional bodies, funders, NGOs, the High Commissioner for Human Rights, UN agencies, treaty bodies, Special Procedures, and others.
    • Example:
      • The Principles conclude by recognising the responsibility of a range of actors to promote and protect human rights and to integrate these standards into their work. A joint statement delivered at the United Nations Human Rights Council by 54 States from four of the five UN regions on 1 December 2006, for example, urges the Human Rights Council to "pay due attention to human rights violations based on sexual orientation and gender identity" and commends the work of civil society in this area, and calls upon "all Special Procedures and treaty bodies to continue to integrate consideration of human rights violations based on sexual orientation and gender identity within their relevant mandates." As this statement recognises, and the Yogyakarta Principles affirm, effective human rights protection truly is the responsibility of all.

See also

References

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  2. United Nations Genernal Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m, para. 9.
  3. Additional Recommendation (i)
  4. 4.0 4.1 4.2 4.3 Lua error in package.lua at line 80: module 'strict' not found.
  5. 5.0 5.1 Introduction to The Yogyakarta Principles
  6. 6.0 6.1 United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m, para. 9.
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  8. Preamble of the Yogyakarta Principles
  9. 9.0 9.1 Lua error in package.lua at line 80: module 'strict' not found.
  10. Preamble, Principle 25 (b) and Additional Recommendations (o) of the Yogyakarta Principles
  11. 11.0 11.1 Lua error in package.lua at line 80: module 'strict' not found.
  12. CESCR General Comments 14, 15 and 18
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  14. Sexual Orientation, Gender Identity and International Human Rights Law
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  16. 16.0 16.1 French UN "Sexual Orientation" Push Linked to Radical Yogyakarta Principles, Piero A. Tozzi, Catholic Family and Human Rights Institute, 1st January 2009
  17. Report of the United Nations Special Rapporteur on the right to education, 23 July 2010, UN Doc. A/65/162, para 23:

    Sexual education is a basic tool for ending discrimination against persons of diverse sexual orientations. A very important contribution to thinking in this area was made by the 2006 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. The Special Rapporteur fully endorses the precepts of Principle 16, referring specifically to the right to education.

  18. International Service for Human Rights, Majority of GA Third Committee unable to accept report on the human right to sexual education
  19. United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m, UN Doc. A/C.3/65/SR.29, para. 11.
  20. United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m, UN Doc. A/C.3/65/SR.29, para. 14–15.
  21. United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m, UN Doc. A/C.3/65/SR.29, para. 22–23.
  22. Lua error in package.lua at line 80: module 'strict' not found.
  23. 23.0 23.1 Council of Europe Parliamentary Assembly, Discrimination on the basis of sexual orientation and gender identity, 23 March 2010
  24. Piero A. Tozzi J.D., Six Problems with the Yogyakarta Principles, PDF, Catholic Family and Human Rights Institute: International Organizations Research Group Briefing Paper (2007)
  25. Lua error in package.lua at line 80: module 'strict' not found.
  26. Principle 11. The Right to Protection from all form of exploitation, sale and trafficking of human being
  27. Lua error in package.lua at line 80: module 'strict' not found.

Bibliography