The Yogyakarta Principles – a call for caution

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Introduction:

The modern institution of justice system of the international comity of nation view of human rights and freedom of speech is based on the perception that all human beings regardless of physic, status of birth or life, gender and race are equal and are as such equally entitled to the benefits inherent in and derivable from coexistence with other human beings. Its thrust is to create, introduce and ensure a general standard of accountability and respectability in modern societies on the basis that all human rights are universal, interdependent, indivisible and interrelated.

Unfortunately, due to the challenge posed by inherent differences in cultures, human perceptions and experiences, global debate on universal identification and protection of human rights is yet unsettled. However the right to life and the right to dignity of human person appear to be the least contentious of the rights forming or constituting the concept of human rights, possibly because they are the basis upon which the entire human rights concept is itself founded.

Regardless of the respective experiences and understandings of what constitute human rights, a set of rules are now widely accepted as forming basic inalienable rights of all men(Generic for human beings).

These include the rights to life, dignity of human person, personal liberty, fair hearing, private and family life, freedom of thought conscience, speech and religion, peaceful assembly and association, freedom of movement and freedom from discrimination.

The degree to which communities and governments abide by and or implement these rules and ultimately protect these basic human rights is largely dependent on the mature experiences of the concerned communities and how same impacts on all forms of societal relationships within the concerned communities. Flowing directly from the dichotomy in societal experiences, much effort is being put to forging a universal common front on protection of human rights. One of such efforts perhaps gave birth to the Yogyakarta principles.

The Yogyakarta Principles are designed to stipulate a broad range of international human rights standards and their application to issues of sexual orientation and gender identity. The basis of the principles is primarily that sexual orientation and gender identity are integral to every person’s dignity and humanity and should not be the basis for discrimination and abuse.

The overview:

The Principles are introduced by a preamble which acknowledges human rights violations based on sexual orientation and gender identity, establishes the relevant legal framework, and defines key terms. The rights addressed by the Principles are approximately 29 in number broken into 8 broad groups.

The first three principles are broadly classified as Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law. They set out the principles of the universality of human rights and their application to all persons without discrimination regardless of sexual orientation and or gender identity. The example provided are laws criminalizing homosexuality said to violate the international right to non- discrimination based on a decision of the UN Human Rights Committee. These principles particularly in the face of the example provided however appear to have impinged on the territory of international criminal justice, which in itself is already very volatile. Furthermore they appear to only be a restatement of already settled rights.

Principles 4 to 11 are Rights to Human and Personal Security and relate to fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention. Examples provided include the continued application of the death penalty for consensual adult same sex sexual activity in certain societies, despite UN resolutions emphasizing that the death penalty may not be imposed for “sexual relations between consenting adults.” Apart from the potential of challenging the sovereignty of States and delving into the jurisprudence of international criminal justice, these set of rights latently conflict with the rights to universal enjoyment of Human Rights, Non–Discrimination and Recognition before the Law discussed earlier in that while one seeks to eradicate the criminalization of certain sexual acts among adults the other seeks to reduce the penalty for engagement in the same acts to less than the death penalty.

Economic, Social and Cultural Rights are provided for in Principles 12 to 18 which set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education and health. Lesbian and transgender women being at increased risk of discrimination, homelessness and violence based on a UN report on adequate housing is an example of the rights sought to be protected hereunder. Another example is the discrimination which girls who display same-sex affection face in educational institutions. The purport of this example is doubtful in that while it appears to highlight the inalienable right and need of all persons to formal education it also subtly challenges the regulation of sexual activity among infants and young persons(Specifics depend on society but generally held to refer to persons below 18 years of age)

Principles 19 to 21 on Rights to Expression, Opinion and Association emphasize 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. An example of a peaceful gathering to promote equality on the grounds of sexual orientation and gender identity being banned by authorities was supplied as illustration. It appears and it is indeed likely that enforcement of these rights may by compulsion increase certain forms of societal tolerance. However the element of compulsion in these rights in increasing societal tolerance itself borders on the breach of now settled general fundamental right to freedom of expression of all human beings.

The Freedom of Movement and Asylum rights contained in Principles 22 and 23 may very well be novel in that they set out the rights of persons to seek asylum from persecution based on sexual orientation or gender identity. It would however be a curious development where a person seeks to enforce these rights against a foreign State with a full complement of immigration laws. The example provided is that refugee protection should be accorded to persons facing a well-founded fear of persecution based on sexual orientation.

Principles 24 to 26 which embody the Rights of Participation in Cultural and Family Life, highlight 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. The example provided is a decision of the UN to the effect that States have an obligation not to discriminate between different sex and same sex relationships in allocating partnerships benefits such as survivors’ pensions.

Principle 27 is the Rights of Human Rights Defenders and it seeks to protect 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.

Principles 28 and 29 are the Rights of Redress and Accountability. They seek to affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations and States are urged to extend effective protection to LGBT persons who are prone to crimes of violence.

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 which primarily affirm that human rights protection is the responsibility of all.

Summary and Conclusion:

The Principles in whole do not identify, introduce or relate to any new set of human rights. In contrast they are limited to human rights abuses based on sexual orientation and gender identity. There is therefore a need for caution in their implementation so as not to shift focus away from the primary need of protecting all human rights, which were properly protected, would invariably, remove the need for the Principles themselves.

Furthermore, by the nature of the Principles, their implementation without proper thought and local considerations being taken into account would invariably increase sexual awareness which may conversely increase uninformed sexual activity and thereby leaving the participants and the society ill prepared for the associated consequences. On another front, in view of the high influence sex and sensuality have on not only the individual but the society as well, uncontrolled or unregulated sexual rights, as are advocated by the Principles particularly in Principles 19 – 21 and 24 – 26, are likely to corrode the moral fabric of human societies which to all intents and purposes is the distinguishing factor between human and non human societies.

In conclusion it is the opinion of this writer that concerted implementation of such fundamental human rights protection treaties as the African Charter on Human rights, among others, would remove any need for resorting to the Principles and the likelihood of their wrongful implementation.

 

Written by

Bolaji Ogungbemi

(First published on LinkedIn)

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