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 international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) people. The outline of the Principles was drawn at a meeting of human rights experts from around the world on Java in 2006. "It contains 29 Principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil soicety, and the UN itself".[1] The principles are named after Yogyakarta, the smallest province of Indonesia (excluding Jakarta) located on the island of Java. The principles are intended to be a universal guide to human rights to which all States will be held, using international legal standards.[2]

In alignment with the movement towards establishing basic human rights for all people, the Principles specifically address sexual orientation and gender identity. The Principles were developed in response to patterns of abuse reported from around the world. These included examples of rape, torture, extrajudicial executions, medical abuse, denial of free speech and assembly as well as a range of discriminations in work, health, education, housing, access to justice and immigration. These are estimated to affect millions of people targeted on the basis of perceived of lived sexual orientation or gender identity.[3]

Contents

Background

It is noted on the website carrying the principles that concerns have been voiced about a trend of people's human rights being violated because of their sexual orientation or gender identity. Extra-judicial killing, torture and ill-treatment, sexual assault and rape, invasion of privacy, arbitrary arrest and imprisonment, denial of employment and education opportunities are cited. It is explained that the United Nations human rights instruments detail the obligations States are under to ensure people are protected from discrimination, which includes people's expression of sexual orientation or gender identity. it is pointed out that implementation of these rights has been fragmented and inconsistent internationally. It is set out how the Principles provide a consistent understanding about application of international human rights law in relation to sexual orientation and gender identity.[2]

Development

In November 2006, an 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.[2] Michael O’Flaherty was rapporteur responsible for drafting and development of the Yogyakarta Principles produced from the meeting. [4]

Reasoning

The compilers explain that the Principles detail how international human rights law can be applied to sexual orientation and gender identity issues, in a way that affirms international law and to which all States can be bound to. They suggest that the motivation is so that where ever people are recognised as being born free and equal in dignity and rights, this should include LGBT people as well. They argue that human rights standards also cover issues of sexual orientation and gender identity touch on issues of torture and violence, extrajudicial execution, access to justice, privacy, freedom from discrimination, freedom of expression and assembly, access to employment, health-care, education, and immigration and refugee issues. The intention outlined is for the Principles to explain that States are obliged to ensure human rights, and each principle recommends how to achieve this, highlighting international agencies' responsibilities to promote and maintain human rights. [2]

Launch and response

The finalised Yogyakarta Principles was launched as a global charter for gay rights on 26 March 2007 in Geneva. [5] Michael O’Flaherty, spoke at the International Lesbian and Gay Association (ILGA) Conference in Lithuania on 27th 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". [4]

The Yogyakarta Principles was presented at a United Nations event in New York on November 7th, 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.[3]

Human and LGBT Rights groups took up the Principles, and discussion has featured in the gay press, [6] as well as academic papers and text books (see bibliography). The 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 LGBT rights in 2008: 'A new proposal introduced by the French delegation at the UN, backing a ban on discrimination based on "sexual orientation and gender identity," can be traced to the Yogyakarta Principles of 2006, the Catholic Family and Human Rights Institute (C-Fam) reports. An early draft of the UN resolution actually cited the Yogyakarta document, which puts forward the position that sexual orientation and gender identity are matters of pure personal choice, and every such choice deserves equal protection'.[7]

Overview

The Principles themselves are a lengthy document addressing legal matters. The wesbite established to hold the principles and make them accessible has an overview of the principles,[8] reproduced here in full:

  • Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity, 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 before the law.
    • 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.
    • 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 and health.
    • Examples:
      • Lesbian and transgender women are at increased risk of discrimination, homelessness and violence (report of UN Special Rapporteur on adequate housing).
      • Girls who display same-sex affection face discrimination and expulsion from educational institutions (report of UN Special Rapporteur on the right to education).
      • The UN High Commissioner for Human Rights has expressed concern about laws which “prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will”.
  • 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.
    • Example:
      • A peaceful gathering to promote equality on the grounds of sexual orientation and gender identity was banned by authorities, and participants were harassed and intimidated by police and extremist nationalists shouting slogans such as “Let’s get the fags” and “We’ll do to you what Hitler did with Jews” (report of the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia & related intolerance).
  • 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.
    • Example:
      • Refugee protection should be accorded to persons facing a well-founded fear of persecution based on sexual orientation (Guidelines of the United Nations High Commissioner for Refugees).
  • 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 UN 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

Bibliography

References

  1. Human Rights Watch World Report 2008
  2. 2.0 2.1 2.2 2.3 About the Yogyakarta Principles
  3. 3.0 3.1 Reuters report: "UN: Support Global Gay Rights Charter", 5th Nov 2007
  4. 4.0 4.1 The Yogyakarta Principles: Rapporteur Addresses Gay Conference
  5. Geneva launch of Yogyakarta Principles
  6. United Nations to host LGBT rights panel, Maryam Omidi, Pink News, 29th October 2007
  7. UN resolution against gender bias traced to Yogyakarta Principles, Catholic Culture, 5th January 2009
  8. Overview of Yogyakarta Principles (not subject to copyright and reproduced with permission of webmaster)

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