■ Michael O’Flaherty, rapporteur for development of the Yogyakarta Principles, addressing the ILGA-Europe conference yesterday. photo courtesy ILGA-Europe

VILNIUS, October 27, 2007  –  The following is a transcript of the address given to the International Lesbian and Gay Association Europe’s annual conference yesterday by Michael O’Flaherty, rapporteur for development of the Yogyakarta Principles.  Mr. O’Flaherty is professor of applied human rights and co-director of the human rights laws centre at the University of Nottingham, UK.  He is also a member of the United Nations Human Rights Committee.

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.  This is evident as a matter of principle and also as a matter of international human rights law.  However, discussion of the impact of international law for sexual minority groups tends to focus around a small number of issues – invasion of privacy rights; criminalisation of sexual activities; discrimination in access to services, that sort of things.  Law has a considerable amount more than this to say to the plight that countless millions of people face around the world.

International courts and other monitoring bodies have found violations of human rights or otherwise spoken up regarding a very wide range of situations:  for instance, regarding protection from torture, execution, hate crime and police intimidation, as well as non-discriminatory access to partner social security benefits, to education and health facilities.  They have even confirmed that there is a formal legal right to live in a society that actively combats prejudice and promotes genuine equality of access and opportunity. 

Unfortunately, the findings of the courts and monitoring bodies have had less impact than should be the case.  The proceedings are often very obscure in terms of public impact.  They usually address specific situations or countries and their broader relevance can be overlooked.  As a result, we are met with a little known legal patchwork that in no way reaches it’s potential to promote social change worldwide.

The purpose of the Yogyakarta Principles is to redress that situation.  They are a compendium of all of the applicable international legal standards as applied to the actual situation of people of diverse sexual orientations and gender identities worldwide.  Obvious as this exercise might seem, it had never before been done.  Nor was it easy – it required a careful reflection on the meaning of legal findings and their relevance to a vast range of issues and situations.

The Principles were developed and unanimously adopted by a group of 30 human rights experts, from diverse regions and backgrounds, including judges, academics, a former UN High Commissioner for Human Rights, UN “Special Procedures”, members of international human rights monitoring bodies, NGOs and others. A central event in the development of the Principles was a seminar of many of the legal experts that took place in Yogyakarta, Indonesia at Gadjah Mada University from 6 to 9 November 2006. That seminar clarified the nature, scope and implementation of States’ human rights obligations in relation to sexual orientation and gender identity under existing human rights law.

There are 29 Principles, with 16 recommendations addressed to others.  I will not run through all of them now, but a few key points can be made:

The Principles contain a definition of “gender identity” and of “sexual orientation”.  This is a first in an international legal document and it has the great merit of focussing attention around an agreed meaning to the terms.  As has happened in other contexts, for instance regarding human trafficking, the clarification of meaning can be a firm basis for action.

You can describe the Principles has been located on a map of suffering and discrimination.  The map is very wide ranging, from the obvious issues to those that have received much less attention.  However, no one would claim that the mapping exercise is complete – we will continue to discover or become sensitised to aspects of discrimination, prejudice or persecution that people face because of their sexual orientation or gender identity.

The Principles unite economic, social, cultural, civil and political rights.  This is the so-called human rights notion of indivisibility:  is no point in civil rights, like free speech and protection from physical attack, if, at the same time, you can be discriminated against in housing or health care.  The Yogyakarta Principles recognise these connections and draw together the relevant legal standards in a way that genuinely reflects how we all live our lives.

You can describe the Principles as being constructed around four additional legal concepts:

The first of these is that of non-discrimination.  Obviously, equal treatment is fundamental to protecting the rights of people of diverse sexual orientations and gender identities.

Combating discrimination is not enough:  the next concept then is that of protection from persecution.  .  In countless countries it is essential to recall the legal prohibition on attacks such as torture, degrading treatment, sexual abuse and forced medical procedures.

The fourth concept is that of empowerment.  Human Rights are not just about preventing bad things.  They are also about giving people the space and the supports in order for them to flourish and play a full part in their communities.  This explains the detailed recommendations to States regarding such matters as education, public information, social supports and redress for past violations

The final underlying legal notion is that of accountability.  Every human right involved the imposition on the State and its agents of a human rights duty.  Their duty extends beyond their own acts and they have a responsibility to ensure that all of society respects the rights of everyone.  The Principles make this clear in a very specific and applied manner.

Of course the Yogyakarta Principles are not perfect.  In the first place they do not include reference many people would want to see in international law, for instance regarding same-sex marriage.  This is because of the cautious approach of just expressing what the law now is rather than where we might like to see it go. 

A second limitation is that the Principles can only address the situation as best it is understood in this moment of history.  We are sure that there are examples of discrimination or of persecution that have been overlooked – this is perhaps more likely with regard to issues of gender identity that have received much less attention in international law debate than is the case for sexual orientation. 

A third limitation is that it is never obvious where to set the limits on the level of detail entered into.  For instance, some people think that a specific medical issue – that of access to medicines in Africa - should have been specifically mentioned.  It has also been suggested that the gender neutrality of the text – something we worked hard to achieve – has the effect of rendering invisible some of the very serious human rights concerns of women.

Another aspect of the Principles might, at first sight, be seen as a limitation.  That is the way in which they primarily address governments.  However we do not regret this choice.  Government are the bodies that have the solemn responsibility in law to promote and protect human rights.  They have to be the primary audience for the principles.  We want to confront with their duties.  We also want to help them with sensible and law-based suggestions as they face up to the responsibilities.

In any case, as you will see from the text, the Principles also speak to many actors beyond governments.  They contain recommendations to the UN, to regional organisations, to courts and human rights monitoring bodies, to national and international NGOs, even to individuals.  A major challenge now will be to bring them to the attention of all these groups and to hold them accountable also. 

Ultimately, the strength, reach and impact of the Yogyakarta Principles, will, in large part, depend on the quality and the vigour of the advocacy work that will be done on their behalf.  That brings the issue right back to all of you here today – we rely on you to take the next steps with the Principles – to take them to heart and to use them in national and international lobbying and awareness raising.  That is a major and extended task for which I wish you well.

ALSO FROM ILGA-EUROPE CONFERENCE

From Seattle to Vilnius: Anti Gay New Generation Church Protests in Vilnius.  Last weekend, the Latvia-based Russia-speaking New Generation Church staged a conference near Seattle under the guise of its off-shoot Watchmen on the Walls.  This weekend, the New Generation Church’s Lithuanian branch took to the streets to protest the International Lesbian and Gay Association Europe annual conference in Vilnius. (UK Gay News, October 27, 2007)

Amnesty Dismayed by Vilnius Mayor’s Decision to Ban Gay Rally.  Amnesty International said this afternoon that it was deeply concerned by yesterday’s attacks on the gay community in Vilnius, which saw the mayor ban a rally and an unconfirmed smoke bomb attack on an evening social event that formed part of the ILGA-Europe annual conference.  (UK Gay News, October 26, 2007)

Banning of Gay Public Event ‘Outrageous’, Say ILGA-Europe Chiefs.  Senior officials of the International Lesbian and Gay Association Europe today slammed both the Vilnius city authorities and a local court for banning a public “rainbow flag” event in the city during the association’s annul conference, calling the situation “outrageous”. (UK Gay News, October 25, 2007)

Janis Smits Initially Rebuffed by Council of Europe While His Religious Pals Plan Anti-Gay Hate Mission to USA.  Commentary.  Never let it be said that the movers and shakers in the Council of Europe (CoE) lack guts.  This week, Andreas Gross, rapporteur of the Judicial and Human Rights Committee of the Council of Europe’s Parliamentary Assembly (PACE), was in Latvia and invited the Latvian Parliamentary Social Affairs and Human Rights Committee to lunch.  (UK Gay News, October 12, 2007)

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Posted: 27 October 2007 at 17:00 (UK time)