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
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
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
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
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
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)
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)
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
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)
This work is licensed under a
Creative Commons Licence.
Posted: 27 October 2007 at
17:00 (UK time)