A Bit More Detail

Assorted Personal Notations, Essays, and Other Jottings

[BRIEF NOTE] Europe’s pioneering internationalization of GLBT rights

The fact that France, backed by the European Union and with broad support not passed without notice.

An unprecedented declaration seeking to decriminalize homosexuality won the support of 66 countries in the United Nations General Assembly on Thursday, but opponents criticized it as an attempt to legitimize pedophilia and other “deplorable acts.”

The United States refused to support the nonbinding measure, as did Russia, China, the Roman Catholic Church and members of the Organization of the Islamic Conference. The Holy See’s observer mission issued a statement saying that the declaration “challenges existing human rights norms.”

The declaration, sponsored by France with broad support in Europe and Latin America, condemned human rights violations based on homophobia, saying such measures run counter to the universal declaration of human rights.

“How can we tolerate the fact that people are stoned, hanged, decapitated and tortured only because of their sexual orientation?” said Rama Yade, the French state secretary for human rights, noting that homosexuality is banned in nearly 80 countries and subject to the death penalty in at least six.

France decided to use the format of a declaration because it did not have the support for an official resolution. Read out by Ambassador Jorge Argüello of Argentina, the declaration was the first on gay rights read in the 192-member General Assembly itself.

Although laws against homosexuality are concentrated in the Middle East, Asia and Africa, more than one speaker addressing a separate conference on the declaration noted that the laws stemmed as much from the British colonial past as from religion or tradition.

Navanethem Pillay, the United Nations high commissioner for human rights, speaking by video telephone, said that just like apartheid laws that criminalized sexual relations between different races, laws against homosexuality “are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.”

It’s not surprising that the Europeans have taken the lead in globalizing the GLBT rights dossier, since of all of the regions of the world it’s Europe that was the first to regionalize these issues. Numerous progresses have been achieved by the now-defunct European Commission on Human Rights, a body of the Council of Europe since assimilated into the European Court of Human Rights.

The ECHR began to form on November 4, 1950 when the Council approved the Convention for the Protection of Human Rights and Fundamental Freedoms. This document became the first international legal instrument to safeguard human rights.

The Convention contains articles that establish a right to life, a ban on torture, the outlawing of slavery, a right to liberty, minimum protections for those charged with a crime, a right to privacy, freedom of thought, freedom of expression, and freedom of association. Article 12 established the right to marry for men and women according to national laws.

These rights did not expressly include the freedom to be queer. However, several of the provisions, notably the right to privacy, have been interpreted in a manner that gives protection to gay men and lesbians.

To ensure the observance of the Convention, the member nations established the ECHR and a European Court of Human Rights on September 18, 1959. The ECHR received applications alleging violations of the Convention. Applications could come from nations, but most came from individuals unable to find satisfaction within their national legal systems.

The ECHR accepted cases only after all domestic remedies had been exhausted and within a period of six months from the date on which the final decision was taken. It charged no fees and did not require a plaintiff to hire an attorney.

The Commission either attempted to achieve a friendly settlement, issued an opinion on whether a breach of the Convention had taken place, or referred a case to the Court. Only the Court had the ability to reach judicial decisions.

The ECHR acted only when it received a petition. Throughout its history, it received relatively few requests for assistance. In the 1980s, queers became more aggressive about pursuing justice and the ECHR began to move.

In 1981, a gay man named Jeffrey Dudgeon asked the ECHR to decriminalize homosexual relationships in Northern Ireland. He charged that the Irish ban violated a person’s right to privacy, contrary to the Convention. Dudgeon won. His victory forced the British government in Northern Ireland to legalize homosexuality in 1982.

The next successful gay rights ECHR case also involved the decriminalization of same-sex sodomy. In 1988, David Norris persuaded the ECHR to rule that the Republic of Ireland’s prohibition of all homosexual acts was illegal.

Considering the strength of the Roman Catholic Church in Ireland, it is doubtful that homosexual relations would have become legal in that country without the intervention of the ECHR.

While it protected adult gays, the ECHR hesitated to allow minors the right to practice homosexuality. In 1983, British teenager Richard Desmond became the first person to take the United Kingdom to the ECHR over Britain’s age of consent laws.

Unable to broker a compromise, the ECHR sent the Desmond case to the European Court of Human Rights. Desmond lost. The Court deferred to the right of each member state to fix its own minimum age for homosexual contact. It ruled that each nation was entitled to take into account the “moral interests and welfare of young people.”

By 1997, the social climate in Europe had become friendlier to gays. Euan Sutherland, another British gay youth, attempted to use the ECHR to overturn the British age of consent.

Sutherland argued that the difference between the heterosexual and homosexual ages of consent affected his enjoyment of his human rights. He charged that Britain had violated the Convention with a discriminatory law that infringed upon his right to respect for a private life.

Sutherland won his case. The Commission became the first international body to recognize an adolescent male’s homosexuality.

As the news report quoted above goes on to make clear, the regionalization of human rights norms goes both ways.

The opposing statement read in the General Assembly, supported by nearly 60 nations, rejected the idea that sexual orientation was a matter of genetic coding. The statement, led by the Organization of the Islamic Conference, said the effort threatened to undermine the international framework of human rights by trying to normalize pedophilia, among other acts.

The Organization of the Islamic Conference also failed in a last-minute attempt to alter a formal resolution that Sweden sponsored condemning summary executions. It sought to have the words “sexual orientation” deleted as one of the central reasons for such killings.

Written by Randy McDonald

December 22, 2008 at 10:27 pm

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