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Home EJIL Analysis The development on the international human rights framework on sexual orientation and gender identity

The development on the international human rights framework on sexual orientation and gender identity

Published on June 21, 2011        Author: 

Allehone Mulugeta Abebe is an Ethiopian diplomat based in Geneva, Switzerland. He serves as a co-chair of the Technical Advisory Group of the Global Commission on HIV/AIDS and Law.  Opinions expressed in this piece do not necessary reflect the views of the institutions he is affiliated with.

On 15 June 2011 the Human Rights Council’s adopted an extremely significant Resolution on “human rights, sexual orientation and gender identity” (A/HRC/17/L.9/Rev.1, available through ODS). It follows the Political Declaration on HIV/AIDS adopted by the General Assembly on 10 June 2011 which for the first time explicitly recognizes how discrimination, violence and stigma underlines the vulnerability and challenges men who have sex with men face in accessing HIV/AIDS services. These instruments underscore the fact that discrimination and stigma against people on the basis of their sexual orientation is a violation of basic freedoms and individuals rights.

The twin global movements centered on the call for the dignity of persons with different sexual orientation and gender identity and people affected by HIV/AIDS have had consequential impact for the development of international human rights law. They have particularly led to the creation of new global institutions to stir and coordinate international response against the epidemic. Institutions such as UNAIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria have been important sources for the development and elaboration of norms which seek to protect these vulnerable communities. The novelty of these institutions and their role in the development of international law not only stems from the new areas of law they canvassed but also from the direct involvement of CSOs and individuals particularly those living with HIV/AIDs. Several decisions taken by these institutions particularly those relevant to the protection of people with different sexual orientation, sex workers and people who take drugs have influenced decision making by the General Assembly and Human Rights Council.

I have had the privilege of co-chairing, together with the Honorable Michael Kirby, a prominent former judge and a human rights campaigner from Australia, an advisory team to the Global Commission on HIV/AIDS and Law. Launched by UNDP in 2010, the Commission is informed by these global movements of solidarity and trends in human rights, and seeks to encourage legal reforms by generating evidence and right-based recommendations in the context of HIV/AIDS and law.  Among others, the Commission has the purpose of encouraging states to take measures to halt discrimination and stigma as a part of their national response against HIV/AIDS. So far the Technical Advisory Group (TAG) and the Commission have held several regional dialogues and have benefited from inputs and submissions from various stakeholders.  The adoption by the General Assembly of the Political Declaration on HIV/AIDS and by the Human Rights Council of its groundbreaking resolution on “Human Rights, Sexual Orientation and Gender Identity” will profoundly boost the legal and political basis not only of the efforts to address the challenges of HIV/AIDS but also the suffering and discrimination of people with different sexual orientation across the world.

South Africa, which has one of the most liberal constitutions that grants full protection from discrimination on the basis of sexual orientation, initiated the resolution in the Human Rights Council with the support of  key western and  Latin American states. While South Africa initially explained that its proposal sought to establish an inter-governmental forum with the mandate of discussing sexual orientation within the Council, the intense negotiation that ensued led to a resolution with a narrower scope.  But the significance of the resolution is immense. It condemns discrimination and violence based on sexual orientation and gender identity occurring in all parts of the world; mandates the Office of the High Commissioner for Human Rights (OHCHR) to undertake a global survey of discriminatory laws and practices to be finalized by December 2011; and decided to organize a panel during the 19th session of the Council to hold “ constructive, informed and transparent dialogue on the matter.”  The timing coincides with the release of the report of the Global Commission on HIV/AIDs and Law and the holding of the meeting of UNAIDS’s Program Coordinating Board which will specifically discuss the role of an enabling legal environment for the promotion of universal access to prevention,  treatment, support and care services.

As the premiere UN body on human rights, the Human Rights Council plays a key role in the fight against discrimination and stigma. The key decisions by the General Assembly and the Council, however, come in the context of a much broader trend in international human rights law. Human rights treaty bodies and Special Procedures have increasingly cited the particular vulnerability of persons with different sexual orientation and gender identity. States have also put forward key recommendations during the Universal Periodic Review. Regional human rights mechanisms have also taken similar steps. For instance, the African Commission on Human and Peoples Rights has recently established a forum that is looking at the issue of human rights in the context of HIV/AIDS.  All these global and regional efforts not only will help address the specific health problems vulnerable communities suffer but also create a framework for the protection of these persons and groups from discrimination and stigma.

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