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Home Posts tagged "LGBTI"

The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?

Published on February 27, 2018        Author: 

On 9th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.

The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:

  1. Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
  2. If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
  3. According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
  4. Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
  5. If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?

In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. Read the rest of this entry…

 

SOGI Mandate Passes Third Committee Hurdle

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn. Read the rest of this entry…

 
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What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory. For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States.  However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report  (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.

Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.

However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, Read the rest of this entry…