Three international homosexual rights advocacy organizations are jointly urging the treaty compliance committee that reviews implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to incorporate the controversial “Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity” in its recommendations.
The three groups – ARC International (ARC), the International Gay and Lesbian Human Rights Commission (IGLHRC) and the International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA) – lobbied the Committee on Economic, Social and Cultural Rights (CESCR) last month to include a reference to the Yogyakarta Principles in a new “General Comment,” or interpretive guideline, that CESCR is drafting in order to “assist” states “in meeting their treaty obligations.”
As with all other United Nations (UN) treaties, ICESCR is silent with regard to “sexual orientation” and “gender identity,” fluid concepts that advocates say should be included within specially-protected rights categories.
The effort appears to be part of a recent, coordinated push to elevate the status of the Yogyakarta Principles from a policy statement crafted by UN bureaucrats and representatives of non-governmental organizations to a soft-law standard that would increasingly be referenced in more formal contexts, such as by the bodies charged with reviewing countries’ compliance with international treaties.
Last month a Dutch government official also called upon nations to join his country in accepting the Yogyakarta Principles.
By pushing the Yogyakarta Principles before treaty monitoring committees like CESCR, homosexual rights proponents appear to be following a strategy used by abortion rights activists seeking to overcome opposition to abortion by states, arguing that domestic legislation should give way to new, evolving soft-law international norms, despite the absence of reference to such “norms” in actual hard-law treaties ratified by sovereign nations.
In addition to utilizing compliant treaty bodies, the playbook calls for advancing the argument in academic literature. The joint statement by ARC, IGLHRC and ILGA appears derived in substance from a 2008 Human Rights Law Review article authored by Michael O’Flaherty and John Fisher. O’Flaherty is a member of a separate treaty monitory body, the Human Rights Committee (HRC), and a Rapporteur for the Development of the Yogyakarta Principles, while Fisher is ARC’s activist co-founder.
In their article, “Sexual Orientation, Gender Identity, and International Human Rights Law: Contextualizing the Yogyakarta Principles,” O’Flaherty and Fisher fault CESCR for lagging behind O’Flaherty’s HRC in urging member states to adopt sexual orientation non-discrimination policies via recommendations that the authors acknowledge to be “non-binding and flexible.” Statistics they cite, however, show little distinction between CESCR, which raised “sexual orientation-related discrimination” concerns with 11% of the states that appeared before it, and HRC, which did so 15% of the time.
ARC is a Canada-based non-governmental organization committed to advancing “recognition of sexual orientation and gender identity issues at the international level.” IGLHRC emphasizes advocacy and “coalition building,” while ILGA is an umbrella organization which in 1993 became the first homosexual group to be granted UN consultative status. In 1995, however, the UN’s Economic and Social Council stripped ILGA of its status over allegations of pedophilia advocacy by certain member organizations.