Rainbow Charter | Recognition of Sexual Orientation under International Human Rights Law

Rainbow Charter is a column on international law and queer rights, with a keen focus on macro international law as well as deeper micro LGBTQ laws. This column also maps the current LGBTQ laws based on geogaphic regions and also aims to summarise progressive LGBTQ judgements from around the world and how it shapes the international context.

“Some say that sexual orientation and gender identity are sensitive issues. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.” 

— Former UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012

Over the years, many cultural relativists around the world have argued against a unified international human rights norm. They defend the violation of basic International Human Rights by citing age-old cultural practices; for instance, the unequal rights of Muslim women under Sharia law or the African culture for the circumcision practices of women. They argued that while human rights are universal in nature, the enforcement should be defined by individual Nation’s cultural history and context. Despite these attacks on a universal human rights regime, the current International Covenants have provided some extension of its provisions to be gender inclusive and gender sensitive.

Typically, International Law is designed in a way to cater to targeted groups, for women, children, refugees, etc., but it has fallen short in the area of LGBTQ+ laws. There are no specific Conventions or Treaties that acknowledge and protect the rights of the LGBTQ+ community. Instead, over the years, varied interpretations of existing International Human Rights regime has allowed for the recognition of sexual orientation within the framework of Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Convention on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). While the concept of sexual orientation is dynamic in this high-powered world, many countries are embracing LGBTQ+ rights within their national legislation and thereby laying a foundation for a new generation of international norms.

The First Wave of Change Under International Human Rights Law 

Article 26 of ICCPR reads as, “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law……guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status..”

The United Nations Human Rights Committee (herein known as Committee) in the case of Tonen v. Australia (1994), interpreted “sex” under Article 26 of ICCPR liberally. The Committee laid that, while sex would mean the gender of a person, it can also be understood to include sexual orientation. This changed the fate of ICCPR and essentially the interpretation of the word sex around the world for good. For the first time under the International Human Rights Law, non-discrimination on the basis of sex could mean non-discrimination on the basis of sexual orientation. Using Tonen as precedent, the Committee dwelled deep into Article 26 in the case of Young v. Australia (2004). The Committee held that same-sex partners cannot be denied the same rights as heterosexual partners on the basis of non-discrimination.

International Human Rights law derives its source mainly from treaties, custom and state practice, and general principles of law. In many instances, case laws like Tonen and Young are used to understand and interpret the meaning of the provisions. The Human Rights Committee, through these two landmark cases, read into the concept of sexual orientation within the existing provision and ruled in favour of same-sex rights in par with heterosexual rights.

Right to self-determination

International Human Rights Law allows for such a liberal interpretation of its provisions thanks to Article 1, common to, both ICCPR and ICESR. Article 1 guarantees the right to self-determination of individuals; it reads as “All people have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”

The right to self-determination sets the tone for progressive and inclusive interpretation of International Human Rights Law. By means of this, the LGBTQ+ community can seek recognition of their rights under existing provisions. It paves way for individuals to approach the Committee or such appropriate authority mentioned in the Covenant if their State is a signatory to these Covenants and explicitly violate Article 1 (Right to self-determination), Article 17 (Right to Privacy) or/and Article  26 (Non-Discrimination) on basis of sexual orientation.

Where does the law currently stand? 

In 2006, for the first time ever, 54 nations of the UN endorsed a joint statement entitled “Ending Acts of Violence and Related Human Rights Violation on the Basis of Sexual Orientation and Gender Identity” at the Human Rights Council. Similarly, in 2008 about 67 nations and in 2011 about 85 nations issued such joint statements. The initial Statement read as “the Universal Declaration guarantees all human beings their basic rights without exception, and when individuals are attacked, abused or imprisoned because of their sexual orientation or gender identity, the international community has an obligation to respond.” 

The Statement highlights the international consensus of the Member States to recognise sexual orientations under the current International Human Rights Law and going further, to acknowledge abuses on the basis of sexual orientation. Following this, the UN passed its first-ever resolution in support of LGBTQ+ rights in the same year. The Resolution called for its member states to map laws that were discriminatory in its practice based on sexual orientation. For the first time, an UN Resolution recognised sexual orientation, causing a domino pressure on all the signatories of ICCPR and ICESCR to recognise the equality to all sexual orientations and protection of sexual minorities.

The interpretation of sexual orientation under International Human Rights helps identify larger issues pertinent to the LGBTQ+ persons that go beyond discrimination; such as, abuse, right to reproductive health, right to adoption, right to private life, immigration equality, etc. Notwithstanding all these milestones in making International Human Rights Law inclusive, it is not fully equipped to protect the rights of LGBTQ+ persons. Almost 25 years after Tonen, unhindered equality and protection of the rights of all sexual orientation still remains a dream.

Manasa Ramraj is a blogger at One Future Collective.