analysisBy Eric Heinze
With no explicit reference to sexuality in treaty law, how is sexual diversity protected?
I - INTRODUCTION
A central task of the human rights movement has always been to challenge traditional and even sincerely held attitudes and customs when they entail the direct infliction of harm, suffering or discrimination upon others.
And although many different minorities have benefited, this protection has not been easily extended to sexual minorities. Some progress has been made - particularly through the progressive interpretations of human rights courts and treaty-monitoring bodies - but to date there is no explicit reference to sexual minorities in treaty law. Where, then, do they stand within international law?
II - HETERONORMATIVITY AND VULNERABILITY
The term 'sexuality' is commonly associated with intimate, personal preferences and desires. But through modern phenomena, it is also part of a very public identification process that affects the ways in which life opportunities are afforded.
In his writings on the history of sexuality, Michel Foucault explains that whereas before "the sodomite had been a temporary aberration; the homosexual was now a species ...nothing that went into his total composition was unaffected by his sexuality".
At stake is not just an opinion on private sexual acts, but completely unrelated areas of day-to-day lives. Foucault makes the distinction between two types of vulnerability they face: regulation by punishment and regulation by control.
Many states around the world have criminalised adult consensual same-sex acts. This direct form of punishment sometimes even entails the death penalty.
The risk of mob violence and 'corrective rape' also loom large. However, in other more subtle ways of control, these acts are just as marginalised. In some countries that no longer criminalise these practices, administrative measures are used to deprive them of socio-economic rights (for example pensions and housing) and leave them destitute.
What efforts have been made to give those affected human rights protection?
III - DEVELOPMENTS UNDER INTERNATIONAL INSTRUMENTS
Advancements have been channelled through two main footholds: the right to privacy and the principle of non-discrimination, which ensures general rights-based protection to everyone without distinction.
i) The European Convention of Human Rights
The most detailed case law on point has arisen under the European Convention on Human Rights (ECHR). Article 14 of the Convention follows the non-discrimination clause laid out in article 2 of the Universal Declaration of Human Rights:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The Strasbourg bodies have made progress towards recognising sexual orientation as a protected category, albeit with great hesitation. In 1981, in Dudgeon v. United Kingdom, the Court, departing from Commission's (now the work of the European Court of Human Rights) findings in earlier cases, held that a prohibition of consensual, adult homosexual conduct violated the right to privacy under article 8 of the ECHR.
However, finding the dispute sufficiently resolved under the privacy right, the Court deemed it unnecessary to examine whether there had been a violation of the non-discrimination right. Making a statement about privacy clearly did not send out as strong a message as one decided upon non-discrimination.
A decade later, in B v. France, the Court held that states parties must take certain minimum steps towards recognising the sex reassignment of post-operative transsexuals.
That case, too, was decided only with reference to article 8 privacy. The result of these cases was that the Court was able to reach decisions in favour of individual applicants while avoiding the question of whether sexual orientation should be recognised as a new category within the scope of article 14's non-discrimination.
But in 1997, further advances were made. In Sutherland v. United Kingdom, the Commission examined a British law that set a higher age of consent for male homosexual acts than for heterosexual acts, and was unable to avoid that question. The complaint was not that individuals were denied the right to engage in homosexual conduct, but only that they faced discrimination, through the higher age of consent, in their enjoyment of it.
Discrimination was found and a ruling was made in favour of the applicant. In 1999, in Salgeuiro da Silva Mouta v. Portugal, the Court found that the decision of a Portuguese court to refuse child custody to the applicant because of the applicant's homosexuality constituted discrimination on the grounds of sexual orientation. These years reveal a clear turning point in the fight for the recognition of gay rights.
At first glance, these developments seem favourable. The Court opinion in Dudgeon appeared to give sexual minorities reason for optimism, in stating:
"it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied."
In reaching that view, the Court referred to its dictum in the case of Tyrer v. UK that "the Convention is a living instrument which... must be interpreted in the light of present-day conditions". The doctrine of "evolving consensus" appears progressive insofar as the Court seems to reject any "originalist" premise of limiting the interpretation of the Convention to the intentions of the drafters.
But in practice, the doctrine has done little to promote the rights of sexual minorities. Where social attitudes do not appear sufficiently evolved, the Court can cite the doctrine to deny rights of sexual orientation or identity altogether.
By the time social attitudes have evolved, the Court merely uses it to recognise rights that, for individuals in many member states, are no longer needed. Far from developing protections against majority sentiments - a central purpose of human rights - the Court largely endorses them.
In the passage in its judgement on evolving consensus, the Court itself admits that, by the time sexual minorities had found favour in its eyes, law reform had already been completed in most member states.
Thus, far from challenging prevailing social norms, the "evolving consensus" doctrine makes them a deciding factor. It did bring a few remaining states into line in Norris v. Ireland and Modinos v. Cyprus but if UN bodies should ever accept such a doctrine, sexual minorities will have a long wait.
ii) The International Covenant on Civil and Political Rights
Have these European developments been mirrored at an international level?
Article 2 (1) of the International Covenant on Civil and Political Rights (ICCPR) also includes a non-discrimination clause modelled on the UDHR. However it provides a further non-discrimination clause in article 26.
Unlike article 2 (1), which provides for non-discrimination with regard to "the rights recognised in the present Convention", article 26 reaches considerably further, providing for "equal protection of the law" - that is, arguably, of all law - within the jurisdictions of the states parties.
The ICCPR provided for the creation of the Human Rights Committee, to issue comments on reports by states parties and examine individual complaints. Like the ECHR bodies in Strasbourg, the Committee initially displayed an unfavourable disposition towards gay rights.
However, in Toonen v. Australia, the Committee adopted the approach of the European Court in finding that a prohibition of consensual, adult homosexual conduct under the state laws of Tasmania in Australia violated the right to privacy under article 17 of the ICCPR.
Unlike the European Court in Dudgeon, the Committee went further and did expressly note its view that the reference to the enumerated category of 'sex' in article 2 (1) and 26 included sexual orientation, and to be precise found a violation of article 17 (1) and article 2 (1).
In subsequent comments on individual state reports, the Committee has cited ill-treatment of homosexuals as raising concerns about violations of the Covenant. In view of its expansive interpretation of the scope of protected categories in the non-discrimination clauses, there is good reason to believe that the Committee will be generally willing to include sexual orientation as a protected category.
But there is an important difference between the European Court of Human Rights and the Human Rights Committee. The European Convention largely dominates human rights activity within Europe and the Court now dominates the Convention.
The Court's decisions are binding in international law, and the Court's jurisprudence pervades the national law of member states. By contrast, the Human Rights Committee, while highly respected, does not play such a central role, either within the UN or within national law of states parties. Its views, although highly persuasive, are not binding in international law.
More importantly, within the UN, the Human Rights Committee is but one of several prominent bodies specifically responsible for the promotion of human rights. These other bodies largely shape the UN human rights agenda and have largely failed to take steps to recognise sexual minorities.
The longer sexual minorities fail to get an international instrument to deal with their needs, the more justified their exclusion and discrimination will look.
An example of this process of inclusion-as-exclusion is found in the genesis of the Beijing Declaration and Platform for Action at the Fourth World Conference on Women 1995. The Declaration is not just a few principles; it is a comprehensive handling of women's issues, with 346 detailed paragraphs that set forth the problems of women in an exhaustive, definitive statement (see paragraphs 22-34).
However, any mention of women's problems arising from sexual orientation was expressly excluded under threats by states to refuse to endorse the document. The international human rights movement must proceed with caution for such instances are not merely characterised as giving sexual minorities "nothing"; they actively brand sexual minorities unsuitable for human rights protection.
IV - CULTURAL RELATIVISM
Cultural relativism is often invoked as an explanation for not enforcing these rights more rigorously. Regional blocs have emerged who see sexual minorities as a distinctly Western and European tradition, and actively try to resist engagement with the issue. Would it not be "cultural imperialism" to disregard their beliefs and insist they adopt these rights?
"It's un-African!" has been a familiar retort among political and religious leaders across many post-colonial African states. The claim that sexual minorities form no part of African traditions raises thorny issues. In a narrow sense that claim is true, but in broader ways it is false.
It is true in the sense that the historically recent, socio-scientific vocabulary of 'homosexuals', 'lesbians', 'bisexuals', 'transsexuals', and similar concepts have strongly Western origins, with no obvious counterparts in non-European languages.
Many independent African states still prohibit homosexual acts, withhold legal protections to sexual minorities, and limit the free speech of sexual minorities seeking to pursue their rights through democratic processes. Western notions of 'lifestyle choices' involving minority sexual identities may therefore strike many post-colonial Africans as unfamiliar and may seem to arise out of cultural traditions alien to their own.
Within a broader historical perspective, however, that culture of greater choice in matters of sexual relationships is no more 'un-African' than it is 'un-European'. Makua Mutua writes:
"Evidence suggests that in pre-colonial Africa, the matter of sexual orientation was not generally contentious. In fact the hatred of gay people and homophobia that are exhibited today have virtually no basis in African culture. In Uganda, as in many other African states, homosexuality and related practices were criminalised for the first time by the colonial state."
Today, in defence of discrimination against sexual minorities, a characterisation of, for example, homosexual conduct as "un-African" is promoted by political elites in non-Western states routinely relying upon European colonial statutes.
For example, Singapore and Kenya - whose peoples had no relevant contacts with each other in pre-colonial history - both maintain 19th century penal codes. Sections 162, 163, and 165 of Kenya's penal code maintains a prohibition on "carnal knowledge against the order of nature". Such a vocabulary has more to do with Victorian readings of the Old Testament Sodom and Gomorrah story than with anything that can clearly be called "traditional African values".
And the notion that something as complex as sexual identity should be subject to uniform attitudes throughout all African cultures and histories becomes itself a perpetuation of the colonial habit of viewing all Africans, and all African cultures, as essentially the same.
If it is illegitimate for Europeans to essentialise Africans, it remains questionable when African leaders engage in the same practice. In countries where there is public condemnation and a culture of violent retaliation against homosexuality, it is almost impossible to accurately gauge the scale of private support.
Mutua goes on to say that, "when President Robert Mugabe of Zimbabwe attacks gays as sinners, he does not say gays have sinned against the African God". In the same movement, homosexuality is seen as alien and Christianity is seen as authentic. However both were brought to Africa together, as part of the colonial project.
b) Static viewpoints
Opinions and cultures are never static. In the European Court of Human Rights case of Dudgeon, some of the opinions of dissenting judges have gone largely unnoticed. Judges Walsh and Zekia in that landmark case wrote that homosexuality:
"comes from a lack of normal sexual development ... the activities must be regarded as abnormalities" and that "while considering the respect due to the private life of a homosexual ... respect is also due to the people...who are completely against unnatural immoral practices".
No sexual identity or relationship exists in abstraction from a wider social context. And only a few decades ago, Europeans still overwhelmingly viewed sexual minorities as sinful, immoral, dangerous or mentally ill, and some Western Europeans still hold such views.
The fact that basic rights have been advanced in these countries should give hope that this can spread to ostensibly hostile countries - not just create another oversimplified binary between the West and Africa.
Furthermore, within Africa, South Africa has one of the world's most progressive and accommodating constitutions. Section 9 (3) of its 1996 post-apartheid constitution expressly states that:
"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."
It has declared many other laws criminalising sexual orientation as unconstitutional.
III - OTHER DEVELOPMENTS
In 2006, several human rights specialists published a document known as the Yogyakarta Principles. While the UN has largely stayed silent on this area, and many states around the world still oppose the rights of sexual minorities, these experts gathered to show how existing international human rights law can be applied to sexual orientation and gender identity.
The Yogyakarta Principles spells out 29 principles that guide states in the proper application of human rights as they relate to sexuality. It has been viewed as authoritative by some states, and has aided in some positive, emancipatory legal change. However, it is ultimately not binding on states and this has limited its effectiveness.
IV - CONCLUSION
Many have voiced the concern that political and religious leaders target sexual minorities as a way of deflecting attention to their own corrupt practices. Government officials who have perennially maintained undemocratic and repressive societies, with widespread poverty and underdevelopment, have frequently been accused of promoting myths about sexual minorities and fomenting hostility against them as means of garnering public support in political environments in which they have often failed to deliver prosperity for their people.
Africans, like others, have too often had to learn and re-learn the dangers of political and religious leaders creating external or internal 'enemies', scapegoats, in order to consolidate popular support. Rwandans, Congolese, Sudanese or Zimbabweans have confronted that bitter reality no less than Bosnians, Chechens, Jews or African-Americans. In the 21st century, part of the African, and global, human rights challenge will be to re-think concepts of sexual diversity just as concepts of racial, ethnic or religious diversity have had to be re-thought.
For more information about the course please read our introductory blog post.
QUESTIONS FOR CONSIDERATION:
1. Why is there no international treaty for sexual minorities?
2. How have existing rights been used to provide protection?
3. What are the shortcomings of developments in the European Court of Human rights and the Human Rights Committee?
4. Is homosexuality un-African?
5. How do you interpret the influence of religion in homosexuality?
6. What are the benefits and negatives of the Yogakarta Principles?
 p340, Quoted in Susan Marks and Andrew Clapham's 'International Human Rights Lexicon', Oxford University Press (2005)
 Dudgeon v UK, 45 ECHR at 23, para. 60 (1981)
 P459 Makau Mutua in Sylvia Tamale's African Sexualities: A Reader, Pambazuka Press (2011)
After completing studies in Paris, Berlin, Boston, and Leiden, Eric Heinze worked with the International Commission of Jurists and UN Sub-Commission on Human Rights, in Geneva, and on private litigation before the United Nations Administrative Tribunal in New York. He is a member of the Bars of New York and Massachusetts, and has also advised NGOs on human rights, including Liberty, Amnesty International and the Media Diversity Institute. He currently co-ordinates Queen Mary's Inter-Departmental Philosophy Programme.