Co-authored by Emanuele Rizzardi
(NEW YORK – C-FAM) Two recent initiatives out of the Council of Europe (CoE) on sexual orientation and gender identity are seen as the first major step to codify the radical Yogyakarta Principles into the framework of international institutions.
The Yogyakarta Principles (Principles) is a 2007 document adopted by a group of human rights “experts” including several United Nations (UN) Special Rapporteurs and members of UN treaty monitoring bodies. The Principles list human rights that already exist in binding international law, and reinterprets each one to include homosexual “rights.” Further, they seek to ensure that the exercise of freedom of expression and religion do not violate “the rights of freedoms of persons of diverse sexual orientations and gender identities.”
The Council of Ministers (CoM) Recommendation states “that neither cultural, traditional, nor religious values, nor the rules of a ‘dominant culture’ can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity.” Every paragraph of this document’s appendix refers directly to the aspect of the Yogyakarta Principles, including the right to security and protection from violence, to privacy, to respect for same-sex marriages and to adoption for homosexual couples.
The Parliamentary Assembly of Europe (PACE) Resolution 1728, was adopted with 51 votes in favor, 25 against and 5 abstentions. It repeats verbatim the Yogyakarta Principles definition of gender identity that “refers to each person’s deeply felt internal and individual experience of gender.” The European People’s Party, led by its newly elected Italian chairman Luca Volontè, succeeded in passing several amendments which helped to mitigate the most radical provisions of the original text. One amendment provides a stronger exemption to “religious institutions and organizations,” while other amendments prevented new rights to same-sex marriage or adoption by homosexual couples.
Despite this, the final PACE resolution succeeded in capturing many of the core new “rights” contained in the Yogyakarta Principles, including a hate speech provision defined as “speech likely to legitimize and fuel discrimination or hatred based on intolerance.” According to Gregor Puppinck, Director of the European Centre for Law and Justice, the hate speech provision is too “broad and vague” and poses serious risks to religious preachers who cite the biblical passages about the sinfulness of homosexual behavior.
Prominent among those invited to speak during the drafting meetings of the PACE resolution was Michael O’Flaherty, a member of the UN Human Rights Committee and a professor at the University of Nottingham, who is widely credited as the principle author of the Yogyakarta Principles. Although not mentioned on his faculty profile, O’Flaherty is a Catholic priest who is still listed as a member of the clergy for the Diocese of Galway, Ireland.
The CoE, founded in 1949, is the primary European institution devoted to safeguarding human rights, of which the European Court of Human Rights (ECHR) is the judicial body. Although neither CoE document is binding, Roger Kiska, legal counsel for the Alliance Defense Fund, warned the Friday Fax, “These CoE documents in the future would be likely quoted by the ECHR and influence its interpretations.”
(For more information on the Yogyakarta Principles, please see the C-FAM Briefing paper "Six Problems with the Yogyakarta Principles.")