Explanatory Notes
EXPLANATORY NOTES
Recent pressure to give international recognition to social and legal arrangements between individuals of the same sex in the context of the United Nations has led to confusion and acrimony in international negotiations. Unfortunately, this has led to the exclusion of the family altogether from recent debates in the UN General Assembly. This position statement and explanatory notes are intended to constructively move the debate beyond the current impasse to a more fertile approach.
Note 1
Binding international instruments also enshrine Article 16. By virtue of these provisions the family is a proper subject of human rights and possesses adequate legal personality in international human rights law.
UDHR 16, (ICCPR 23, ICESCR 10)
HRC Resolution and Report.
At least 111 countries have constitutional provisions that echo Article 16.
By virtue of these provisions in international law the family is a proper subject of human rights and possesses adequate legal personality in international human rights law, even as the family acquires different legal character in different legal systems and social contexts, as well as diverse cultures and religions.
See WORLD FAMILY DECLARATION, available at http://worldfamilydeclaration.org/WFD; See Holy See, CHARTER OF THE RIGHTS OF THE FAMILY, (October 22, 1983), available at: http://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_19831022_fa mily-rights_en.html; See also Pontifical Council for the Family, THE FAMILY AND HUMAN RIGHTS (December 16, 1998), available at: http://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001115_fa mily-human-rights_en.html
Cite ICPD, Beijing and Copenhagen on “coultures religions etc…)
The ICESCR established, most relevantly, the obligation of state parties to that convention to provide the “widest possible protection and assistance to the family,” and that the right to an adequate standard of living extends not only to individuals but to individuals “and their families” (ICESCR 7, 11.1). The ICESCR does not merely “entitle” the family to generic protection and assistance, as the ICCPR, but requires governments to make all “possible” efforts to ensure this entitlement is fulfilled in law and fact.
Note 2
The right to marry and found a family presupposes a man and a woman that freely decide to found a family, and cannot be understood to include other social and legal arrangements between adults, including between individuals of the same sex.
This fundamental human right antedates any formal recognition of marriage and the family by society and the state, and sanctions the self-evident truth of marriage as a permanent and exclusive union of a man and a woman naturally oriented towards procreation and childrearing.
Vienna Convention on the Law of Treaties. Meaning of article 16 and good faith interpretation.
Family and marriage are not separates in UDHR – and no Un consensus since has separated these.
“Various forms” has now been rejected. Even when used it only referred to heterosexual unions.
What is Marriage – George, Girgis, Anderson
At the time of the negotiations. Glendon
Family cannot be understood in wide sense. R. Joseph – the fact that the UDHR has separate article for right of children born our of wedlock is the exception that justifies the rule.
Note 3
Such relations are not analogous because… (What is marriage).
The Convention on the Rights of the Child re-affirmed the important social role of the family “as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.” CRC Preamble
The mandate of the secretariat and agencies emanates from the sovereign will of UN member states. The expression of the sovereign will of UN member states enshrined in Article 16 is still the normative framework for the secretariat and agencies to understand the family and develop policies and programs to strengthen and protect it. The secretariat and agencies may not expand their mandate unilaterally, or change the substance of Article 6 of the UDHR to include relations between individuals of the same sex.
No UN consensus on SOGI of SSM
List of abuses, OHCHR report, 12 agencies statement, treaty body recs
Note 4
Any mention of the family in UN resolutions should re-iterate the understanding at the founding of the United Nations that the family is the “natural and fundamental group unit of society.” This language excludes any international recognition for relations between persons of the same-sex as capable of constituting a “family,” as in the case of recent social and legal arrangements like homosexual civil unions and so-called gay marriage.
Abandoning or forgetting Article 6 of the UDHR will lead to the further erosion of this understanding of the family in international law and policy, and will eventually create the space within the institutional framework of the United Nations for a harmful re-definition of the family that reduces family to government sanction of adult sexual and emotional desires, where children are commodities to be manufactured, contracted for, and ultimately purchased.
The General Assembly continues to differentiate between the family and other social and legal arrangements that are not equivalent to the family by excluding the previously agreed phrase “various forms of the family” (UN resolutions 2013-2015) and distinguishing “the family” from “the household” (Agenda 2030).
Note 5
This includes but is not limited to “various forms of the family exist”, “diverse forms of family”, and even the use of the plural “families” in resolutions where Article 6 of the UDHR is not explicitly reaffirmed. Though some of these phrases have been used in past UN consensus documents, they are no longer a viable option because of the recent advent of same-sex marriage and civil unions for individuals of the same sex. Any ambiguity with regard to what constitutes a family presently will be construed by the UN secretariat and agencies as international recognition for social and legal arrangements between persons of the same-sex as “families” and a mandate to promote same-sex “families”, as well as sexual orientation and gender identity as categories in international human rights law or UN social policy.
The secretariat and UN agencies have been advancing a controversial social agenda under the guise of human rights for individuals that identify as
lesbian, gay, bisexual, transgender. An OHCHR report from November 12, 2014, titled “The Role of the United Nations in Combatting Discrimination
and Violence against Individuals Based on Sexual Orientation and Gender Identity” (available here) details how every UN agency is now
working to promote this agenda throughout the UN system.
Note 6
Validating the choices of adults to live with individuals of the same sex or in other social and legal arrangements that are not analogous to the family, and equating them to the family, is not necessary to prevent discrimination against children.
Right to know mother and father
Best social science. Regnerue, Sullins, Plieto, Chetty, Wilcox
Note 7
All human beings possess the same fundamental rights by virtue of their inherent dignity and worth. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Preamble and Article 1.
Human rights by definition belong to all people because of their humanity. Individuals who identify as LGBT have no special additional human rights beyond those of other citizens by virtue of their perceived sexual orientation and gender identity or their sexual behavior.
Recent debates on the use of the terms “sexual orientation” and “gender identity” within the United Nations in reference to individuals who identify as lesbian, gay, bisexual, and transgender (LGBT) are often conducted with the assumption that these notions are clearly defined in science and law. In fact, there is no scientific consensus on how to define sexual orientation, very few countries treat individuals that identify as LGBT as a discrete class of persons, and many proscribe homosexual conduct because of moral and public health concerns.
International law does not protect unfettered sexual autonomy, any kind of sexual conduct between consenting adults other than in the context of marriage between a man and a woman. The only scope for autonomous sexual choices recognized in international law is found in the context of the right to freely marry and found a family (UDHR 16, ICCPR 23 and 24, CESCR 10) and the equal right of men and women to decide freely and responsibly on the number and spacing of children (CEDAW 16). The family, in the UDHR 16 and 15, ICCPR 23 and 24, and CESCR 10, is strictly understood as the union of a man and a woman in marriage, and their offspring.
The right to privacy and family life does not protect unfettered sexual autonomy, and can only be understood to protect the exercise of sexual autonomy in the context of the right of men and women to freely marry and found a family. The UDHR and ICCPR indeed recognize a right to be free of interference in one’s privacy and family (UDHR 17; ICCPR 17). But at the time these instruments were negotiated and adopted by UN member states most countries outlawed sodomy. Many countries also restricted or penalized other forms of sexual conduct between consenting adults, including adultery and fornication, aside from sodomy—and still do. Therefore, the right to privacy and family life cannot include the right of consenting adults to engage in any kind of sexual conduct whatsoever, and can only be understood to protect the exercise of the right of men and women to freely marry and found a family.
Similarly, expressing a sexual preference, engaging in specific kinds of sexual behaviors, or professing a different sexual identity from one’s biologically determined sexual identity do not entitle individuals to special legal protections or recognition under international law beyond those afforded equally to all by virtue of their humanity.
