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In Serbia in there were violent clashes between police and groups of protesters. Not until was a successful parade held. In August Ukraine banned its Pride march. Since marches in Israel have been marked by controversy and a series of legal challenges particularly from religious groups. One of them died. Denial of permission to hold marches or assemblies promoting gay rights or restrictions on them have been held to violate Articles 11 freedom of assembly and 14 of the ECHR and Article 21 of the ICCPR freedom of assembly.

The Russian Federation considers that its homosexual propaganda laws do not constitute sexual orientation discrimination but are aimed at the protection of children. Particular international controversy has focussed on bans in the Russian Federation on homosexual propaganda, specifically in relation to minors. The legislation has been used to arrest and convict activists holding signs expressing support for equality and affirming LGBT human rights.

The Law levied fines for promoting homosexuality. Some very protective jurisprudence on persecution on grounds of sexual orientation has been developed in a refugee context. Such criminalization of homosexual acts by this provision was considered to be in itself a form of persecution. A substantial body of States do not accept it as an existing right based on a living instrument interpretation of human rights treaties. Nor would they accept it as a new right.


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Their opposition is reflected in the existence of a significant degree of legislative and judicial practice—including in many States which are legally bound by the relevant human rights treaties—and strong public opposition, particularly linked to tradition, culture, religiosity and relative poverty. The divisions between States appear to be fundamental. The widespread and significant opposition from States to this normative rise of sexual orientation discrimination has created a situation in which there is a very serious tension between what is asserted to be clear international human rights law and what are clearly the practices of a large number of States from all regions of the world and marked regional differences.

It is notable that both sides of the argument have prayed in aid the same paragraph of the Vienna Declaration to support their understanding of human rights law. Interestingly, however, it is actually the very fragmented nature of international law that allows such differences to remain unresolved. Where States have accepted human rights treaties they are obviously legally binding on them as such.

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However, few human rights treaties have a system under which a binding legal interpretation of the treaty is ever reached. To the extent that they do not, it is open to States to adopt and maintain different interpretations of the treaty. International law offers only limited possibilities for this. Even then those States may comply in the most minimalistic fashion and over lengthy periods of time or not at all.

Individuals can submit petitions to the Inter-American Commission on Human Rights but its decisions are not legally binding. Judgments of the CJEU are legally binding but cover only a limited range of issues. The same is true for all of the UN treaty bodies. Overall then, it is not abnormal for interpretational differences relating to human rights treaties to remain unresolved.

This leaves a significant space for contestation and argument at local, national, regional and international levels. If individual States are isolated in their interpretation it may be difficult for them to effectively and credibly maintain their views if there is an overwhelming consensus of States, regional and international human rights institutions and procedures against their interpretation. What is unusual in relation to sexual orientation discrimination is the very large number of States sharing the same interpretational differences.

Ultimately, for it to be regarded as legally binding, international law requires the consent of States. Absent where they have accorded national or international human rights bodies the power to take binding legal decisions, State consent is clearly lacking in some regions in the realm of a prohibition on sexual orientation discrimination.

If the preceding analysis and understanding are broadly correct as a matter of international law, attention needs to be focussed on the question of what are the most appropriate legal and strategic responses to manage or bridge the very different and apparently rather polarized views of States on the issues. The first strategy is to focus on what unites States rather than divides them. The surveys of international and regional human rights practice in Sections 3 and 4 above and the national practices in Section 5 above are striking for their variety, diversity and complexity.

The situation regarding sexual orientation issues has gradually changed in Western Europe in recent decades but it has moved much further and faster than the rest of the world. The CoE is in the vanguard but even then some significant signs of opposition remain, particularly in States such as the Russian Federation, Moldova and Ukraine. Within the scope of its competence the EU provides significant protection from sexual orientation discrimination. It would be simplistic, however, to present the situation in States and regions as totally good in some and totally bad in others. Thinking in terms of regional blocks opposed to a norm on sexual orientation discrimination is also misleading.

Although a small number of African States have recently seen the introduction of stricter laws on homosexuality and a greater emphasis on enforcement, there is also a clear historic trend towards the decriminalization of homosexuality.

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Moreover, it has to be remembered that it was only in that Europe itself became free of such laws. Similarly, discussion in terms of regional or traditional values or a singular idea of a family belies the historical and social complexity of societies and communities in all regions of the world. Although the CoE is portrayed as being at the forefront in terms of sexual orientation discrimination, it is often forgotten that it has proceeded incrementally and by looking to the emergence of consensus. Given the political sensitivity of the issues, the existence of a significant degree of legislative and judicial practice from States inconsistent with a prohibition on sexual orientation discrimination, accompanied by strong public opposition in many States and regions, one might at least question the long-term wisdom of that practice as it leaves a huge gap between the law and the practice of many States Parties.

Another obvious difficulty in affording States a margin of appreciation which can be affected by presence or absence of consensus are the much larger number of States concerned parties to the ICCPR as compared to 47 parties to the ECHR and the even greater massive disparities between them than between members of the Council of Europe.

There is arguably a greater risk or likelihood that the margin of appreciation doctrine could be used more to confirm prevailing social norms than to challenge them, but that may be an inherent element of a universal system. It would also avoid the two extreme alternatives. Under the first, States will continue to maintain that sexual orientation discrimination is not a human rights issue at all.


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  • Under the second, sexual orientation discrimination is accepted as a human rights issue but a large number of States take the view that such discrimination is justified for a broad range of traditional, cultural and religious reasons. The UN Human Rights Council is an important political forum for the development of new thinking on human rights. However, tendencies towards politicization along regional lines have been enhanced in relation to the issue of sexual orientation and gender identity with voting patterns exposing major divisions.

    Repeating the resolutions just re-emphasizes the differences. So too when differences on sexual orientation issues impact on other resolutions on the protection of the family or traditional values. If the EU as a block seeks to advance sexual orientation issues in resolutions, it will meet resistance. By promoting a dialogic approach, the UPR process arguably offers an alternative to a confrontational and antagonistic process of attempting to enforce politically and legally controversial human rights norms. But the process needs lots of patient diplomatic alliance building among like-minded States to work.

    The UPR is ultimately a State-centric process. However, the tripartite reporting and the dialogic structure have provided advocates on sexual orientation issues with the opportunity to use the international space as an amplifier to get issues heard at both national and international levels.

    There has been a very large increase in SOGI-related content in submissions from civil society actors from the first UPR cycle compared to the second. The number of State sexual orientation recommendations has simultaneously increased as has the number of States willing to make them. However, decriminalization may require different strategies and stages depending on the legal system, degrees of entrenchment and degree of constitutionality, and receptivity to international or domestic human rights norms in any particular country.

    Moreover, some States have been more willing to respond more positively in terms of acting against violence based on sexual orientation and police violence, education and impartial investigations. When an issue is politically toxic between and within States it can be helpful to change the perspective and analyse the issue in terms of economic development, about which all States are interested. The United States has announced it would use all available mechanisms, including measures related to development cooperation, to promote the rights of LGBT persons.

    The US cut aid, cancelled a military exercise and imposed visa bans on officials. However, the risks of using aid as a human rights strategy on culturally sensitive issues are well known. Aid conditionality can undermine and harm local movements that are working hard to improve understandings of sexual orientation and gender identity in specific local contexts. There are the same general perceptions of imperialism, neo-colonialism and Western imposition of values.

    2015 AAA Invited Session: IN SEARCH OF WOMEN IN THE PALEOLITHIC

    Conditionality of foreign aid only reinforces the argument that homosexuality is a Western construct. The second, related gap was institutional. Information had been collected by existing human rights mechanisms on an ad hoc basis. The only discussion among States was the one-off Panel debate. Violence and discrimination against LGBT people was systematic; the response had to be too. In future, both reporting of these violations and discussion of State responses should be institutionalized and mainstreamed. Human rights awareness can promote rights activism at the local national level.

    Financial and human resources are almost always limited. The use of modern communication methods, particularly use of videos, films and images on the internet and contacts via social media, allows for NGOs and civil society actors to be established more easily and to communicate more effectively and efficiently.

    These alliances should include national human rights commissions, some of which have done excellent work on sexual orientation issues. While education, dialogue and information are crucial, it has undoubtedly also been the case that national, regional and international legal prohibitions on race and sex discrimination have played an important part in developing and changing public attitudes on those issues. States sometimes need to lead debates on human rights issues by taking positions of principle, even if it can be argued that in doing so they are making an argument beyond the scope of existing law.

    Moreover, most States are complex and contain a range of institutional actors. It is not necessarily the case that the views of States in international forums reflect all of the major institutional actors within those States or public opinion within those States. However, the significant divisions between States in those forums were reflected in the Pew Center survey, conducted in 39 countries among 37, respondents.

    Its report found huge variance by region on the broader question of whether homosexuality should be accepted or rejected by society. There was widespread rejection in predominantly Muslim States and in Africa, as well as in parts of Asia and in Russia. These are also among the richest countries in the world. Age was also a factor in several countries, with younger respondents offering far more tolerant views than older ones.

    It would also suggest that encouraging debate and spreading information amongst younger persons is likely to have the greatest long-term effect. While gender differences were not prevalent, in those countries where they were, women are consistently more accepting of homosexuality than men. To the extent that high religiosity tends to correlate with opposition to homosexuality it is important to emphasize that religions are not uniform or homogenous and are conscious of the risk of being out of step with evolving societal attitudes. Along with many States, the Vatican City does not see opposition to gay marriage as inconsistent with that view.

    Theory of Sexual Politics

    It is clearly the case, however, that there is far less agreement or consensus between States on sexual orientation discrimination in relation to same-sex issues concerning marriage, family life, adoption, sex education and the general education of children in relation to sexual orientation issues. It may seem trite but change in these areas is most likely to evolve as a result of more education and information.

    There is no doubt that the role of education in challenging and changing attitudes is fundamental. Protection against discrimination based on sexual orientation ultimately depends on societal attitudes, which are crucially linked to education, but also on the existence of adequate laws, policies and political will to implement them, which vary considerably even within the same country.

    What arguably distinguishes sexual orientation discrimination claims has been the geographically widespread political and legal opposition.