The Universal Declaration of Human Rights was passed as United Nations’ resolution 2200 A [XXI]. It was created in1948 shortly after the UN’s erection. Most legislation surrounding human rights enacted by the United Nations looks to this document for guidance.
One need only look to a few of the Articles of the Universal Declaration of Human Rights to see where Israel is in violation of the Declaration. Article three, “Everyone has the rights to life, liberty and security of person.” By Israel’s’ actions of occupying the Palestinian territory, Israel violates, at the very least, many Palestinian’s liberty and security. Article five, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” From reading the United Nations’ Resolution stated above, one can find a concern regarding thousand of deaths and injuries of the Palestinian people, by the Israelis. This is an example of the Israelis subjecting Palestinian people to cruel, inhuman or degrading treatment. Such an action is in clear violation of the Universal Declaration of Human Rights. These are at least two areas where the actions of one member-state violate the Universal Declaration of Human Rights.
One may ask, should the member-states be required to follow the Universal Declaration of Human Rights given that it is only a resolution and not International Law? The response to this is simply logical. The Declaration was passed by the United Nations General Assembly; its main legislative body, as a Resolution. While resolutions are not law, they are an act of the United Nations. Each member state has a representative in the General Assembly to voice that state’s position. Likewise, the Declaration was passed under the authority of the United Nations Charter. Each member states agrees when becoming a signatory to the Charter, to abide by its dictates. As such, member-states must abide by the Universal Declaration of Human Rights.
While member states do continue in there hostilities towards the Declaration, there is some progress being made. A report by the International Law Association indicates, “There would seem to be little argument that many provisions of the Declaration today do reflect customary international law.” This shows an idea that while United Nation’s member-states do not always abide by the Declaration, there is some progress towards its ideals (Hannum 135). The next question is, how does the Declaration purport to protect homosexual persons?
The document does not specifically provide for the protection of gay peoples. As in many areas of law however, interpretation of a clause or clauses is of vital importance. The Encyclopedia of Human Rights Issues since 1945, asserts, at least eight of the 30 articles in the declaration can be interpreted to protect gay peoples. The clauses of those articles are:
Article three, “Everyone has the right to life, liberty and security of person.”
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Article five, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 12, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right of the law against such interference or attacks.
Article 13, “(1) Everyone has a right to freedom of movement and residence within the borders of each states. (2) Everyone has the right to leave any country, including his own, and return to his country.
Article 14, “(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
One must understand why these articles are important. Article three, in some countries; it is illegal to be homosexual. It may be difficult for the policing authorities to arrest one for being homosexual. It is easy however, to arrest one for acting in a homosexual manner. Arresting one for acting in a homosexual manner, violates one’s right to liberty and security of person. They are being targeted specifically for who they are and not for any action, which truly tends to harm a society. The punishment can be death. Putting one to death simply for being who they are violates one’s right to life. There is truly no manner of due process where by one should have their life taken for some horrific action.
Article five, Governments punish people for being homosexual, as I have stated above. Some of the methods used for punishment are cruel, such as hanging, burning and being shot in a public square. Such actions are cruel and torturous. Further, is the issue of degrading punishment or treatment. This sections applies to the United States. Homosexual persons in the United States are subjected to degrading treatment and punishment. Later I will explain the Bowers case which swill show how to men were arrested for engaging in sexual intercourse in the state of Georgia. The United States Supreme Court upheld Georgia’s law. This is an example of the United States treating homosexual persons in a degrading manner.
Article 12, Being or acting homosexual is a private matter. One in which the government should not intrude into. Given governments do not prosecute people for being heterosexual or acting in a heterosexual manner, then it follows as an arbitrary act for a government to interfere with one who is homosexual.
Article 13, One must remember the discussion in this paper is the protection of homosexual persons. It is very likely that if a homosexual person left their country, they would not be allowed to return, depending on the government. While this may not seem like a possible situation, it is. It is easier for a nation-state to expel one from their territory, rather than prosecute them for being homosexual.
Lastly, article 14, If one lives in a nation-state such as Egypt, where they will be prosecuted for being gay, this is important. In 2001, over 40 Egyptian men were arrested for allegedly practicing homosexuality. 29 men were acquitted, and 21 were jailed. Facing criticism from human rights organizations, Egyptian President Hosni Mubarak, ordered new trails for all 21 men. The new trials resulted in harsher sentences for those men (Planet Out News). This article allows homosexual people, within the nation-state of Egypt for example, to leave their country for another where they can gain asylum from being prosecuted for their lifestyle.
One can see, The Universal Declaration of Human Rights can work to protect the rights of homosexual people. Although the Declaration does not specifically mention this group, it does offer them assistance. Such assistance comes through the interpretation of the articles in an effort to prevent governments from harming homosexuals. Interpretations come through many different mediums. One of which is Non-governmental Organizations.
Non-Governmental Organizations
In the international community, non-governmental organizations play a key role. They present injustices, research injustices and offer solutions to governmental bodies. The UN looks to these organizations for assistance. In 1998, the United Nations Department of Public Affairs and several Non-Governmental Organizations meet at the fifty-first annual conference. At this conference, the participants, such as Amnesty International, The Human Rights Office of the Franklin and Eleanor Roosevelt Institute and the Human Rights Watch joined members of the United Nations to discuss the further implementation of the Universal Declaration of Human Rights. The assistance of non-governmental organizations is of vital importance. These organizations specialize in these areas of concern and gain valuable information. They collect statistical data, which governments can utilize. These actions reduce the costs, which governments might otherwise have to incur. The dynamics of the relationship between non-governmental organizations and governments is interesting. Non-Governmental organizations, in addition to presenting facts which help governments, also seek new policies. As such, the work of the two bodies is not always reciprocal. Many times the non-governmental organizations undertake more work and action than governmental bodies (NGO/307/PI/1080).
International Policy Action
Governmental bodies make the ultimate and final decisions, which are binding on their respective citizens. With the existence of Non-Governmental Organizations, comes pressure on governments to take action. Although slow to come, there is some progression in parts of the world toward equality.
In 1953 The Council of Europe designed a court as a result of The Convention For The Protection of Human Rights and Fundamental Freedoms. This Court, The European Court of Human Rights, is charged with hearing cases and enforcing dictates relative to those nation-states, who agreed to the contract, which resulted from the convention listed above (www.echr.coe.int).
In 1981, the European Court of Human Rights heard the case of Dungeon v. The United Kingdom. The case brought under scrutiny the United Kingdom’s laws banning homosexual activity in Northern Ireland. The United Kingdom had decriminalized male homosexual activity in England and Wales in 1967. However, the laws were left in tact in Northern Ireland. Mr. Dungeon was a gay activist who challenged the law. The Court vacated the laws of the United Kingdom, indicating they went against privacy rights and subsequently the European Convention on Human Rights. Mr. Dungeon brought the case before the court, citing The European Convention For The Protection of Human Rights and Fundamental Freedoms. While there was no specific reference to homosexual people in the documents of the convention, it was felt other areas could be interpreted to defend gay rights (Sanders 2).
His aspirations proved fruitful and the court ruled in his favor. Its ruling stemmed from an interpretation of the privacy clause erected at the convention. Likewise, it related to Article 12 of the Universal Declaration of Human Rights. As stated before, this article protects from arbitrary interference on one’s privacy. Again I assert, homosexuality is a private manner. Additionally, the United Kingdom’s actions were arbitrary. They were arbitrary as the laws only affected homosexual persons living in Northern Ireland. Thye law targeted a specific group of people.
The ruling of the European Court of Human Rights is binding across Europe. This case broke the ground for the world scene. IT showed how parts of the world were starting to deal with the issue and understanding the need for equality and protection from government. The decision of the European Court of Human Rights forced the United Nations Human Rights Committee to initiate work in this area (Sanders 2)..
In 1994, the United Nations Human Rights Committee heard and decided the case of Toonen v. Australia. This was one of the first cases brought before the United Nations dealing with homosexuality. The case possessed the same characteristics as the Dungeon case. The Committee stated above, concluded in their decision.
“discrimination on the basis of ‘sexual orientation’ was a form of discrimination on the basis of sex” (Sanders, 1).
Here again the issue of interpretation comes into play. The results of this decision could potentially have a far-reaching impact on anti-gay laws. Many documents, in law, offer protection based on sex. The United States is no exception. There are protections based on sex in many United States federal laws down through state and local municipal laws.
In a world where nation-states act in a legalistically consistent manner, following treaties they concede to, these decisions would not be necessary. There would not be a need for courts of this nature. Nation-states would vacate their anti-gay laws. The reality proves otherwise. In fact, very few nation-states have changed their positions to the extent these cases call for.
While laws worldwide have not changed to the extent as they have in the United Kingdom, they are changing gradually in some nation-states. In 1994, the European Parliament passed a resolution calling on member states to make certain changes. The resolution calls for equality in consent age to apply universally, decriminalization of sexual activities between persons of the same sex, equality in government run social programs, laws protecting against discrimination based on orientation and access to national funds for social organizations (Langley, 186-187).
There is no binding requirement for members of the European Union to pass laws of this nature, but the resolution indicates some manner of progress. Progress however, must be measured by actions.
United States Action
From here on this paper will look at different actions by the United States (US) federal government. At current, the United States has made less progress than the European Union. There has not been any call for ending national discrimination or equality in governmental run programs. The most prevalent area of actions is at the local level as opposed to the federal level.
Only twelve States and the District of Columbia have laws in which support to protect gay people. Only 22 states include sexual orientation as protected in their hate crime statues. Thirty states actively prohibit same sex marriage. Eighteen states continue to have sodomy laws. Only four states protect gay, lesbian, bisexual and transgender students. Sixty counties or cities offer domestic partner health benefits (Swan, Mazur 2). These however, are at the more local level. As of yet, has been no great federal action towards achieving full equality. However, there are currently several different issues in the area of gay rights being confronted.
Laws made at the federal level offer protection to the entire nation. While in some areas, the federal government may not intrude; they may require states to enact legislation in order for them to be eligible to receive federal funds. Since the purse is key to the operations of a state, more often than not, the states heed to the requests of the federal government so that they can obtain the funds. The result is a semi-national policy.
SMALL SCALE ACTION
On March 11, 2003, the House of Representatives began debate on a day of silence for homosexual/transgender students throughout the country. The idea behind this legislation is that many students have been victims of antagonization based solely on who they are regarding their sex or sexual orientation. This resolution is currently in the United States Senate.
ARMED FORCES
The United States military is another area of concern. The US, unlike the United Kingdom, is primitive in its interactions with the ideas of homosexuals and the military. Currently, the US has a “Don’t ask, Don’t tell” policy. The manner in which this policy operates is very straightforward. One does not ask if one is homosexual or not and one does not tell if they are homosexual or not.
The United Kingdom however, vacated its laws banning homosexuals from serving in the military in 1999 (Sanders 3). Unlike other decisions, which have in the past had their interpretations based on sex, not sexual orientation, this case, was interpreted on privacy and the ideals of democracy. According to the decision in Smith v. Lustig-Prean, . the “Hallmarks of a democratic society include pluralism, tolerance and broadmindnesses…The military concerns with operational effectiveness were based solely upon the negative attitudes of heterosexual personnel” (Sanders, 3). This decision was a first in this area.
POSSIBLE EFFECTS OF SMITH V. LUSTIG-PREAN
The decision presents two new areas for operation in the United States. One, the idea of democracy and what a democratic society should be and how it should act. Maybe more importantly, is the concept of privacy. This is an issue, which has in the past been twisted and perked in the United States. For example, The United States Supreme Court in Roe v. Wade (1973) based in part its decision on legalizing abortion under the privacy clause of the US Constitution.
Interpreting the clause in such a manner could potentially set a precedent. The results of which could cause this part to be consulted again for additional rights of the US citizenry. Idealistically this can be a model for future manners of consulting the constitution.
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