Yogyakarta Principles

In a landmark judgment the Indian Supreme Court has held that the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a matter of national law.

Significance:

• The Yogyakarta Principles were developed by a coalition coordinated by the International Service for Human Rights and the International Commission of Jurists and were formally adopted by a panel of leading international law experts in November 2006.
• They provide authoritative guidance on the human rights of gay, lesbian, bisexual, transgender and intersex persons and the obligations of States to promote and protect these rights, ensure full equality and address discrimination.
• ‘ISHR welcomes the decision of the Supreme Court of India affirming the right to non-discrimination on the grounds of gender identity and recognising the relevance and applicability of international human rights norms, such as the Yogyakarta Principles,’
• ‘The right to non-discrimination on the grounds of sexual orientation and gender identity is both fundamental and universal and we call on all States to comply with the Yogyakarta Principles in developing and implementing laws, policies and practices in this regard,’.

Why are they needed?

• Human rights violations targeted toward persons because of their actual or perceived sexual orientation or gender identity constitute an entrenched global pattern of serious concern.
• They include extra-judicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities, and serious discrimination in relation to the enjoyment of other human rights.
• Key human rights mechanisms of the United Nations have affirmed States’ obligation to ensure effective protection of all persons from discrimination based on sexual orientation or gender identity.
• However, the international response has been fragmented and inconsistent, creating the need for a consistent understanding of the comprehensive regime of international human rights law and its application to issues of sexual orientation and gender identity. The Yogyakarta Principles do this.

Read GS Notes

How did the Principles come about?

• The Principles were developed and unanimously adopted by a distinguished group of human rights experts, from diverse regions and backgrounds, including judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs and others.
• The Rapporteur of the process, Professor Michael O’Flaherty, has made immense contributions to the drafting and revision of the Yogyakarta Principles.
• A key event in the development of the Principles was an international seminar of many of these legal experts that took place in Yogyakarta, Indonesia at Gadjah Mada University from 6 to 9 November 2006.
• That seminar clarified the nature, scope and implementation of States’ human rights obligations in relation to sexual orientation and gender identity under existing human rights treaties and law.

What do they cover?

• The Yogyakarta Principles address the broad range of human rights standards and their application to issues of sexual orientation and gender identity.
• These include extrajudicial executions, violence and torture, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly, employment, health, education, immigration and refugee issues, public participation, and a variety of other rights.

How can these rights be implemented?

• The Principles affirm the primary obligation of States to implement human rights. Each Principle is accompanied by detailed recommendations to States.
• The Principles also emphasise, however, that all actors have responsibilities to promote and protect human rights.
• Additional recommendations are therefore addressed to the UN human rights system, national human rights institutions, the media, non-governmental organisations, and others.

India:

• In the case of India, in particular, call on the Government to act consistently with the Yogyakarta Principles by repealing section 377 of the Indian Penal Code, which effectively criminalises same-sex relations.
• Also call on India to comply with the spirit and intent of this judgment by supporting efforts at the UN Human Rights Council to adopt a resolution condemning violence and discrimination on the grounds of sexual orientation and gender identity.’

Yogyakarta Principles and the Section 377

• India is one of the 72 countries worldwide that criminalise homosexuality now. Forty five of these countries have outlawed sexual relationships between women.
• According to an annual report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), there are eight countries in which homosexuality can result in a death penalty, and dozens more in which homosexual acts can result in a prison sentence.
• Against this backdrop, the International Commission of Jurists and the International Services for the Human Rights, on behalf of a coalition of Human Rights Organisations, have developed the Yogyakarta principles.
• Yogyakarta principles are a set of international legal principles on the application of the international law to human rights violations based on sexual orientation and gender identity to bring greater clarity and coherence in state’s human rights obligations.