3_The Human Rights Principles and YYP by Ramil Andag

8/3/2019 3_The Human Rights Principles and YYP by Ramil Andag

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Human Rights 101:

Focus on Equalityand Non-

Discrimination


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A Brief History of Human Rights

HR is not a new concept.

But early concepts and practice of

human rights was selective anddiscriminatory

Human Rights gained more

prominence and recognition afterWorld War II, as a response to theatrocities


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Some Definitions:

Human rights are a set of guarantees

Are protective devices designed to shield or protect

individuals from random violence & neglect

Inherent entitlements, birthrights and freedomswhich every person should possess & enjoy byvirtue of having been born a human being;

Human rights are normative standards/guidepostsupon which states are to conduct themselves whenrelating with their citizens;


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2 major parties involved in the realization& fulfillment of human rights

Rights Holders - Citizens/ordinary

individuals and has the responsibility

to defend, exercise, claim their HRDuty Bearers - State & everyone who

form part of the State machinery has

the obligations to know, respect,

protect & fulfill the HR of its citizens


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Relationship Of Duty Bearers and Rights Holders

Rights Holders (RH) Duty Bearers (DB)

Know

Exercise Respect

Claim Protect

Defend Fulfill

HR Obligations


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Discrimination: Some Definitions

Direct discriminationOccurs when an individual is treated lessfavourably than another person in asimilar situation for a reason related to aprohibited ground

Indirect discrimination

Refers to laws, policies or practices whichappear neutral at face value, but have a

disproportionate impact on the exercise ofCovenant rights as distinguished byprohibited grounds of discrimination


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Focus on EQUALITY and NON-DISCRIMINATION

Non-Discrimination is provided in all majorinternational HR Instruments.

Common Article 2 of UDHR, International

Covenant on Civil and Political Rights (ICCPR) andInternational Covenant on Economic, Social andCultural Rights (ICESCR)

The States Parties to the present Covenant undertaketo guarantee that the rights enunciated in thepresent Covenant will be exercised withoutdiscrimination of any kind as to race, colour, sex,language, religion, political or other opinion, nationalor social origin, property, birth or other status.(Article 2)


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ESCR General Comments No. 14, 15, and 18

Note that Common Article 2 is hinged ondiscrimination based on sexual orientation

and not on gender-identity (Flaherty, 2008)

This presupposes that discrimination based

on gender identity is under other status


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In ESCR General Comment No 20 (Non-Discrimination, May 2009)Sexual Orientation and Gender Identity were elaborated:

Sexual orientation and gender identity Other status recognized

in article 2(2) includes sexual orientation.

States parties should ensure that a persons sexual orientationis not a barrier to realising Covenant rights, for example,in accessing survivors pension rights. In addition, genderidentity is recognized as among the prohibited grounds ofdiscrimination; for example, persons who are transgender,

transsexual or intersex often face serious human rightsviolations, such as harassment in schools or in the workplace.


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So?

We are not asking for special rights.

We are asking for equal treatment and non-discrimination

SOGI should never be used as basis for differentialtreatment, but to understand the attendant issues

We are all entitled to the same set of rights, SOGInotwithstanding.

The Philippines, as a State party to almost allinternational HR instruments, is duty-bound to respecttheir provisions.


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The Yogyakarta Principles


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The idea originated in 2005 and the

documented was finalized in November 2006

in Gadjah Mada University, Yogyakarta,

Indonesia.

Drafted by 25 experts from across 25countries and headed by former UN High

Commissioner for Human Rights, Mary

Robinsons.

A set of principles on the application ofinternational human rights law in relation tosexual orientation and gender identity.


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The Principles affirm binding international legalstandards with which all States must comply.

While key HR mechanisms of the UN have affirmedStates obligation to ensure effective protection of allpersons from discrimination based on sexualorientation or gender identity, the internationalresponse has been fragmented and inconsistent, thusthe need for a consistent understanding of the ofinternational human rights law and its application to

issues of sexual orientation and gender identity.


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Suggestive and recommendatory in nature,

towards positive changes to eliminate gender-

based discrimination

Anchored on equality and non-discrimination

principles espoused by existing international

human rights (ICCPR, ECESCR, etc.) law andexpressly linked these principles to gender

identity and sexual orientation


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Why?

Constitute a mapping of the experiences of

HR violations based on SOGI

Express articulation of IHR in relation toSOGI

Spell out the nature of obligations of States

for the effective implementation of theseHR obligations


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Principles 1 to 3 set out the principles of the

universality of human rights and their

application to all persons withoutdiscrimination, as well as the right of all

people to recognition before the law.

Principles 4 to 11 address fundamental rights

to life, freedom from violence and torture,privacy, access to justice and freedom from

arbitrary detention.


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Principles 12 to 18 set out the importance of non-discrimination in the enjoyment of economic, socialand cultural rights, including employment,accommodation, social security, education and health.

Principles 19 to 21 emphasize the importance of thefreedom to express oneself, ones identity and onessexuality, without State interference based on sexualorientation or gender identity, including the rights to

participate peaceably in public assemblies and eventsand otherwise associate in community with others.


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Principles 22 and 23 highlight the rights of

persons to seek asylum from persecution

based on sexual orientation or gender

identity.

Principles 24 to 26 address the rights of

persons to participate in family life, public

affairs and the cultural life of their

community, without discrimination based on

sexual orientation or gender identity.


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Principle 27 recognizes the right to defendand promote human rights without

discrimination based on sexual orientation

and gender identity, and the obligation of

States to ensure the protection of humanrights defenders working in these areas.

Principles 28 and 29 affirm the importance of

holding rights violators accountable, and

ensuring appropriate redress for those whoface rights violations.


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While the recommendations embodied inthe Yogyakarta Principles are directed tothe State as the main duty-bearer,additional recommendation were set out.

Their are 16 additional recommendationsto national human rights institutions,professional bodies, funders, NGOs, the

High Commissioner for Human Rights, UNagencies, treaty bodies, Special Procedures,and others.


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Value?

ECOSOC accreditation of NGOs working onSOGI issues

Guides in policy making and standardsdevelopment in some countries (Canada etc)

Referred to in speeches of UN officials (UNHC forHR)

UNGA Resolution on EJE includes SOGI

HR standards are not cast in stone,developmental. Yogya contributes to the HRstandard setting in relation to SOGI


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Sources: Philippine Human Rights Information Center (PhilRights). Human Rights Resource

Book: A Compilation of Key International and National Human Rights Instruments.March 2009.

Commission on Human Rights, Source Book on Human Rights, 2006

Philippine Human Rights Information Center (PhilRights), Training on Your Rights:

Modules on Monitoring Economic, Social and Cultural Rights . 2006. Philippine Human Rights Information Center (PhilRights), Integrating Peace and

Human Rights in Secondary Education, 2008.

Flaherty, Michael and John Fisher. Sexual Orientation, Gender Identity andInternational Human Rights Law: Contextualizing the Yogyakarta Principles. 2008

General Comment No. 20: Non-Discrimination in Economic, Social and CulturalRights. May 2009. Accessed fromhttp://www2.ohchr.org/english/bodies/cescr/comments.htm

Backgrounder: Overview of the Yogyakarta Principles.www.yogyakartaprinciples.org/principles_en

http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

3_The Human Rights Principles and YYP by Ramil Andag

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