1

CLASS 2 (Jan. 22) OUTLINE: THE TIDE HAS TURNED: HISTORY OF LGBT
RIGHTS IN THE INTERNATIONAL ARENA

[1:00]

Recap of last class: Last week, we identified some rights relevant to the LGBT community and
considered how these rights were being violated. We talked about who is committing
violationsgovernment officials (especially police); private citizens, including family; media;
religious leaders. We also thought about why LGBT people are targetedtradition & culture;
religion; easy target/easy way to attack human rights generally.

Tedcomplexity of SOGI. The role of class/economics in shaping identity. What we think is
natural can actually be influenced by learned concepts such as gender roles. The different
categories discussed in Bangladeshkothi, panthi, hijra, gay. How development work/funding
can affect these categories.

Intro: Today we are going to discuss the evolution of LGBT rights in recent history, and assess
where we are at. Well also talk in depth about cultural relativism.

Class:
1. [1:10] What relevance does Teds discussion have for use as lawyers thinking about
LGBT rights?
a. We must be able to speak the local language of sexuality and gender.
b. Siddiqi articlegay men (from BoB) offended at being called MSM because it
reduces his identity (and emotions, love, etc.) to sex.
c. defining terms certain ways can leave out a lot of people (panthis not gay)
d. be aware of how our project will affect other peopleNGOs in Siddiqis article
affected how people identified themselves.
2. [1:15] Lets start w/ the Aaron Fellmeth piece (State Regulation of Sexuality). It
provides a good overview of the history of LGBT rights in the world. Can someone
summarize the beginning of the LGBT rights movement in recent times? What got it
started?
a. Until 1982, decriminalization trickled along
b. Parliamentary Assembly of the Council of Europe's Resolution 924
i. urged member states to decriminalize homosexual intercourse and to ensure
equality of treatment between heterosexuals and homosexuals.
c. Dudgeon v. United Kingdom (ECtHR 1982) (Northern Ireland's buggery and
gross indecency laws violate Article 8 right to privacy; Morality not sufficient
justification)
d. Toonen v. Australia (HR Comm. 1994) (lets look at this in depth)
i. Who is Mr. Toonen, and what is his complaint?
1. Australian citizen born in 1964; Gay Law Reform Group
2. Laws: Tasmanian Criminal Code 122 ("unnatural sexual intercourse"
or "intercourse against nature") & 123 ("indecent practice between
male persons). Criminalizes all forms of sexual contact between
consenting adult homosexual men in private
2

3. Effect on him: not permitted him to expose openly his sexuality and to
publicize his views on law reformcreated the conditions for
discrimination in employment, constant stigmatization, vilification,
threats of physical violence; Group was refused permission to put up a
stand in a public square in the city of Hobart, and the author claims
that he, as a leading protester against the ban, was subjected to police
intimidation.
4. Hostile environment: "figures of authority" in Tasmaniamunicipal
councillors (such as "representatives of the gay community are no
better than Saddam Hussein" and "the act of homosexuality is
unacceptable in any society, let alone a civilized society"), of the
church and of members of the general public ("gays want to lower
society to their level" and "You are 15 times more likely to be
murdered by a homosexual than a heterosexual "); public meetings (all
Tasmanian homosexuals should be rounded up and "dumped" on an
uninhabited island, or be subjected to compulsory sterilization)
5. Non-enforcement: police not charged anyone for several years. BUT:
Director of Public Prosecutions announced that proceedings would be
if there was sufficient evidence of the commission of a crime
6. He is at risk: because of his long-term relationship with another man,
his active lobbying of Tasmanian politicians and the reports about his
activities in the local media, and because of his activities as a gay
rights activist and gay HIV/AIDS worker, his private life and his
liberty are threatened. After filing his complaint, he lost his
employment partly as a result of his communication before the
Committee.
ii. What body is considering this complaint? Human Rights Committee. What is
it? Created by ICCPR art. 28. States must submit reports to it on compliance
w/ ICCPR (art. 40), and Committee can make general comments (art. 40(4)).
Inter-state complaints if states give consent to this (art. 41).
iii. How did Mr. Toonens complaint get to HR Committee? Optional Protocol
art. 1 (recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
Covenant)
iv. What must someone do before filing complaint w/ HR Committee? Exhaust
domestic remedies (OP art. 2). Do you always have to? Not where remedies
would be unreasonably prolonged (OP 5(2)(b)).
v. Did he exhaust domestic remedies? He has no remedies.
1. LegislativeUpper and Lower Houses of the Tasmanian Parliament
have been deeply divided over the decriminalization of homosexual
activities
2. administrative remedies not availabledepend on the support of a
majority of members of both Houses of Parliament
3. no judicial remediesICCPR has not been incorporated into
Australian law
3

vi. What are Mr. Toonens legal claims?
1. Right against arbitrary/unlawful interference w/ privacy (ICCPR 17)
a. enable the police to enter a household on the mere suspicion
that two consenting adult homosexual men may be committing
a criminal offence
2. Right against discrimination (ICCPR 2(1) and 26)
a. Outlaw all gay sex in private, but not for women or
heterosexual couples
vii. What is the governments response?
1. Agrees that the laws violate the ICCPR (Federal Government has
enacted protections against discrimination on the basis of sexual
orientation). But presents the position of Tasmania state government,
which tries to justify the lawsMoral and public health (HIV/AIDS);
Laws were enacted by democratic process, they cannot be an unlawful
interference with privacy.
2. [several of you wondered why the Australian government agreed
with Mr. Toonen and not the Tasmanian government. It seems
that the Tasmanian government was much more conservative than
the federal government (and the rest of the Australia) but couldnt
force Tasmania to repeal the laws. After the HR Committee issued
its decision, Tasmania still refused to repeal the laws. The federal
government then enacted a federal law legalizing sexual activity
between consenting adults throughout Australia and prohibiting
laws that arbitrarily interfere with sexual conduct in private. A
court challenge was then brought against Tasmanias law,
claiming it conflicted the federal law. Tasmania then repealed the
law, rather than waiting for a court verdict.]
viii. Human Rights Committee ruling
1. ICCPR 17No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation
2. undisputed that adult consensual sexual activity in private is covered
by the concept of "privacy" and that Mr. Toonen is actually and
currently affected by the continued existence of the Tasmanian law
(laws interfere)
3. non-enforcement: does not amount to a guarantee that no actions will
be brought against homosexuals in the future, particularly in the light
of undisputed statements of the Director of Public Prosecutions and
Tasmanian Parliament members
4. interference is provided for by law. Is it arbitrary?
5. meaning of arbitraryeven interference provided for by the law
should be in accordance with the provisions, aims and objectives of the
Covenant and should be, in any event, reasonable in the
circumstances". The Committee interprets the requirement of
reasonableness to imply that any interference with privacy must be
4

proportional to the end sought and be necessary in the circumstances
of any given case
6. Public health: no
a. Criminalization of homosexual activity not reasonable or
proportionate means to prevent HIV/AIDS
b. Federal government says sodomy laws drives underground
many of the people at the risk of infection
c. no link has been shown between the continued criminalization
of homosexual activity and the effective control of the spread
of the HIV/AIDS virus
7. Morals: no
a. Committee cannot accept either that for the purposes of article
17 of the Covenant, moral issues are exclusively a matter of
domestic concern, as this would open the door to withdrawing
from the Committee's scrutiny a potentially large number of
statutes interfering with privacy
b. Laws not necessary to protect morals in Tasmaniaall other
states have repealed such laws; even in Tasmania, there is no
consensus as to whether sections 122 and 123 should not also
be repealed; laws not currently enforced
8. Laws do not meet "reasonableness" test, and arbitrarily interfere with
Mr. Toonen's right to privacy = violation of ICCPR 17(1) in
conjunction with 2(1)
9. Is discrimination based on sexual orientation prohibited by ICCPR?
Yesreference to "sex" in arts. 2 and 26 includes sexual orientation
(not other status)
10. Remedy? Repeal the laws

3. [1:40] In Toonen, the Human Rights Committee held that the sodomy law violated the
ICCPR. Does this mean that, from 1994 onwards, sodomy laws have been illegal under
international law because they are discriminatory and violate the right to privacy?
a. What are the sources of intl law: (Statute of ICJ art. 38(1))
i. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
ii. international custom, as evidence of a general practice accepted as law [state
practice + opinio juris]
iii. the general principles of law recognized by civilized nations
iv. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
b. Do the Human Rights Committees views fall under any of these?
c. HR Committee Views do not automatically constitute international law

4. [1:50] The readings mention a number of different court cases, resolutions, decisions,
and publications about LGBT rights by various bodies/actors in the local, regional and
international arena. Who are these actors?
5

a. United Nations
i. General Assembly (Members states and Non-state observers: Holy See, State
of Palestine, & intl orgs (IRC, EU, AU)); Resolutionsnon-binding in intl
law
ii. Treaty monitoring bodiesHuman Rights Committee; Committee on
Economic, Social and Cultural Rights; Committee on the Elimination of
Discrimination Against Women; Committee on the Rights of the Child)
monitor implementation of treaty; state to state complaints (never been used),
if state consents, can also sometimes hear complaints from individuals/groups
iii. Charter bodiesHuman Rights Council
1. made of 47 Member States, which are elected by the majority of
members of the General Assembly
2. Resolutions/statements
3. UPR (review of human rights situation in states; NGO shadow reports)
4. complaint procedure (consistent patterns of gross and reliably attested
violations of all human rights and all fundamental freedoms occurring
in any part of the world and under any circumstances)
iv. Special Procedures
1. Working Group on Arbitrary Detention, Special Rapporteur on
Violence against Women
2. receive individual complaints and enter dialogue with states, country
visits and file reports, offers views/interpretations of treaties
v. OHCHR
1. created by GA in 1993. part of the Secretariat structure, reporting to
the UN Secretary-General. The OHCHR works closely with
governments and civil society partners around the world to ensure that
international standards of human rights are implemented on the
ground, and to promote human rights education and international law
2. Publications, statements, initiatives (free and equal)
b. Regional bodies
i. Parliamentary Assembly of the Council of Europe
1. Council of Europe has 47 countries; all signatories to European
Convention on HR; ECTHR
2. it can pass resolutions/recommendations1982, it recommended
member states decriminalize homosexuality (State Regulation of
Sexuality)
3. admission criteria into COEcant criminalize homosexual
intercourse
ii. European Parliament (European Union)
1. In 1984, the European Parliament first expressly condemned
workplace discrimination based on sexual orientation.
2. Recurrently since that time, the EU Parliament has called for
nondiscrimination legislation in member states encompassing equal
ages of consent for heterosexual and homosexual intercourse; equal
social benefits, inheritance rights, and housing rights; and
6

antidiscrimination legislation generally, including access to marriage
or an equivalent for same-sex couples
3. 2001requested study ways to decrease discrimination based on
sexual orientation in the EU
c. Regional courts
i. European Court of Human Rights (Council of Europe)
ii. Inter-American Commission on Human Rights
iii. European Court of Justice (European Union)
d. States
e. Sub-divisions of states

5. [2:05] The Tide has Turned for LGBT rightsthis is a quote from a paper on LGBT
rights presented by Douglas Sanders in 2002 at a conference organized by Amnesty
International. Based on the readings, is this true? Why or why not?
a. The number of states that have changed laws to either decriminalize same sex
activity, make laws non-discriminatory, or enact positive protections against
discrimination strengthens case for customary law protections (State Regulation of
Sexuality in Intl Human Rights Law and Theory p.12)
b. Attention at UN
i. Human Rights Council Res. 17/19 (June 17, 2011)first United Nations
resolution on sexual orientation and gender identity
1. What did it say?
2. Who voted for/against it? What do you notice?
a. 23 voted in favor, 19 againstCountries that voted against are
some of the worst to be LGBT in. sodomy laws: Angola,
Bangladesh (life), Cameroon, Ghana, Malaysia (20 years,
whipping), Maldives, Mauritania (death), Nigeria (death),
Qatar, Pakistan, Saudi Arabia (death), Senegal, Uganda (life)
ii. UNHCHRDiscriminatory Laws and Practices and Acts of Violence Against
Individuals Based on Their Sexual Orientation and Gender Identity
1. the first official United Nations report on LGBT rights
2. Why is this important?
iii. OHCHRFree and Equal: A New Global Public Education Campaign
Against Homophobia and Transphobia, U.N. OFFICE OF THE HIGH COMMR
FOR HUMAN RIGHTS (July 26, 2013)
1. Why is this important? This isnt law or anything close to law.
2. [Tessaflawed. Has very limited audience]
iv. Treaty monitoring bodies & Special & Special Procecures (Working Group on
Arbitrary Detention): discrimination against sexual minorities violate treaties
(State Regulation of Sexuality p.12)
1. What role do their opinions have in intl law? If opinions clarify
treaty, might constitute binding intl lawinfer state consent from
state consent to treaty. Otherwise, affects state practice; writing by
learned experts.
7

v. U.N. General Assemblynever expressed a definite position on issue of
discrimination based on SOGI, but 66 countries supported Letter dated Dec.
18. 2008 to G.A.
c. Regional bodies & court
i. European Court of Human Rights:
ii. Inter-American Commission on HR
iii. Parliamentary Assembly of the Council of Europe:
iv. European Parliament (EU)
d. Governmental sub-divisions
i. twenty states plus D.C., as well as numerous municipalities, have laws to
prohibit discrimination based on SO (and sometimes GI) in employment,
housing and real estate transactions, licensing, financial credit, business and
commercial transactions generally, and public accommodations and services
(covering more than a quarter of the U.S. population)no federal law, but
ENDA passed Senate (Regulation of Sexuality in Intl Human Rights Law and
Theory) p.12) [also same sex marriage]
ii. although Germany lacks general antidiscrimination laws, in 1992,
Brandenburg adopted a new constitution prohibiting discrimination based on
sexual orientation, and a few [others] eventually followed the example (State
Regulation of Sexuality p.12)
e. Yogyakarta Principles
i. Who wrote them? (mostly human rights lawyers)
1. [GuillermoThe Yogyakarta Principles were written by the
International Commission of Jurists and the International Service
for Human Rights. How does that affect their applicability? Can
states simply reject them by saying that they were not represented
in the drafting process and that they dont reflect established
international law? Is that a viable defense?]
ii. What are they?
1. The experts agree that the Yogyakarta Principles reflect the existing
state of international human rights law in relation to issues of sexual
orientation and gender identity. They also recognise that States may
incur additional obligations as human rights law continues to evolve
2. [Guillermowhy didnt they include same sex marriage? Would
including it have turned the principles into an aspirational
document rather that a reflection of current international law?]
iii. Do we need these Principles? Human rights are universal, so why do we
need to specifically spell out international law applied to the LGBT
community?
1. [Dana: Given that it these instruments do seem broad enough to
encompass sexual and gender orientation, does having a separate
(non-binding) tool that specifically addresses sexual orientation
undermine the UDHR/ICCPR/ICESCR?]
2. [Jennifer: Nigerias anti-gay law, even though it ratified ICCPR
w/o reservations. If countries are emboldened to act against the
treaties to which they have acceded without reservation, what is
8

the utility of the Yogyakarta Principles, which is not a legally
binding instrument, but rather an interpretive aid? Yogyakarta
Principles merely preach to an already faithful choir]
3. [Taka: is there a movement towards having a human rights treaty
protecting LGBT's? (should there be?)]
4. human rights violations targeted toward persons because of their
actual or perceived sexual orientation or gender identity constitute a
global and entrenched pattern of serious concern
5. Many States and societies impose gender and sexual orientation norms
on individuals through custom, law and violence and seek to control
how they experience personal relationships and how they identify
themselves. The policing of sexuality remains a major force behind
continuing gender-based violence and gender inequality.
6. the international response to human rights violations based on sexual
orientation and gender identity has been fragmented and inconsistent
7. CEDAW
iv. What is one recommendation that appears throughout the Principles that
does not involve creating or repealing law? Training and awareness
raising programs to get at the root of homophobia. [Tessalaws on the
books does little to affect the social realities on the ground. Need to
humanize LGBT community in eyes of general public, the news media,
and the government. Show violence perpetrated against LGBT.]
v. Do they really represent the current state of intl law? What would
Pakistan or Syria say about this?
f. Deborah Brown (A Showdown on LGBT rights in Geneva)
i. Walk during Human Rights Council discussion (UNs first-ever formal
discussion on LGBT rights)
ii. Who opposed, and why?
iii. Pakistan/Organization of Islamic Cooperation
1. Religion
2. Slippery slopeLGBT rights will lead to pedophilia
3. so-called concept of sexual orientation = homosexuality is a choice
= not natural
iv. Senegal on behalf of most members of the African Groupsocial and
cultural norms
g. Competing statements at the U.N.G.A.Dec. 2008
i. Argentina
1. What did the statement say?
2. [Estelleis it mistake to single out sexual minorities and giving the
Note Verbale states something to push back against? Better to just
reaffirm that all right apply to everyone?]
ii. Syria (59 states)
1. attempt to introduce to the United Nations some notions that have no
legal foundation in any international human rights instrument
a. Response? LGBT people hold all human rights, just like
everyone else.
9

2. attempt to focus on certain persons on the grounds of their sexual
interests and behaviours, while ignoring that intolerance and
discrimination regrettably exist in various parts of the world, be it on
the basis of colour, race, gender or religion
a. Response? We focus on LGBT community b/c they are
targeted/an easy target. Attacks on them often lead to
attacks on human rights advocates more generally.
3. matters which fall essentially within the domestic jurisdiction of
States/sovereignty/non-intervention
a. Is this a valid argument?
4. Lead to paedophilia
5. attribute particular sexual interests or behaviours to genetic factors, a
matter that has been scientifically rebuffed repeatedly [not natural]
6. We strongly deplore all forms of stereotyping, exclusion,
stigmatization, prejudice, intolerance, discrimination and violence
directed against peoples, communities and individuals on any grounds
whatsoever, wherever they occur.
a. [EstelleIf it were not so horrific, it would be almost
laughable the way in which the Note Verbale talks about
the importance of non-discrimination, the dangers of
stigmatization and the need to protect vulnerable
populations, while at the same time comparing
homosexuality to pedophilia and trying to squash an
attempt to protect those with sexual orientations or gender
identities that differ from the status quo]
7. reaffirm Article 29 of the Universal Declaration of Human Rights and
the right of Member States to enact laws that meet just requirements
of morality, public order and the general welfare in a democratic
society
a. HR Comm. rejected morality defense in Toonen
8. Creating new rights; undermine not only the intent of the drafters and
signatories
a. Response? Not creating new rights.
h. Devils advocate: The Tide has not turned. Having good laws on the books does
not mean people are treated better (Tessa). It is easy to say the tide has turned
when we live in NYC and gay people can get married. But in many parts of the
world, LGBT people are just struggling to survive (Alexs article). Even in the
US, class makes a huge different. Affluent LGBT people worry about same sex
marriage, etc. Poor LGBT people worry about violence, even getting killed.
i. Where are we now? What is the level of acceptance of different LGBT rights?
(from most accepted to least)
i. Enforce existing criminal law (investigate attacks, bring criminals to trials,
etc.) [Guillermoshould we focus on general rule of law? or focus
specifically on LGBT?]
10

ii. decriminalization of same-sex activity (Aaron Fellmeth says this is as
accepted as any other human rights doctrine, mostly resisted by states that
resist HR generally)
iii. repealing of other discriminatory laws, such as unequal age of consent
iv. protective anti-discrimination legislation (housing, employment, etc.) (trend,
but many states resist) [Taka: who gets to determine what groups are
protected under other status in intl treaties?]
v. family law: legislation recognizing the same-sex partnership and parenting
(most controversial)

[2:302:40 BREAK]

Office of the High Commr for Human Rights, Highlights from the First-Ever
Ministerial Meeting on LGBT Rights (Sept. 26, 2013),
https://www.unfe.org/en/actions/ministerial-meeting. [3:11]

U.N. Sec. Gen. Ban Ki-Moon, Statement to Human Rights Council,
https://www.unfe.org/en/actions/ban-ki-moon (March 7, 2012). [3:17] [this is the video
statement in the HR Council panel when countries walked out]

11

6. Cultural Relativism
a. [2:45] [EstelleBorn Free and Equal could almost read as obligations about
human rights in general (much like the list of rights we made in the first class).
Why is it so hard for states to acknowledge that they must protect the rights of
LGBT people?]
b. Erica: article about Russia and the Olympics. What did Putin say?
i. The signal from Sochi is that the West has no right to impose its alien
conceptions of human rights on Russian Christians and Muslims, and that
athletes and spectators should respect Russias laws and customs
c. [2:50] What are Mutuas criticisms of the human rights movements?
i. Created by West in response to western problems
ii. West dominated creation of UN/HR
iii. Eurocentric values (political democracy)
1. [Danahuman rights treaties seem to envision a single kind of
world citizen: one who has a high degree of personal autonomy
and access to a sufficient level of a wide variety of resources]
iv. continuation of colonialism
v. Savages-victims-saviors (race, west as savior)
vi. Used primarily against the third world (and focused on civil & political rights)
vii. HR not universal (streets of Nairobi, deserts of Iraq)
1. Perceived as alien in non-western societies
d. [3:00] What are Kimberly Younce Schooleys (Cultural Sovereignty, I slam, and
Human RightsToward a Communitarian Revision) criticisms?
i. Different understanding of rights and law (law is divine; breaking it = sin)
ii. Communal duties/rights
1. [AlexIs there a direct correlation between cultures who
emphasize society over the individual and a lack of homosexual
rights?]
2. [Jennifer Is it possible to reconcile conflicting individual and
group rights, particularly in regions where individual sacrifice for
the welfare of the group is considered honorable and righteous?]
iii. no need for rightsdirective from Allah to obey government, no need to
guarantee rights against the government
iv. the view of Islam as patriarchal or oppressive is western view
e. [3:10] What are Donnellys and Tharoors responses?
i. West dominated creation of UN/HR
1. developing countries active in UDHR and HR treaties
2. [Taka The origins of the movement should not matter when it
seeks to prevent mass atrocities and persecution.]
ii. HR are just Eurocentric values
1. [Jennifer There are certain rights that transcend cultural
differences e.g., the right to be free from torture, and the right to
be free from slavery.]
iii. Colonialism
1. [JenniferINGOs certainly do not deserve a place in the lineup of
the colonial administrator, the Bible-wielding Christian
12

missionary, the merchant of free enterprise, the exporter of
political democracy, and now the human rights zealot.] [Dr.
Adamsinstead of bible, civilizing white person now carrying
ICCPR]
iv. Savages-Victims-Saviors
1. [EstelleThe author of the SVS article describes the typical
human rights investigation process as conducted by white,
Western, middle-class, citizens located in capital of Western state
who study and go to a third world country for a fact-finding trip,
come back and write a report detailing the horrors of the savage
nation investigated. This is an almost exact description of the
Crowley Program]
2. [DanaI would also be willing to hazard a guess that most human
rights attorneys come from (relatively) privileged backgrounds]
v. Used against third world
1. [GuillermoHuman Rights Watch, where I worked before law
school, is attempting to transition away from having almost
exclusively western donors and advocacy targets. As Brazil, India,
China and other former third world countries begin to play a
larger role in international decision-making will the SVS model
change?]
vi. Dont interfere w/ my culture
1. Culture/tradition is not a free passslavery & racial, ethnic, and
religious discrimination were traditions too (Cultural relativism and
Universal Human Rights)
2. [Danathe cultural relativists seem to ignore the fact that cultural
relativism can be used to allow the dominant forces in a culture to
speak for the rest of that cultures citizens. It can also be used to
allow outdated cultural norms to persist]
3. Who decides what constitutes Sharia/culture?
Objections that are voiced to specific (allegedly Western) rights very
frequently involve the rights of women, and are usually vociferously
argued by men. Even conceding, for argument's sake, that child
marriage, widow inheritance, female circumcision, and the like are not
found reprehensible by many societies, how do the victims of these
practices feel about them? (Are Human Rights Universal? p.4)
4. Culture changes: Am I, as an Indian, obliged to defend, in the name of
my culture, the practice of suttee, which was banned 160 years ago, of
obliging widows to immolate themselves on their husbands' funeral
pyres? slavery was acceptable across the world for at least 2,000 years
(Are Human Rights Universal? p.4)
vii. No need for rights b/c Islam comes from God
1. Look at track records of many Islamic governments.
2. [Danahard not to think of the fruit vendor in Tunisia that led to
an uprising across the region that has not yet finished]
viii. the interpretation of Islam as repressive of women is Western view
13

1. this implies anyone who disagrees with the current state of affairs is
unIslamic or Western (Saudi Women Defy Driving Ban)
2. [JenniferClearly, equality between men and women is a myth
under Sharia law. Does that not justify a vast intrusion into its
cultural sovereignty?]
ix. the traditional culture no longer (or rarely) exists
1. You cannot impose the model of a modern nation-state cutting
across tribal boundaries and conventions on your country, appoint a
president and an ambassador to the United Nations, and then argue that
tribal traditions should be applied to judge the human rights conduct of
the resulting modern state. (Tharoor p.3)
x. Hypocritical use of culture
1. Authoritarian regimes who appeal to their own cultural traditions are
cheerfully willing to crush culture domestically when it suits them to
do so. (Tharoor p.3)
2. Arguments of cultural relativism regularly involve urban elites
eloquently praising the glories of village lifea life that they or their
parents or grandparents struggled hard to escape, and a life to which
they have not the slightest intention of returning. (Donnelly p.412)
xi. Making up traditional culture
1. In Malawi, President Hastings Kamuzu Banda utilizes "traditional
courts" in order to deal with political opponents outside of the regular
legal system. no defense attorney was allowed, and the only possible
appeal was to Banda personally.
2. In Zaire, President Mobutu has created the practice of salongo, a form
of communal labor with a supposedly traditional basis. In fact, it has
little or no connection with indigenous traditional practices; rather, it is
a revival of the colonial practice of corvee labor
3. Macias Nguema of Equatorial Guinea, probably the most vicious ruler
independent black Africa has seen, called himself "Grand Master of
Popular Education, Science and Traditional Culture," a title that would
be comical if it weren't so tragic. (Donnelly p.413)
xii. Traditional societies had real protections for individuals, which gives some
weight to a claim that they dont need the intl HR system; but countries that
invoke tradition/culture lack these traditional protections
1. Traditional African cultures, for example, usually were strongly
constitutional, with major customary limits on rulers; as a Basotho
maxim says, "A chief is a chief by the people. (Donnelly 413414)
xiii. What about right to development? People in third world countries need food
and shelter, not human rights.
1. [EstelleAs Westerners, is an emphasis on LGBT rights over
basic food and sanitation a projection of our values?
Without food, medicine, water or shelter, people cannot physically
survive]
2. But human rights not opposed to development: Nobel Prizewinning
economist Amartya Sen has pointed out in a number of interesting
14

pieces that there is now a generally agreed-upon list of policies that are
helpful to economic developmentopenness to competition, the use
of international markets, a high level of literacy and school education,
successful land reforms, and public provision of incentives for
investment, export and industrializationnone of which requires
authoritarianism; none is incompatible with human rights (Tharoor
p.5)
3. what can one find that someone in a developing country can easily do
without? Not the right to life, one trusts. Freedom from torture? The
right not to be enslaved, not to be physically assaulted, not to be
arbitrarily arrested, imprisoned, executed? No one actually advocates
in so many words the abridgement of any of these rights (Are Human
Rights Universal p.5)
f. [3:35] Should we ever allow culture to excuse obligations under intl human
rights?
g. TAKEWAY: When someone invokes culture/tradition to argue against human
rights, think about who is speaking, and why they are appealing to culture.

[3:45] Hilary Clinton, Remarks in Recognition of International Human Rights Day,
(Dec. 6, 2011), http://www.youtube.com/watch?v=WIqynW5EbIQ (transcript available
at http://www.state.gov/secretary/rm/2011/12/178368.htm). [12:1914:45]

RECAP:
We saw how the modern LGBT rights movement gained momentum in the 1980s in
EuropeEuropean Court of Human Rights decision in Dudgeon v. United Kingdom striking
down sodomy law (moral disapproval not sufficient justification), and the Parliamentary
Assembly of the Council of Europe's recommendations to decriminalize homosexual
intercourse equality of treatment . We looked at the HR Committees decision in Toonen v.
Australia (1994) finding that Tasmanias sodomy law violated the right to privacy in the
ICCPR. There has been a trend of states changing their laws to decriminalize sexual activity
between same sex partners, to repeal differential age of consent laws, enacting protections
against discrimination for the LGBT community, and finally recognizing same sex unions.
However, there is still much disagreement, and international law is still developing. Finally,
we talked about how we should not always accept claims of culture at face value when
claimed to be in opposition to human rights.

Next week we will discuss LGBT rights in specific countries as case studies.