Emerging Voices: An “Ottawa Process” for an LGBTQ Treaty?

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law]

In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”.

A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition.

At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption. This take-it-or-leave-it approach takes its name from the method by which the Canada-led Anti-Personnel Landmine Convention was negotiated, drafted, promoted, and widely endorsed, all in a period of only 424 days in 1996-1997. Through fast-track diplomacy, committed governments, NGOs, and international organizations such as the International Committee of the Red Cross, offered an open invitation to all states to join in the initiative aimed at achieving a global ban on anti-personnel landmines by the set deadline. Such tireless efforts proved very fruitful, with a surprisingly large number of endorsements when the treaty first opened for signature, and widespread acceptance of the treaty to date.

The Ottawa Process is an attractive method for the realization of an LGBTQ treaty. It involves efforts at coalition building, which would naturally promote the cause for LGBTQ rights at international law. It requires steadfast commitments by states to champion such a process. There is a natural cadre of champion states—for example, those Latin American and European states which put forward statements in the General Assembly in 2008, as well as those that pushed for the Human Rights Council to address the topic in 2011. Such a process also relies heavily upon support from non-state actors, and there are certainly a number of active NGOs already working on LGBTQ rights. Under this method, a treaty initiative would not sit idle at the mercy of opposing states, and the treaty language is likely to be stronger, thereby enjoying legitimacy both at the diplomatic and at the grassroots levels.

There certainly exist negative aspects to this approach, however. The most apparent concern is the expected loss of universality. As a core non-discrimination treaty, a universal LGBTQ regime would be preferable, not only in endorsement but also in status. The UN treaty regimes supply this sense of universality, yet an Ottawa Process would surely entail an LGBTQ treaty conducted outside of UN auspices. Further, success under an Ottawa Process is by no means guaranteed. Considering the contentiousness of the LGBTQ rights issue, this method still would likely produce low ratification numbers, at least at first. A treaty regime created in this fashion would very much exist as its own distinct regime in its infancy. Moreover, any Ottawa Process is entirely dependent upon state willingness to support the initiative over the long haul; when LGBTQ rights have been at issue in the past, such faith in states has at times proven unwarranted. Indeed, those committed to achieving an LGBTQ treaty in this fashion must be prepared to weather the storm of resistance at the same time.

Still, an Ottawa Process remains the most suitable method for achieving an LGBTQ treaty presently and in the forseeable future. It involves the use of multilateral diplomacy, but it provides an alternative to the political gridlock experienced over LGBTQ rights in the UN and even other more regional forums. As well, it is a malleable process capable of being amended depending on the actors involved and the various roadblocks encountered. Just as was done with the Anti-Personnel Landmine Convention, once a comprehensive LGBTQ treaty is established by this approach, it could still be registered with the UN Secretariat for long-term custodianship in order to ensure its legitimacy and its credibility as an international, normative instrument. Until some entity, however, is willing to take action to initiate the advent of an LGBTQ treaty, it is impossible to test the boundaries of international law as regards the rights of this group.