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

by Scott Robinson

[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.

http://opiniojuris.org/2013/07/11/emerging-voices-an-ottawa-process-for-an-lgbtq-treaty/

3 Responses

  1. Hi Scott.  Another potential drawback for a non-UN LGBTQ treaty is that its lack of universality would give further credence to claims in many states that LGBTQ rights are a culturally-specific or Western concept.  That seems to me a good reason instead to use the tools we have: To push UN human rights treaty bodies to adopt strongly-worded general recommendations on LGBTQ rights, and to litigate the rights of sexual minorities in regional tribunals.  Or would it be feasible to pursue both strategies at once?

  2. Hi Chelsea, thanks for your comment. That is certainly a concern noted as part of my unease with regard to the expected loss of universality as a result of an Ottawa Process. Indeed, we have heard such claims by states in the international arena before (such as when LGBTQ rights were first raised in the General Assembly) and we no doubt continue to hear them.
    However, I respectfully disagree that pursuing an Ottawa Process would ipso facto lend credence to claims that LGBTQ rights are culturally-specific or are a “Western” concept. As mentioned, a UN-consensus route for a treaty is hindered (at the moment)—this is a political reality, but it is a result of many contributing factors. Proceeding by way of an Ottawa Process is not so much a surrender to such claims as it is a diplomatic alternative to this gridlock; it is a way in which a necessary treaty can still be achieved at this point in time in order for it to perhaps be relied upon as a solid foundation in which to ground a further realization of LGBTQ rights in the future.
    I would suspect most advocates for LGBTQ rights or even human rights in general have a difficult time tolerating opposing claims alleging that LGBTQ rights are merely “Western”, that they lack a basis in international law due to cultural-specificity, etc. I certainly do not view any such claims as a reason to shy away from the notion of LGBTQ rights and their advancement in international law by way of a treaty forged through an Ottawa Process. In addition to such claims being overbroad and lacking supporting evidence, they are difficult to accept in today’s day and age when, arguably, non-discrimination in general—regardless of grounds—is jus cogens.
    Personally, I see a group of persons that is undoubtedly marginalized as a result of a certain characteristic(s), and from an international human rights law point of view, more can and should be done to offer protection. LGBTQ rights are human rights, and on this basis alone, if no more, an explicit LGBTQ treaty can and should be pursued sooner rather than later. Codification, after all, is considered “the more precise formulation and systematization of rules of international law”.
    Do not get me wrong—in a sense I agree with your proposal of perhaps pursuing both strategies at once: I am all for the UN human rights treaty bodies continuing their work on LGBTQ rights within their respective mandates, and I encourage more General Comments and Communications on the topic. But at the end of the day, these remain non-binding and fail to provide a concentrated, hard-law front for the promotion of LGBTQ rights in international law; a state outright ignoring such recommendations is commonplace. Further, I am for the continued promotion of LGBTQ rights in regional tribunals, whenever and whatever the case may be. Yet this too fails to provide a unified effort in promoting LGBTQ rights. The status quo with regard to LGBTQ rights as indicated in black-letter, international law is unacceptable (and proving futile). LGBTQ persons deserve more. 

  3. Thanks Scott, you make excellent points.  I suppose another reason to avoid relying on regional systems to do this work is that recent efforts to adopt regional agreements prohibiting discrimination on the basis of sexual orientation have failed (e.g. the Inter-American Anti-Discrimination Convention and the EU Anti-Discrimination Directive).  An Ottawa Process for an agreement on LGBTQ rights, as you argue, could avoid the political roadblocks that these proposed regional agreements keep hitting.
    On the argument that LGBTQ rights are “Western” or culturally-specific: I most certainly agree with you that the argument is baseless (and always ironic when used in the UN context, where the Vatican and US-based organizations are always some of the most vocal opponents of including language on sexual orientation in agreements on non-discrimination).  The argument does, however, hold a great deal of persuasive power in many states.  Perhaps an LGBTQ treaty could avoid the “Western import” label by following the example of the Yogyakarta Principles’ developers– experts and states from the Global South were leaders in advancing the Principles.  Perhaps a Buenos Aires Process for this one, then?
    Really enjoyed your post.

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