Council debates decriminalisation of consensual sexual conduct
Monday, 21 June 2010 15:38


The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Anand Grover, presented his report to the 14th session of the Human Rights Council (the Council) on 4 and 7 June 2010. His report focuses on how criminalisation of same-sex relations and same-sex orientation, sex work, and HIV/AIDs transmission impair the enjoyment of the right to health. Ms Maria Magdalena Sepulveda Carmona, the Independent Expert on the question of human rights and extreme poverty, and Ms Rashida Manjoo, the Special Rapporteur on violence against women presented their reports to the Council at the same time.


Mr Anand also presented reports on his visits to Poland, Australia, and India. Mr Anand was concerned about rights to sexual and reproductive health in Poland and critisiced it for not ensuring that women have access to legal abortions and contraceptives. In relation to Australia, Mr Anand pointed to the disproportionate gap of indigenous peoples’ health rates to those of the ‘mainstream Australian’. On his predecessor’s visit to India, Mr Anand stated that the State despite progress will not succeed to reduce its maternal mortality rate to the MDG target. Mr Anand will report on his recent visit to Guatemala at the Council’s June 2011 session.


During the interactive dialogue that followed many States commented on the Special Rapporteur’s report. Given the controversial subjects covered by the thematic report, it was little surprise that a number of States were highly critical of Mr Anand’s analysis and recommendations (Egypt, Bangladesh, Nigeria on behalf of the African Group, Pakistan on behalf of the OIC, African Union, Botswana, Iran, Algeria).

However, many other States spoke in support of the Special Rapporteur’s focus while recognising that the issues he examined are indeed sensitive (Brazil, European Union, Norway, France, UK, Uruguay, Belgium, Canada, Nepal, Guatemala, Slovenia). Those that criticised the report focused their criticism almost exclusively on the examination of criminalisation of consensual same sex conduct. They argued that Mr Anand had examined an issue that does not enjoy universal recognition and that in doing so he had overstepped his mandate (Pakistan on behalf of the OIC, Nigeria on behalf of the African group, Egypt, Botswana, Algeria, Iran). Pakistan on behalf of the OIC even accused the Special Rapporteur of bias and criticised him for having focused on a ‘negligible group’. States also advanced the view that the Special Rapporteur should have focused more on other marginalised groups (South Africa) with Bangladesh arguing that lesbian, gay, bisexual and transgender persons are not marginalised at all and that the Special Rapporteur was trying to ‘invent’ a new marginalised group.


Many States also suggested that the Special Rapporteur should have dedicated his report to the topical issue of the Millennium Development Goals South Africa, Nigeria on behalf of the African Group, African Union) in light of the MDG Summit in September or other issues of particular concern to developing countries, such as resource availability (Pakistan on behalf of the OIC).


Pakistan on behalf of the OIC ended its statement by warning the Special Rapporteur that it would monitor his future activities and take ‘appropriate action’ if he continued to disrespect the Code of Conduct for special procedures.


Notably, South Africa acknowledged that its Constitution protects people against discrimination based on their sexual orientation and gave inappropriate recognition to the sovereignty of States with regard to this issue. Brazil, Bolivia and Nepal also drew attention to their domestic laws and policies in these areas.


Norway, France, Slovenia, the UK and others supported the Special Rapporteur’s call for decriminalisation of homosexuality. The USA while broadly supportive of Mr Anand’s report stated that it could not support the recommendation to decriminalise sex work as it was not convinced that this is the best way to deal with that phenomenon. Norway, Canada and the UK defended the Special Rapporteur’s report as being within his mandate. They also found it necessary to address these issues no matter how sensitive they are. In a noteworthy joint statement UNAIDS and WHO endorsed the Special Rapporteur’s analysis and recommendations and called for the removal of punitive laws that often single individuals out for ‘invidious treatment’, undermine individual and public health, and violate international human rights law.


Australia broadly welcomed the Special Rapporteur’s visit but did not commit to specific follow up to his findings and recommendations. Less receptive to the Special Rapporteur’s findings was Poland. It stated that there is no correlation between the liberalisation of abortion and the reduction of maternal mortality rates and contested the Special Rapporteur’s findings regarding limited access to contraceptives. In his replies, the Special Rapporteur defended his findings.


In his replies before he had to leave, Mr Anand emphasised that he believes the issues to be within his mandate. He underlined that while the issues were controversial they should not be ‘swept under the carpet’ but had to be brought to the Council’s attention. He urged States to examine the issues, including the cultural issues that had brought about criminalisation. Mr Anand hoped to be ‘pardoned’ for being more independent than States would like. Finally, he welcomed the debate despite the disagreements expressed.

Last Updated on Tuesday, 24 August 2010 17:01
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