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THE FAMILY ARTICLES

Official Platform

"Civil Society for the Family"

1. The family is defined in international law and policy as “the natural and fundamental group unit of society.” As such, it is “entitled to protection by society and the State” and is a proper subject of human rights.

2. The Universal Declaration of Human Rights and binding international instruments reserve singular protections for the family in recognition of the family’s irreplaceable role as “natural environment for the growth and well-being of all its members and particularly children.”

3. The best available social science validates the exceptional status of the family in international law.

4. International law further establishes that the family is formed through the union of a man and a woman who exercise their right to freely “marry and found a family.” This fundamental right is enshrined in the Universal Declaration of Human Rights and binding international instruments.

5. Relations between individuals of the same sex and other social and legal arrangements that are neither equivalent nor analogous to the family are not entitled to the protections singularly reserved for the family in international law and policy.

6. The UN secretariat, agencies, treaty bodies, and other mandate holders are bound to assist Member States in fulfilling their obligations toward the family as defined in international law, and following the directions of UN Member States.

7. The international community has repeatedly rejected attempts to redefine the family in international law and policy. Any mention of the family in UN resolutions and conference outcomes can only be interpreted in reference to a man and a woman united in marriage, and relations that are equivalent or analogous, including single parent families and multigenerational families.

8. Acts and declarations by UN entities and mandate holders that treat relations between individuals of the same sex as equivalent or analogous to the family, including acts and declarations purporting the existence of international human rights obligations on the basis of “sexual orientation and gender identity” are ultra vires and cannot give rise to binding legal obligations on sovereign states. Such acts and declarations are not based on valid interpretations of international law and policy, and cannot contribute to the formation of new customary international law.

9. International law protects all children equally, even when they are deprived of their family. It does not require sovereign states to extend the specific protections reserved for the family in international law and policy to social and legal arrangements that are neither equivalent nor analogous to the family.

To do so would threaten and undermine the fundamental human right of children to know and be cared for by their mother and father, and may jeopardize their health and wellbeing.

10. UN resolutions, declarations, and conference outcomes should continue to reflect the definition of the family in international law and never use language that implicitly or explicitly attempts to dilute, erode, or undermine it. Any such language is incompatible with international human rights law and its use may constitute a violation of the fundamental human rights it enshrines.

EXPLANATORY NOTES ON THE FAMILY ARTICLES

Introduction

Recent pressure to grant international status and recognition to social and legal arrangements between individuals of the same sex in the context of the United Nations has led to confusion and acrimony in international negotiations on the subject of the family. Unfortunately, this has led to the exclusion of the family altogether from recent debates in the UN General Assembly. This position statement and explanatory notes are intended to constructively move the debate beyond the current impasse to a more fertile approach that will recognize the importance of the family for all individuals and society at large, but most especially for children.

 

Note 1

The Universal Declaration of Human Rights (UDHR) defines the family as “the natural and fundamental group unit of society” and declares that it is “entitled to protection by society and the State” UDHR 16. The International Covenant on Civil and Political Rights (ICCPR 23), the International Covenant on Economic, Social, and Cultural Rights (ICESCR 10.1), and the Convention on the Rights of the Child (CRC, Preamble) reflect the UDHR verbatim in their provisions.

These binding international norms have not gone unheeded. At least 111 countries have constitutional provisions that echo Article 16 of the UDHR. See World Family Declaration, available at http://worldfamilydeclaration.org/WFD.

By virtue of these provisions in international law the family is a proper subject of human rights and is a bearer of rights in international human rights law. See Charter of the Rights of the Family, (October 22, 1983), available at: http://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_19831022_family-rights_en.html. See also The Family and Human Rights (December 16, 1998), available at: http://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001115_family-human-rights_en.html.

The outcomes of United Nations conferences have recognized as much. The Programme of Action of the 1994 International Conference on Population and Development, for example, referred to the “rights of families” (UN document A/CONF.171/13, paragraph 5.4). Similarly, the Programme of Action of the 1995 World Summit for Social Development recognized that the family is “entitled to receive comprehensive protection and support” (UN document A/CONF.166/9, paragraph 80).

 

Note 2

By highlighting the “natural” and “fundamental” character of the family as social unit international law recognizes the family as a universal human experience that antedates any positive legal status or definition of the family. The family is as it were a pre-juridical entity. It is as such that the family is “entitled” to protection by society and the state.

The underlying justification for the singular protections to which the family is entitled in international law is best expressed in the Preamble of the CRC, which affirms how “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community” (CRC, Preamble).

The importance of the family for the growth and well-being of children was also seen as the underlying reason for the special protections it is afforded under international law in the Declaration and Programme of Action of the 1993 World Conference on Human Rights, which stressed that “the child for the full and harmonious development of his or her personality should grow up in a family environment which accordingly merits broader protection” (A/CONF.157/23, paragraph 21).

In this regard, it is important to note how ICESCR established the obligation of state parties to that convention to provide the “widest possible protection and assistance to the family,” and that the right to an adequate standard of living extends not only to individuals but to individuals “and their families” (UDHR 23, 25; ICESCR 7, 11.1). The ICESCR, in this sense, does not merely “entitle” the family to generic social and economic protection and assistance, as the ICCPR, but requires states to provide the family with the “widest possible” protection and assistance.

Several other core obligations of states towards the family in international law are also well established. These include, the protection of the equal rights of men and women to freely enter into marriage and found a family, and their equal rights during marriage and at its dissolution (UDHR16, ICCPR 23, ICESCR 10); the obligation to create an environment conducive to family formation and stability (UDHR 23, 25, ICESCR 10, 11, CRC 18, 23, 27); the protection of the right of the child to know and be cared for by her/his parents; and the related rights of the child to a cultural and religious identity (ICCPR, 23, 24, CRC 2, 3, 5, especially 7, 8, 9, 10, 18, 27) and the “prior” right of parents to educate their children in accordance with their convictions (UDHR 26.3, ICCPR 18, CRC 2, 3, 5, 14, 20, 29, 30).

 

Note 3

The self-evident truth of the benefit of the family to its individual members and society at large enshrined in international law is validated by the best available social science and research, making use of the most reliable data and widest possible samples.

Children thrive in intact families formed by the marriage of a man and a woman. It is the place where individuals learn both love and responsibility. No other structure or institution is able to deliver the same quality outcomes for children as the family composed of a man and a woman in a stable and enduring relationship (Regnerus M., “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study”. Soc Sci Res. 2012 Jul;41(4):752-70. Findings of this research are also observable at the website: http://www.familystructurestudies.com).

A host of negative outcomes result from family breakdown and deprivation. When children are not brought up by their biological parents in a stable family environment, as for example in unmarried, cohabiting, and same-sex households, they are more likely to experience school failure, lower levels of education, behavioral problems, drug use, and loneliness, among other negative outcomes, as well as physical, sexual, and emotional abuse. Ibid. Regnerus, M.; see also Sullins, Donald Paul, Emotional Problems among Children with Same-Sex Parents: Difference by Definition (January 25, 2015). British Journal of Education, Society and Behavioural Science 7(2):99-120, 2015. Available at SSRN: http://ssrn.com/abstract=2500537; and Sullins, Donald Paul, Child Attention-Deficit Hyperactivity Disorderv (ADHD) in Same-Sex Parent Families in the United States: Prevalence and Comorbidities (January 21, 2015). British Journal of Medicine & Medical Research 6(10): 987-998, 2015, Article no. BJMMR.2015.275, ISSN: 2231-061. Available at SSRN: http://ssrn.com/abstract=2558745.

Entering marriage and founding a family is associated with better physical and mental health, emotional wellbeing, less criminality and substance abuse, and longer life expectancies for both men and women. It is also positively correlated with lower infant mortality. Moreover, research shows that healthy families formed by the union of a man and a woman result in more healthy families. While individuals who do not experience the benefits of being raised by their mother and father can rise above their circumstances, children born in families that stay together are more likely to form their own families. See Wilcox et. al, Why Marriage Matters, Thirty Conclusions from the Social Sciences, Institute for American Values New York, 2011, available at: http://www.breakingthespiralofsilence.com/downloads/why_marriage_matters.pdf.

The family is essential in combating poverty and creating economic opportunity.

A landmark Harvard study shows the best predictor of social mobility in the United States is the family. The most consistent factor in the ability of individuals to emerge from poverty and climb the social ladder is living in areas where families stay together. See Chetty, Raj and Hendren, Nathaniel and Kline, Patrick and Saez, Emmanuel, Where is the Land of Opportunity? The Geography of Intergenerational Mobility in the United States, January 2014. NBER Working Paper No. w19843. Findings of this research are also observable at the website: http://www.equality-of-opportunity.org.

Entering marriage and founding a family is correlated with higher earnings and social mobility. When the family breaks down new generations and entire social strata become trapped in the cycle of poverty. Moreover, the economic synergies found naturally in families are impossible to recreate through government programs or institutions. Even aside from the direct social and economic costs of family breakdown because of its effect on children and parents outlined above, the breakup of the family results in exponentially higher expenses for governments through welfare programs to care for children and youth who do not benefit from an intact family, as well as adults and elderly persons whose only safety net is found in the public purse. Ibid. Wilcox, B., et al.

The benefits of the family for individuals and communities are repeated across borders and all segments of society regardless of social and economic status, including among minorities. See Fernando Pliego Carrasco, Tipos de familia y bienestar de niños y adultos: El debate cultural del siglo XXI en 13 países democráticos, Universidad Nacional Autónoma de México, Instituto de Investigaciones Sociales 2013. Findings of this research are also observable at the website: http://www.tiposdefamilia.com/libro.

 

Note 4

Even as the family acquires specific legal characteristics across legal systems and social contexts, cultures and religions, international law recognizes and protects the fundamental human right to marry and found a family. This fundamental right antedates any formal recognition of marriage by society and the state, and sanctions the self-evident truth of marriage as a permanent and exclusive union of a man and a woman naturally oriented towards procreation and childrearing. See Girgis, Sherif and George, Robert and Anderson, Ryan T., What is Marriage? (November 23, 2012). Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155.

The UDHR (Article 16) ties the founding of the family to marriage, and affirms that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution (emphasis added).” The UDHR 16 language on the equal right to marry and found a family of men and women is reflected verbatim in the ICCPR (Article 23), the ICESCR (Article 10), as well as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW 16), which refers to equality within marriage as between “men and women” and refers to “husband and wife” in the context of the family.

These provisions effectively define the family in international law as resulting from the union of a man and a woman in marriage. This definition of the family is called natural family by anthropologists or nuclear family by social scientists.

The European Convention on Human Rights (ECHR 12) and the Inter-American Convention on Human Rights (IACHR 17) also reflect the langue of the UDHR on the right to marry and found a family verbatim.

In fact, the European Court of Human Rights has said on multiple occasions, while interpreting the provision on the right to marry and found a family in the ECHR (Article 12), that marriage is understood in the ECHR to be between a man and a woman, and that states do not have an obligation to grant individuals who identify as LGBT the right to marry another individual of the same sex. See HÄMÄLÄINEN v. FINLAND, no. 37359/09, § 71, ECHR 2014; SCHALK AND KOPF v. AUSTRIA, no. 30141/04, § 101, ECHR 2010; HÄMÄLÄINEN v. FINLAND, § 96; REES V. UK, § 49; REES V. UK, § 49). It should be conversely noted that the Court has elsewhere inconsistently applied the term “family” to relations between individuals of the same-sex.

 

Note 5

The definition of the family in international law only applies to relations between men and women and does not apply to relations between individuals of the same sex and other social and legal arrangements between adults that are not equivalent or analogous to the family, and indeed, incapable of constituting a family for purposes of international law.

The Vienna Convention on the Law of Treaties (VCLT) provides the most authoritative canon to interpret international treaties, and is considered widely to be part of customary international law.  According to the VCLT (Article 31) treaties must be interpreted in “good faith” according to the “ordinary” meaning of the terms of the treaty as they were understood at the time the treaty was negotiated and its overall “object and purpose.”

The ordinary meaning of the text of the provisions of international law on the right to marry and found a family is unambiguous. These provisions preclude that they apply to relations between individuals of the same sex because they explicitly refer to men and women and their equality before, during, and after marriage.

Moreover, it is impossible that UN member states could have intended these provisions to apply to relations between individuals of the same sex because at the time when all UN treaties were negotiated, with the single exception of the Convention on the Rights of Persons with Disabilities (CRPD), so-called same-sex “marriage” or unions of any type did not exist anywhere in the world, and neither did any kind of legal status for relations between individuals of the same sex. The first country to ever enact so-called same-sex “marriage” was the Netherlands in 2001. The first country to give any type of legal status to relations between individuals of the same-sex was Denmark in 1989.

 

Note 6

The mandate of the United Nations secretariat and agencies emanates from the sovereign will of UN member states expressed in the Charter of the United Nations and the resolutions of the General Assembly. Any actions by the secretariat must be mandated unambiguously by the General Assembly.

Article 98 of the United Nations Charter requires the Secretariat to follow the instructions of UN Member States and to perform his functions “as are entrusted to him” by the inter-governmental charter bodies of the United Nations. Article 100 of the UN Charter prohibits the UN Secretary General or his staff from seeking or receiving “instructions from any government or from any other authority external to the Organization,” further instructing the Secretary General and his staff to “refrain from any action which might reflect on their position as international officials responsible only to the Organization.”

The expression of the sovereign will of UN member states enshrined in UDHR 16 is still the normative framework for the secretariat and agencies to understand the family and develop policies and programs to strengthen and protect it. Therefore the secretariat and agencies may not expand their mandate unilaterally, or change the substance of UDHR 16 to include relations between individuals of the same sex and other social and legal arrangements that are not equivalent or analogous to the family.

Any mention of the family in UN policies and programming should reiterate the understanding at the founding of the United Nations that the family is the “natural and fundamental group unit of society” and abide by the definition of the family in international law. This excludes any international recognition for relations between persons of the same-sex as capable of constituting a “family,” as in the case of social and legal arrangements like homosexual civil unions and so-called gay “marriage” (See Note 4 above and Note 7 below).

 

Note 7

The Universal Declaration of Human Rights is the only UN consensus outcome to define the family and how it is formed for purposes of UN policy. Moreover, it embodies the definition of family enshrined in binding human rights instruments to which every single UN member state is a party.

Any mention of the family in a UN resolution or other intergovernmental outcome of the United Nations can only be interpreted as referring to the union of a man and a woman in marriage or in reference to relations that are at least analogous to the family. Relations between individuals of the same sex are not analogous to the family because by definition the family requires the union of a man and a woman and their natural offspring.

Beginning with the Programme of Action of the International Conference on Population and Development (ICPD) UN policy employed the phrase “various forms of the family exist” (UN document A/CONF.171/13, Principle 9) when describing the family. This phrase never displaced the definition of the family in the Universal Declaration of Human Rights, or the understanding that the family results from the union of a man and a woman. This is reflected also in the ICPD outcome itself where it states, “While various forms of the family exist in different social, cultural, legal and political systems, the family is the basic unit of society and as such is entitled to receive comprehensive protection and support (ICPD 5.1).”

Similarly, the Programme of Action of the 1995 World Summit for Social Development recognized that “[i]n different cultural, political and social systems, various forms of the family exist.” However it also linked the family to marriage, and when discussing the topic of the family it states that “[m]arriage must be entered into with the free consent of the intending spouses, and husband and wife should be equal partners.” (UN document A/CONF.166/9, paragraph 80).

The entirety of Chapter V of the ICPD outcome dedicated to the family and family structure, does not pretend to redefine the family, but simply used the word “family” analogously (ICPD 5.6) for “single-parent and multigenerational families” (see section below in notes 9 and 10). These situations, indicative of family breakdown, are certainly analogous and derivative of the family as enshrined in international law. It is important to highlight that even in this context the ICPD outcome did not use the term family in reference to “one-person households” (emphasis added).

In recent years, the phrase “various forms of the family exist” has been rejected by the General Assembly because of now confirmed suspicions that it would be construed by the UN secretariat and agencies as a mandate to recognize and promote the notion of so-called same-sex “marriage” or “families.” The Office of the High Commissioner for Human Rights (OHCHR) is spearheading a UN system wide effort to promote these notions (addressed below in Note 8). Recent General Assembly resolutions on the family excluded the phrase “various forms of the family exist”, most significantly the General Assembly resolution on the celebration on the 20th Anniversary of the International Year of the Family and its predecessor resolutions (UN Document A/RES/69/144).

The 2030 Agenda also excludes this notion (UN document A/RES/70/1). In fact the 2030 agenda goes further, and distinguishes “the family” from “the household”, highlighting the exceptional status of the family in international law and policy as a status not shared by other social and legal arrangements. Target 5.4 of the Sustainable Development Goals commits government to “recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate.” The implication of this target, is that while the family is entitled to protection under international law, countries may at the national level extend protections to other households as they deem fit, even if they are not equivalent or analogous to the family. This continues to excludes international recognition for any and all households as capable of constituting a family in UN policy and programming.

The exceptional status of the family in international law and policy is not too narrow to include also situations where the family is not intact, or where children deprived of their biological family are adopted by a putative family.

UN policy may indeed provide for “single-parent and multi-generational families” because they are analogous or derivative in so far as they seek to preserve the natural bonds of the family and the blood ties between children and their guardians, or try to reconstitute the nuclear family for a child deprived of his/her intact family in the absence of blood ties.

On the other hand, relations between individuals of the same sex and other social and legal arrangements that are neither equivalent nor analogous to the family should not be recognized as “families” by the UN secretariat and agencies in UN policies and programmes. There is no indication that the General Assembly wanted to extend the protections specifically reserved for the family under international law to relations between persons of the same-sex and other social and legal arrangements that are not equivalent or analogous to the family in the ICPD outcome, or the outcomes of subsequent UN conferences that employed the phrase “various forms of the family exist.”

 

Note 8

Over the last decade the UN secretariat and agencies have been advancing a controversial social agenda under the guise of human rights for individuals that identify as lesbian, gay, bisexual, transgender, or otherwise (LGBT), including most recently by promoting the notions of same-sex “marriage” and homosexual “families.” An OHCHR report details how every UN agency is now working to promote this agenda throughout the UN system. See “The Role of the United Nations in Combatting Discrimination and Violence against Individuals Based on Sexual Orientation and Gender Identity,” November 2015, available at: http://www.ohchr.org/Documents/Issues/Discrimination/UN_SOGI_summary25Nov2015.pdf.

In 2014 the UN Children’s Fund (UNICEF) released a “Position Paper,” on “Eliminating Discrimination Against Children and Parents Based on Sexual Orientation and/or Gender Identity,” making the case for giving legal recognition to same-sex “families,” decriminalizing sodomy, and making the age of consent for sex the same for sodomy. After some controversy the paper was no longer listed as a “Position Paper” but as part of a “Current Issues” series. UNICEF, Current Issues No. 9, available at: http://www.unicef.org/esaro/Current_Issues_Paper-_Sexual_Identification_Gender_Identity.pdf.

Since 2013 the powerful UN human rights bureaucracy has been conducting a campaign called “Free and Equal” that recently promoted so-called gay “marriage” at UN Headquarters in an event extolling the marriage of Brazilian celebrity Daniela Mercury to another woman. See Free and Equal campaign website available at: https://www.unfe.org; See also Stefano Gennarini, “UN Officials Promote Homosexual Marriage In Latin America through Celebrity Culture, Judicial Activism, and Executive Overreach”, Friday Fax, November 26, 2015, available at: https://c-fam.org/friday_fax/un-officials-promote-homosexual-marriage-latin-america-celebrity-culture-judicial-activism-executive-overreach/.

In September 2015 twelve major UN entities, including UNDP, OHCHR, WHO, UNFPA, UNICEF, UNESCO, WFP, UNHCR, UNAIDS, UNODOC, and the ILO, released a statement that ambiguously refers to “families” of individuals who identify as LGBT, and laments how children face discrimination “on the basis of their actual or perceived sexual orientation or gender identity, or that of their parents (emphasis added).” See “Ending, Violence and Discrimination Against Lesbian, Gay, Bisexual, Transgender, and Intersex People,” available at: http://www.ohchr.org/EN/Issues/Discrimination/Pages/JointLGBTIstatement.aspx.

These acts and declaration of the UN secretariat and other UN entities are based for the most part in the non-binding recommendations of UN treaty bodies and special procedures. While these recommendations are not binding, the OHCHR and the treaty bodies like to describe them as “authoritative”, and even refer to views of the treaty bodies as “jurisprudence” improperly suggesting the status of binding precedent that term denotes in common law systems (OCHCHR website: http://juris.ohchr.org).

On the whole, when dealing with same-sex relations these treaty body recommendations contain unfounded and inaccurate assertions about the obligations of UN member states, and scholars have called into question the authority of treaty bodies to issue such recommendations. See Kloster, Andrew and Pedone, Joanne, Human Rights Treaty Body Reform: New Proposals (June 27, 2011). Journal of Transnational Law & Policy, Vol. 22, Spring 2013, available at SSRN: http://ssrn.com/abstract=1885758. See also San Jose Articles, Notes to Article 6, available at: www.sanjosearticles.com.

The main thrust of these recommendations is captured in two reports of the Office of the High Commissioner for Human Rights on violence and discrimination on the basis of “sexual orientation and gender identity” (UN document A/HRC/29/23 and A/HRC/19/41) following two narrowly adopted resolutions on “sexual orientation and gender identity of the Human Rights Council.

For example, the reports say that international treaties require states to recognize homosexual relations and extend to them the same benefits reserved for marriage between a man and a woman, including parental rights, to recognize transsexual sex-change in law, decriminalize any and all consensual sex between adults, enact special protections for individuals who identify as LGBT in criminal and employment laws and other law enforcement mechanisms, grant special asylum rights to individuals and their families when they identify as LGBT.  See Report of the United Nations High Commissioner for Human Rights on discrimination and violence against individuals based on their sexual orientation and gender identity, 4 May 2015 (UN Document A/HRC/29/23); Report of the United Nations High Commissioner for Human Rights on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 17 November 2011 (UN Document A/HRC/19/41).

The OHCHR also prepared a report on protection of the family for the 31st Session of the Human Rights Council that attempts to create space for international recognition of so-called same-sex “marriage” and “families” within the definition of the family in international law (UN document A/HRC/31/37).

In the report the OHCHR asserts “There is no definition of the family under international human rights law,” and that it should be understood in a “wide sense” (Paragraph 24). The report equates the nuclear family with “the extended family, and other traditional and modern community-based arrangements” when it comes to caring for children and binding international obligations addressing guardianship (Paragraph 25), and cites examples of countries extending protections reserved for the family to relations between individuals of the same sex as examples of changes in family law and policy, as if it were a matter of course that international law and policy should account for such changes (Paragraph 51-75).

These acts and declarations of the UN secretariat, treaty bodies, and other UN entities are ultra vires. They are not based on valid interpretations of international law and as such cannot create new legal obligations either as interpretations of existing international instruments or by way of customary international law, consistent with the principle ex inuria jus non oritur (law cannot arise from offenses against the law).

This applies also to the purported existence of special rights on the basis of “sexual orientation and gender identity” for individuals who identify as LGBT. All human beings possess the same fundamental human rights by virtue of their inherent dignity and worth (UDHR, Preamble and Article 1), but sexual preferences and behaviors are not protected by international human rights law except in the context of the right of men and women to freely marry and found a family.

Debates on the use of the terms “sexual orientation” and “gender identity” within the United Nations in reference to individuals who identify as lesbian, gay, bisexual, and transgender (LGBT) are often conducted with the assumption that these notions are clearly defined in science and law. In fact, there is no scientific consensus on how to define sexual orientation, very few countries treat individuals that identify as LGBT as a discrete class of persons, and many proscribe homosexual conduct because of moral and public health concerns. See the Amicus Brief of Dr. Paul McHugh in the U.S. Supreme Court case of Hollingsworth v. Perry (containing a detailed discussion of the science), available at: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-144-12-307_merits-reversal-dpm.authcheckdam.pdf.

No UN human rights treaty includes the words “sexual orientation and gender identity” in any form nor does the context and drafting histories of respective treaties allow a good faith interpretation that includes special protections for sexual preferences or behavior. Unlike freedom of conscience and religion sexual preferences are not protected under international human rights law.

Quite aside from any moral considerations, there is no legal basis for asserting any special protections for sexual preference and behavior outside of the context of the right to marry and found a family, according to the definition of the family outlined above (footnote 4 and 5).

International human rights law does not protect unfettered sexual autonomy or any kind of sexual conduct between consenting adults whatsoever. The only scope for autonomous sexual choices recognized in international law is found in the context of the right to freely marry and found a family (UDHR 16, ICCPR 23 and 24, CESCR 10) and the equal right of men and women to decide freely and responsibly on the number and spacing of children (CEDAW 16).

The right to privacy and family life similarly does not protect unfettered sexual autonomy. The UDHR and ICCPR indeed recognize a right to be free of interference in one’s privacy and family (UDHR 17; ICCPR 17). But this cannot be understood to protect unfettered sexual autonomy or any kind of sexual activity between consenting adults whatsoever.

At the time that these human rights instruments were negotiated and adopted by UN member states many countries outlawed sodomy, and nearly 80 still do so to this day. Many countries also restricted or penalized other forms of sexual conduct between consenting adults, including incest, adultery, and fornication, and many countries still do today. Therefore it is inconsistent to say that either the right to privacy or the prohibition against unjust discrimination in international law presume the protection of sexual preferences and behaviors outside of the context of the right to marry and found a family, as defined in international law.

UN political consensus similarly does not recognize these categories. The UN General Assembly has repeatedly refused to include this notion in UN resolutions.

The only times the terms have ever appeared in a General Assembly resolutions has been in bi-annual resolutions on extrajudicial killings, and even then, not by consensus (UN document A/RES/69/182).

The Human Rights Council resolutions on “sexual orientation and gender identity” only barely passed and were only procedural, merely requesting the reports mentioned above, and not validating “sexual orientation and gender identity” as a protected status recognized in international law (UN document A/HRC/RES/17/19, adopted by a recorded vote of 23 to 19, with 3 abstention, and UN document A/HRC/RES/27/32 adopted by a recorded vote of 25 to 14, with 7 abstentions). The UN secretariat and agencies cannot use these resolutions as a basis to modify the definition of the family in international law, so that it applies to relations between individuals of the same-sex.

 

Note 9

Validating the choices of adults to live with individuals of the same sex or in other social and legal arrangements that are not analogous to the family, and equating them to the family, is not necessary to prevent discrimination against children. International law requires the protection of children regardless of their situation in life but it does not require states to confer the special protections reserved for the family on relations between individuals of the same sex and other social and legal arrangements between adults that are not equivalent or analogous to the family.

The Universal Declaration of Human Rights and binding international human rights treaties recognize that many children are deprived of their family and must be provided with adequate protection, by providing that “[m]otherhood and childhood are entitled to special care and assistance” and that “all children, whether born in or out of wedlock, shall enjoy the same social protection” (Article 25).

This does not require states to elevate any social and legal arrangement where children may be situated as equivalent to the family. In fact, this norm enshrined in binding international human rights instruments, including the International Covenant on Civil and Political Rights (Article 24), the International Covenant on Economic, Social, and Cultural Rights (Article 10), and the Convention on the Rights of the Child (Articles 2, 7, 8, 20), underscores the obligation of member states to protect the family as the optimal environment for children (See Note 3 above). It presumes that states will afford the family specific protections that are not available to any type of household arrangement. Precisely because of this it requires states to make special efforts to protect children in whatever situation they may be, and to protect mothers whether or not they are married.

Children have a fundamental human right to know and be cared by their mother and father under international law. It is the basis for rights of the child in the context of family reunification policies and adoption (ICCPR, 23, 24, CRC 2, 3, 5, especially 7, 8, 9, 10, 18, 27). It is also related to the “prior” right of parents to educate their children in accordance with their religious and moral convictions and to the right of the child to a cultural and religious identity (UDHR 26.3, ICCPR 18, CRC 2, 3, 5, 14, 20, 29, 30).

Legal recognition, on the same basis as the family, for relations between persons of the same sex or other social and legal arrangements that are neither equivalent nor analogous to the family, threatens the right of the child to know and be cared for by his/her parents. This takes place where adoption and step-child adoption gives legal guardianship of a child to persons that are not biologically related to the child in the context of so-called same-sex marriages and homosexual unions, or other social and legal arrangements that are not equivalent or analogous to the family. This kind of legal regimen directly threatens and undermines the right of the child, who is vulnerable and physically, intellectually, and emotionally immature to know his/her parents.

Such legal regimes may also threaten the health and wellbeing of children (See Note 3 above).

 

Note 10

The recent resurgence of the language of the UDHR (Article 16) on the family as “the natural and fundamental group unit of society” in Human Rights Council resolutions on protection of the family (UN documents 26/11 and 29/22), as well as resolutions of the Commission for Social Development (UN document E/CN.5/2014/L.5) is a welcome development that bodes well for the future.

Abandoning UDHR 16 would lead to the erosion of the definition the family in international law and policy, and eventually create the space within the institutional framework of the United Nations for a harmful re-definition of the family that reduces family to government sanction of adult sexual and emotional desires, where children are commodities to be manufactured, contracted for, and ultimately purchased.

Any ambiguity with regard to what constitutes a family presently will be construed by the UN secretariat and agencies as international recognition for social and legal arrangements between persons of the same-sex as “families” and a mandate to promote same-sex “families”, as well as sexual orientation and gender identity as categories in international human rights law or UN social policy.

C-Fam Statement during the Informal consultations of co-facilitators on 2020 treaty body review for States and civil society
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Friday, 28 August 2020, Palais des Nations, Geneva

Thank you,

It has been our hope for some time that UN member states would review the work of UN treaty bodies, not just with regard to considerations of functionality and resources, but also substantive output. As an organization primarily focused on the protection of life in the prenatal phase and the protection of the family we are especially alarmed by the lawless promotion of abortion and LGBT issues by UN treaty bodies.

We invite you all to read our written submission on this latest round of treaty body review on the OHCHR website, for further information. We only want to offer here some of our principal suggestions and comments.

First, it is essential for the credibility of the UN human rights system that the opinions expressed by UN human rights experts, and UN treaty bodies in particular, should be legally sound. They should never interfere in internal policy debates that are best left to democratic lawmaking. Nor should they adopt extravagant or expansive interpretations of human rights treaties

In this regard, even a cursory review of the substantive output of UN treaty bodies can only lead to the conclusion that UN treaty bodies are failing to deliver the high-quality legal work that is expected of them. Even the recent report of the U.S. Commission on Unalienable Rights lamented the poor quality of much of the output of the UN human rights system. This does not bode well for human rights.

To help rectify this, we believe it is essential for UN member states to develop a set of basic competence requirements for UN treaty body members and a process for member states to verify that such requirements are met. Requirements should include the ability of experts to interpret the text of treaties in a legally sound way, as they were adopted by UN member states, as well as a commitment to not attempt to impose new obligations on states that states never agreed to in the treaties.

Second, UN member states, as the principal architects and stakeholders of the human rights system, have the duty to ensure UN treaty body members are held to the highest ethical standards and that UN treaty bodies are not captured by special interest groups. C-Fam experts have documented extensively over the last twenty years how UN treaty bodies have been co-opted by the abortion industry to promote abortion rights.

In this regard, we must sadly note that UN treaty bodies have not been able to police themselves. This is unacceptable. Treaty bodies possess great power simply because of the pulpit they have through being part of the UN human rights system. More is expected of them.

To aid treaty bodies in this and defend the integrity of the UN human rights system, UN member states have the authority to adopt a code of conduct for treaty body members and to develop a mechanism whereby states or other stakeholders can impugn treaty body members in cases when they exceed or abuse their authority. Such a mechanism should also be called into play when a conflict of interest or other ethical issue may arise calling into question the ability of UN treaty body members to execute their duties impartially and without bias.

Thirdly, and lastly, we must reiterate that unless this review of the treaty bodies looks to first order concerns it will not help the treaty bodies to function effectively and efficiently. Increasing the resources and supporting the ever expanding range of activities that treaty bodies create for themselves will not help improve the quality of the substantive output of UN treaty bodies.

Treaty bodies have developed a vast set of new tools that expand their mandate and artificially aggrandize their authority. For example, treaty bodies increasingly comment publicly on intergovernmental negotiations between UN member states. They also comment on the internal political debates and even domestic litigation before they are even resolved. This is a recipe for politicization and double standards.

To fix this, the General Assembly may scale back the OHCHR support for treaty bodies, to stop facilitating all non-mandated activities like concluding observations and exhaustive abstract general comments that are not based on the reports of states parties but on third party information as well as for media and press work of the UN secretariat to publicize the work of UN treaty bodies in this regard, so that only mandated activities of UN treaty bodies are supported..

It is true that UN member states may not dictate the working methods of UN treaty bodies, but they can certainly direct the OHCHR, which is an organ of the UN secretariat subject to the General Assembly’s direction and guidance.

This is a first order concern. When member states parties to a UN human rights treaty submit their periodic report, their reporting obligation is fulfilled. They have no obligation to entertain concluding observations, lists of questions, or follow-up processes, that have no mention in UN human rights treaties. All of these non-mandate activities should be discussed in this round of treaty body review.

I will end mentioning a fundamental principle of law, applicable across all different branches of law. Ex inuria ius non oritur. An offense against the law cannot give rise to a binding legal obligation. We see the principle most often cited in cases where a nation unlawfully occupies another’s territory or when a squatter asserts a property claim on a land they never legally possessed. In both cases the occupation cannot give rise to a binding legal obligation, because there was never a lawful claim of right.

I wish to cite it as a caution to all those who think that the mere repetition of false claims by UN human rights experts and their acceptance by some states can create new customary international law. False legal claims, such as the frequent claims of UN treaty bodies that abortion is a human right or that unfettered sexual autonomy has the same status as religious freedom in international human rights law, can never give rise to binding legal obligations, even if UN member states were to accept such claims.

We look forward to continue to work collaboratively with UN member states and civil society in this review process.

Thank you.

Civil Society for the Family objections to draft general comment 36
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September 26, 2017

CIVIL SOCIETY FOR THE FAMILY

Below are seven objections of Civil Society for the Family to the contents of paragraphs 9 and 10 of draft General Comment 36. “Civil Society for the Family” an alliance of over 180 organizations from around the world.

Members of the organizing committee of Civil Society for the Family are accredited with the Economic and Social Council of the United Nations, including, the Center for Family and Human Rights, the European Center for Law and Justice, Family Research Council, HazteOir, Human Life International, the Insitute for Family Policy, the National Organization for Marriage, Novae Terrae, and Ordo Iuris for Legal Culture. More information about the coalition can be found at www.civilsocietyforthefamily.org.

OBJECTIONS

1. Paragraphs 9 and 10 of General Comment 36 threaten the sovereignty and democratic legislative prerogatives of nations and their peoples.

Abortion and euthanasia are hot-button issues still debated in politics and culture all across the Globe. They are not issues that should be decided or resolved by an unelected, unaccountable, and mostly obscure committee of experts in Geneva. Moreover, many countries have policies directly contrary to what the committee suggests. At least 60 countries in the world have highly restrictive laws that run afoul of General Comment 36.

2. The International Covenant on Civil and Political Rights does not exclude unborn children from the right to life.
To say or imply otherwise is not consistent with the text and history of the treaty. Article 6 of the covenant prohibits the application of the death penalty to pregnant mothers. At no point during the negotiations of the covenant were children in the womb excluded from the right to life. Moreover, at the same time as the Covenant was negotiated, the 1959 Declaration on the Rights of the Child was adopted by the General Assembly, committing States to protect children “before as well as after birth.” This very declaration was made binding in 1989 in the prologue of the Convention on the Rights of the Child, which has achieved near universal ratification.

3. The International Covenant on Civil and Political Rights does not contain an obligation for State Parties to provide “safe access to abortion” under any circumstance.

Early in the drafting stages of the covenant in 1947, the framers explicitly rejected an obligation to allow abortion in cases where a child is conceived by rape, incest, or when carrying a pregnancy to term might endanger the life of a mother. While an obligation to prohibit abortion was also rejected in 1957, this cannot be interpreted as excluding children in the womb from the protections of the Covenant, for the reasons cited above. Rather, it must be seen as a compromise that allowed states with vastly different understandings of when and how the right to life applies in the prenatal phase to ratify the treaty. It does not exclude children from the right to life. It merely gives State Parties a wide margin of appreciation in applying the right to life before birth.

4. UN consensus rejects abortion as a right and continues to recognize abortion laws as an exclusively national prerogative.
Even sixty years after the UN Declaration on the Rights of the Child the General Assembly continues to reject a right to abortion. In 2015, when the General Assembly adopted the Sustainable Development Goals it reaffirmed that any policies related to sexual and reproductive health, including abortion, must be in accordance with the Programme of Action of the International Conference on Population and Development (ICPD), which explicitly rejected a right to abortion. More recent General Assembly resolutions mention abortion as part of “access to sexual and reproductive health” only “where such services are legal.”

5. The International Covenant on Civil and Political Rights does not contain an obligation for state parties to allow euthanasia or assisted suicide.

State parties have never understood the covenant to require or permit euthanasia for terminally ill persons afflicted by great suffering. No more than half a dozen states permit euthanasia in any form. And none of these even permitted euthanasia at the time the covenant was negotiated, with most changes happening in recent years. Nothing in the text and history of the covenant lends itself to the aberrant notion that euthanasia or assisted suicide may be characterized as “death with dignity,” as the committee does in paragraph 10 of General Comment 36.

6. The Human Rights Committee does not have the authority to create new obligations that were never agreed by sovereign states or even modify existing obligations.

The independence of treaty bodies and other UN experts is at the service of an authentic and judicious stewardship of the obligations that State Parties agreed in UN treaties. It is not a license to re-write treaties that took decades to negotiate. Treaty bodies must not usurp the role of State Parties, who alone are the final interpreters of their obligations. This is borne out by how the views and recommendations of UN treaty bodies are, by design of the negotiating states, neither binding nor authoritative on State Parties.

7. There is no scientific evidence that making abortion legal or more widely accessible leads to a reduction in maternal mortality due to abortion.

Claims that the legal status of abortion has an effect on overall maternal mortality are not supported by scientific evidence. If making abortion legal and more widely accessible were a key measure to improving maternal health, one would expect to see lower relative percentage of maternal mortality attributable to abortion in countries with more liberal abortion laws. The evidence simply does not show such this. The legal status of abortion appears entirely unrelated the maternal mortality levels from global maternal mortality data (See figure).

In the African region, which posts the highest rates of maternal mortality in the world, as maternal health overall improves deaths attributable to abortion decrease proportionally with all other causes of maternal death.

This means the reduction in maternal deaths attributable to abortion have more to do with better and more accessible health care, particularly emergency obstetric care, than the legal framework of abortion. Indeed, the best epidemiological evidence shows that access to maternal health care and education level are the best predictors of maternal mortality levels, not abortion.

8. Physicians increasingly call into question the medical necessity of abortion under any circumstance, including in cases where the life of a mother is danger from a medical condition.

As an invasive and intensive procedure, the physical stress and emotional trauma of abortion are likely to aggravate already existing medical conditions that threaten the life of a pregnant mother. This is the conclusion of Dublin Declaration on Maternal Health written and signed by a select panel of the Committee on Excellence in Maternal Healthcare, in September 2012. Over 1000 Obstetricians/Gynecologists, Medical Professionals, Nurses and Midwives, Neonatologists & Pediatricians, and Medical Students have subsequently signed the Declaration.

For footnotes and graphs see PDF

Comment on the Report of the Commission of Unalienable Rights
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Center for Family and Human Rights (C-Fam) and Civil Society for the Family

This comment is provided by the Center for Family and Human Rights (C-Fam) on behalf of the coalition Civil Society for the Family, representing over two-hundred organizations dedicated to the protection of the family and the promotion of human dignity internationally. The organizing committee of Civil Society for the Family includes the following organizations: Center for Family and Human Rights (C-Fam), the European Center for Law and Justice, Family Research Council, HazteOir, Human Life International, the Institute for Family Policy, the National Organization for Marriage, Novae Terrae, and Ordo Iuris for Legal Culture. The official platform of the coalition may be found at the website www.civilsocietyforthefamily.org.

July 30, 2020

General Observations

Civil Society for the Family congratulates the Commission on the production of the initial version of its inaugural report. The report provides a deeply insightful account of the history of the U.S. tradition of unalienable rights and the mature reflection on the challenges facing the legitimacy of the international human rights system. It also adopts a balanced posture for U.S. foreign policy in light of the discrepancies that have emerged between the international system and the U.S. constitutional tradition.

As the commission has rightly noted, promoting human rights has historically been and must remain a central element of U.S. foreign policy. Human rights are not mere positive legal tools, as the Commission also observed, but an essential element of humankind’s attempt to establish justice and uphold human dignity. That is why the seriousness the Commission affords the legality of U.S. human rights obligations, and the criticism of much the output of international human rights bodies as the result of poor-quality work, is seen when the commission dismisses this outpur as incapable of generating new legal obligations. All this is a welcome departure from the legal realism that generally dominates international human rights discourse.

As the Commission develops the final report, we urge the Commission not just to look to the past in order to ground the human rights discourse of the U.S. government consistently with the U.S. Constitution and the legal obligations democratically undertaken by the American people through their elected representatives, as the commission has so helpfully done. For the commission to more effectively assist the U.S. Secretary of State in upholding unalienable human rights for all people throughout the world the Commission should also look prospectively.

Global political and social trends are rapidly changing the international human rights landscape. It is not enough for the U.S. State Department to simply defend the processes of the international human rights system. It must aggressively defend and uphold the substantive human rights principles that undergird the human rights project since it was founded.

Above all, the Commission should attempt to articulate what relation, if any, should exist between U.S. Supreme Court precedent and the U.S. State Department’s approach to international human rights.

Many of the topics on which there are new and conflicting human rights claims are addressed in U.S. Supreme Court precedent, such as the right to life and other legal protections for children before they are born, homosexual relations, transgender status, etc. Often the decisions of the U.S. Supreme Court suffer from the same flaws as international human rights mechanisms, including lack of democratic legitimacy and capture by interest groups.

As the commission explains in its report, the executive branch should adopt a textual reading of international treaties that affords the positive legal expression of human rights the highest respect. This implies that the executive branch must exercise its own independent prerogative to interpret both the U.S. Constitution and international human rights obligations according to the highest standards of legality, independently of the U.S. Supreme Court, much as President Abraham Lincoln did to undermine slavery. What deference, if any, the Supreme Court should be afforded by the executive branch in its approach to binding international human rights obligations, and especially those applicable to the U.S. government, is an open question that the Commission should explore in order to help the Secretary of State determine what are “universally recognized human rights” for purpose of U.S. law.

The question is especially relevant when the U.S. Supreme Court has not directly ruled or made a finding of law on the obligations of the United States under international law. But even where the U.S. Supreme Court were to make a finding directly applicable to a certain legal question, it should not be dispositive. On many of the controversial subjects, international law enshrines a substantive version of human rights that is at odds with the novel readings of the U.S. Constitution that emerge with more and more frequency from the U.S. Supreme Court. It would be helpful if the commission were to attempt to reconcile or begin to explain how such discrepancies can be reconciled.

For this reason, it is disappointing and troubling to the organizations making this comment that the commission merely agreed to disagree on the most hotly debated human rights issues of our time, such as abortion, the legal status of homosexual relations, and transgender issues. It is a lost opportunity to help ground the human rights discourse of the U.S. State Department in an approach to international human rights that is both respectful of the U.S. Constitution and international human rights law.

Even if just by way of illustration, it is highly appropriate for the Commission to identify select controversies on which the principles it developed for assessing human rights claims can be applied. This is all the more so in light of how frequently the topic of abortion has been brought to the attention of the Commission. Remaining silent in the face of the political controversy these topics elicit creates the impression that there is nothing cogent that can be said about these topics in light of international human rights law. Nothing could be further from the truth.

1. ABORTION

In light of the text and history of the right to life in the Covenant on Civil and Political Rights, to which the United States is a party, something substantive may be said on the topic of protections for children before birth without upsetting the political debates that are legitimately carried out through democratic institutions.

For instance, even though the U.S. Supreme Court has read a right to abortion in the U.S. Constitution since 1973, unborn children cannot be said to be excluded from the right to life in the International Covenant on Civil and Political Rights. To say or imply otherwise is not consistent with the text and history of the treaty. Article 6 of the covenant prohibits the application of the death penalty to pregnant mothers, precisely out of concern for the innocent unborn child, as the General Assembly 3rd committee records and the reports of the Secretary General at the time bear out.

Moreover, at no point during the negotiations of the covenant were children in the womb ever said to be excluded from the right to life. Moreover, at the same time as the covenant was negotiated, the 1959 Declaration on the Rights of the Child was adopted by the General Assembly, committing States to protect children “before as well as after birth.” This very declaration was made binding in 1989 in the prologue of the convention on the Rights of the Child, which has achieved near universal ratification. At the very least, Member States may interpret this passage as protecting the unborn child from abortion.

Early in the drafting stages of the covenant, in 1947, the framers explicitly rejected an obligation to allow abortion in cases where a child is conceived by rape, incest, or when carrying a pregnancy to term might endanger the life of a mother. Even if in 1957 the framers of the covenant decided to exclude a positive obligation to protect the unborn from abortion, it does not remove the presumption that the unborn are included in the protections of the covenant. Rather, it must be seen as a compromise that allowed states with vastly different understandings of when and how the right to life applies in the prenatal phase to ratify the treaty. In other words, it does not exclude children from the right to life. It merely gives State Parties a wide margin of appreciation in protecting the right to life before birth.

[These conclusions are based in the thorough analysis of the text and history of the ICCPD in Finegan, Thomas, International Human Rights Law and the “Unborn”: Texts and Travaux Préparatories, Tulane Journal of International & Comparative Law, Winter 2016, Vol. 25 Issue 1, at p. 14-23]

It should also be noted that UN political agreements based on consensus continue to reject abortion as a right and recognize abortion laws as an exclusively national prerogative. In 2015, when the General Assembly adopted the Sustainable Development Goals it reaffirmed that any policies related to sexual and reproductive health must be in accordance with the Programme of Action of the International Conference on Population and Development (ICPD), which explicitly rejected a right to abortion. [2030 Agenda for Sustainable Development, UN Document A/RES/70/1, target 5.6; Programme of Action of the International Conference on Population and Development, UN Document A/CONF.171/13, paragraph 8.25]

Many experts in international law and policy agree that abortion is not a right and that international law “may, and indeed should be used” to protect the life of the unborn. “As a matter of scientific fact a new human life begins at conception,” the San Jose Articles declare. The 2011 document signed by over 30 experts in health and law states that “No matter how an individual member of the species begins his or her life, he or she is, at every stage of development, entitled to recognition of his or her inherent dignity and to protection of his or her inalienable human rights.” The articles further state, “There exists no right to abortion under international law, either by way of treaty obligation or under customary international law. No United Nations treaty can accurately be cited as establishing or recognizing a right to abortion.”

[Forty-four human rights lawyers and advocates, scholars, elected officials, diplomats, and medical and international policy experts signed the San Jose Articles in 2011. The articles have been presented at UN headquarters in New York, and in parliaments across the world. The articles and footnotes are available at: www.sanjosearticles.com]

2. THE FAMILY

Even though the U.S. Supreme Court has read a right to homosexual marriage into the U.S Constitution, the binding obligations enshrined in international treaties do not prescribe homosexual marriage as a human right. Nevertheless, the U.S. government is part of a group of states that routinely promotes homosexual marriage as a human rights issue at the United Nations.

The Universal Declaration of Human Rights and binding international instruments reserve singular protections for the nuclear family in recognition of the family’s irreplaceable role as “natural environment for the growth and well-being of all its members and particularly children.”

It is not accurate to say that international law does not define the family. Article 16 Universal Declaration of Human Rights defines the family as “the natural and fundamental group unit of society” and declares that it is “entitled to protection by society and the State.” These words are repeated across several widely ratified human rights treaties as well as the laws and constitutions of a majority of member states. International law further predicates the complementarity and equal rights of women and men in the context of marriage and family formation. Even if these provisions were not intended as a formal definition of the family, they at least must be understood as a functional definition.

International law establishes that the family is formed when a man and a woman exercise their right to freely “marry and found a family.” States may extend social protections to other types of bonds between individuals, such as friendships or even sentimental attachments between persons of the same sex or other relations. But only the family is “entitled” by international law to protection by society and the state. In this sense, the family is unique, no doubt because of its role and status as “natural and fundamental group unit of society.”

[For a more detailed discussion of this topic in light of other UN treaties and political agreements see the official platform of the coalition Civil Society for the Family may be found at the website www.civilsocietyforthefamily.org.]

3. SEXUAL ORIENTATION AND GENDER IDENTITY

In a recent Supreme Court case (Bostock), a narrow majority decided that “sexual orientation and gender identity” are protected categories in U.S. civil right law. Whether the U.S. government should promote these categories as international human rights categories is a matter altogether different. It is appropriate for the commission to comment on this topic.

All human beings possess the same fundamental human rights by virtue of their inherent dignity and worth according to the Universal Declaration of Human Rights (Preamble and Article 1), but sexual preferences and behaviors are not protected by international human rights law except in the context of the right of men and women to freely marry and found a family. Debates on the use of the terms “sexual orientation” and “gender identity” within the United Nations in reference to individuals who identify as lesbian, gay, bisexual, and transgender (LGBT) are often conducted with the assumption that these notions are clearly defined in science and law. But that is not the case.

No UN human rights treaty includes the words “sexual orientation and gender identity” in any form nor does the context and drafting histories of respective treaties allow a good faith interpretation that includes special protections for sexual preferences or behavior. Unlike freedom of conscience and religion sexual preferences are not protected under international human rights law.

Quite aside from any moral considerations, there is no legal basis for asserting any special protections for sexual preference and behavior outside of the context of the right to marry and found a family, according to the definition of the family outlined above (footnote 4 and 5). International human rights law does not protect unfettered sexual autonomy. The only autonomous sexual choices protected in international law are in the context of the right to freely marry and found a family (UDHR 16, ICCPR 23 and 24, CESCR 10) and the equal right of men and women to decide freely and responsibly on the number and spacing of children (CEDAW 16).

The right to privacy and family life similarly does not protect unfettered sexual autonomy. The UDHR and ICCPR indeed recognize a right to be free of interference in one’s privacy and family 12 (UDHR 17; ICCPR 17). But this cannot be understood to protect unfettered sexual autonomy or any kind of sexual activity between consenting adults At the time that these human rights instruments were negotiated and adopted by UN member states many countries outlawed sodomy, and roughly 70 still do so to this day. Many countries also restricted or penalized other forms of sexual conduct between consenting adults, including incest, adultery, and fornication, and some countries still do today.

It is highly tendentious to argue that either the right to privacy or the prohibition against unjust discrimination in international law presume the protection of sexual preferences and behaviors outside of the context of the right to marry and found a family, as defined in international law. UN political consensus similarly does not recognize these categories. The UN General Assembly has repeatedly turned down possibilities to include this notion in UN resolutions.

Moreover, international law has a clear articulation of the equal dignity and rights of men and women throughout. It is difficult to even situate the notion of “gender identity” in the framework of international human rights law.

[For a more detailed discussion of this topic in light of other UN treaties and political agreements see the official platform of the coalition Civil Society for the Family may be found at the website www.civilsocietyforthefamily.org.]

Conclusion

We urge the commission to consider expressing a cogent legal opinion on these matters to assist the U.S. Secretary of State in crafting U.S. foreign policy that upholds binding international human rights norms. A failure to defend these binding norms will leave a normative vacuum that will be exploited by partisan actors who politicize human rights to obtain their preferred substantive results. It may even tarnish the legacy of the Commission to avoid hotly debated topics. How can the U.S. State Department craft a coherent approach to these hot-button issues when the most respected human rights experts in the United States can’t agree that there is an approach to these topics consistent with both international law and U.S. law?

UN Security Council Mural

Few know that the family is at the heart of the massive oil painting that presides over the Security Council chamber painted by Per Lasson Krohg (1889 – 1965) in 1952. The painting depicts the world rebuilt after World War II around the theme of a phoenix rising from the ashes. There are scenes representing agriculture, science, industry, progress, and a world in celebration as it emerges from the darkness of conflict into a new order of peace and prosperity for all.

What few realize is that the phoenix in this painting is superimposed with the central vignette of the mural representing the family. A man and a woman on their knees and their child at their feet are the central piece of the mural. In other words, the family is the phoenix through which society is regenerated. No doubt Krohg read the Universal Declaration of Human Rights and sought to express the language of Article 16 in the Declaration which recognizes the family as "the natural and fundamental group unit of society."

Organizing Committee