Transnational Advocacy Networks and Human Rights Law

Emergence and Framing of Gender Identity and Sexual Orientation

Giulia Dondoli

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429760358
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book asks the fundamental question of how new human rights issues emerge in the human rights debate. To answer this, the book focuses on nongovernmental organizations (NGOs) and on the case study of LGBTI (lesbian, gay, bisexual, transgender and intersex) rights.

The work argues that the way in which NGOs decide their advocacy, conceptualise human rights violations and strategically present legal analysis to advance LGBTI human rights shapes the human rights debate. To demonstrate this, the book analyses three data sets: NGO written statements submitted to the United Nations Human Rights Council, NGO oral statements delivered during the Universal Periodic Review and 36 semi-structured interviews with NGO staff. Data are analysed with a combination of quantitative and qualitative approaches to discover what issues are most important for LGBTI networks (issue emergence) and how these issues are framed (issue framing). Along with NGO efficiency in lobbying for the emergence of new human rights standards, the book inevitably discusses important questions related to NGOs' accountability and democratic legitimacy. The book thus asks whether the right to marry is important for LGBTI advocates working transnationally, because this right is particularly controversial among activists and LGBTI communities, especially in non-Western contexts.

1 Introduction

Introduction: Joslin v New Zealand

In the 1990s, a group of activists from New Zealand mobilised to ask domestic courts to recognise the right of a person to marry a same-sex spouse as a consequence of the recognition of their “full and equal treatment before the law”.¹ In 1998, the New Zealand Court of Appeal decided in Quilter v Attorney-General that the exclusion of same-sex couples from marriage was not an unlawful discrimination because the then Marriage Act 1955 forbade same-sex marriage.²

The following year, applicants in the domestic case – Juliet Joslin and Jennifer Rowan – and their legal advisor brought their claims before the United Nations Human Rights Committee (HR Comm), in Joslin and Others v New Zealand (‘Joslin’).³ Joslin, Rowan and their legal advisor planned to form an NGO (nongovernmental organization). The three of them involved a few more lesbian, gay and bisexual (LGB) people, and they set their first meeting. I interviewed the legal advisor for Joslin and they remember that, during that first meeting, it was suggested they consult with New Zealand LGB communities to see if the right to marry was what they wanted. A concern was that some LGB people might see the marriage institution as an archaic, conservative and heteronormative institution.⁴ However, consulting with LGB communities would have been costly, while the core group wanted to focus on what they believed was right: marriage equality.

Therefore, Joslin, Rowan and their legal advisor dropped the idea of creating an official NGO, yet continue their advocacy work as a small informal group with some people occasionally involved for fundraising purposes. In the interviewee’s opinion, a small group helped them to set their vision, goals and standards.⁵

Before the HR Council, the applicants and their legal advisor argued that the expression “men and women” in Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) means that men as a group and women as a group have the right to marry, not necessarily that a man may marry a woman and vice versa.⁶ The HR Comm did not accept such a view and said that the wording of “men and women” means different sex couples,⁷ therefore confirming that the right to marry, as enshrined in Article 23, refers only to different sex couples.⁸

The interviewee reports that even though they were uncertain as to whether the Joslin communication would have been a success, the group still engaged in such strategic litigation at the HR Comm to raise political awareness on marriage equality on the national level.⁹ As one NGO scholar, Hodson, argues, activists “will not necessarily perceive a lost case as a failure if, for example, it contributes to social change through public debate or if it highlights ‘how ridiculous the law is’ ”.¹⁰ The advocacy around Joslin is a good example of domestic activists reaching out to an international organization to keep the momentum of the marriage equality debate. Despite the legal defeats, the use of the national courts and the HR Comm created a broader frame of advocacy that eventually led to the legalisation of marriage equality in New Zealand. Civil unions were legalised in 2004,¹¹ then marriage equality in 2013.¹²

I chose to start with this brief story of the battle for marriage and family equality in New Zealand because it raises two important themes for this book. First, when activists and NGOs work at the local level, and when they feel they have exhausted the channel to lobby their governments, they reach out to international allies, in this case, the HR Comm, to pressure their government from above and from below.¹³ Such international advocacy action can produce consequences both in the domestic arena and in international human rights law. In the New Zealand case, the activists did not set up an NGO because they believed that maintaining a small decision-making core group would have been beneficial for setting their goals. This leads to the second theme.

The second theme raised by this account is that activists might have different views on issues and different advocacy agendas. Because activists and NGOs can shape human rights discourse with their advocacy actions, it is important to understand how these NGOs choose advocacy issues and how they decide how to strategically frame such issues as human rights claims.¹⁴ Understanding which issues to advocate for, however, is not always straightforward. The Joslin example highlights that marriage and family equality are controversial topics, and lesbian, gay, bisexual, transgender and intersex (LGBTI) activists do not always agree on these matters. Sometimes a compromise can be found, yet as seen in Joslin, sometimes it cannot.

This book develops the themes of transnational advocacy and issue emergence and framing. The book researches the way in which the NGOs, as part of transnational advocacy networks (TANs), create meaning, shape ideas, conceptualise human rights violations and present their legal analysis to advance LGBTI people’s rights. Understanding what issues are advocated by NGOs, and how these issues are framed, helps clarify why some issues emerge and consolidate in the international human rights law debate, and subsequently they become human rights standards. Before formulating the research questions and laying down the arguments of this research, the next section provides some context and definitions for the key topics addressed in the book.

Context, definitions and caveat

This book investigates LGBTI TANs advocacy at the UN, and to do so it analyses three bodies of data: (i) NGOs’ written statements submitted to the HR Council, (ii) NGOs’ oral statements delivered during the Universal Periodic Review (UPR) process and (iii) interviews with NGO staff members. While a much broader discussion of the methodology and the limitations of this study is presented in the appendix of this book,¹⁵ this section provides a brief legal, historical and contextual background for the analysis. Many scholars discuss same-sex sexual attraction, transgenderism and transvestitism, and intersexuality in history,¹⁶in religion,¹⁷ and in the law.¹⁸ This section does not aim to compete with such works; instead, it aims to present the key concepts for the book.

Intersex status and a note on the use of acronyms

The language about gender and sexuality varies over time, across places and among cultures. Moreover, there is a plethora of acronyms used by both scholars and activists, sometimes referred to as the alphabet soup.¹⁹ Because this book focuses on international human rights law, I use the acronyms LGBTI and SOGII (as in sexual orientation, gender identity and intersex status), whose uses are consolidated within the work of the UN and in transnational advocacy.

However, some NGOs addressed in this study, such as International Gay and Lesbian Human Rights Commission (ILGHRC – now OutRight Action International, hereafter ‘OutRight’), give minimal attention to intersex issues,²⁰ and some intersex activists do not feel part of the LGBT movement and believe that alliance with the disability movement better serves their cause.²¹ Moreover, intersex is a rising issue at the UN and many documents analysed in this book, especially the older ones, do not mention intersexuality. Therefore, when I analyse NGO and UN documents, I sometimes use ‘SOGI’ and ‘LGBT’, therefore lacking the ‘I’ because I follow what terminology NGOs and the UN use, which occasionally does not mention intersex people.

Human rights: between hard- and soft-law

SOGII are not mentioned in the Universal Declaration of Human Rights, in the ICCPR or other UN covenants and conventions. LGBTI human rights have evolved through resolutions, recommendations, international adjudications and concluding observations. Many states question that LGBTI rights provisions are even human rights law. For example, in February 2016, at the occasion of unveiling new stamps at the UN to promote the Free & Equal campaign,²² the chairman of the African Group wrote a letter to the Secretary General of the UN asking for the event to be cancelled because the African Group “strongly rejected any attempt to undermine the international human rights system by seeking to impose concepts … that falls outside the internationally agreed human rights legal framework”.²³

One of the reasons for this resistance is because the documents that enshrine LGBTI human rights protection are ‘soft-law’ instruments. Soft-law is often considered non-law, or less than hard-law because states are less inclined to comply with them. Indeed, hard-law norms, like international treaties and international custom, are binding norms,²⁴ while soft-law is defined as “nonbinding norms that set forth non-obligatory but highly recommended standards of state conduct”,²⁵ such as HR Council resolutions; and as “those nonbinding rules or instruments that interpret or inform our understanding of binding legal rules”,²⁶ such as HR Comm’s views and general comments.

Some authors question the effectiveness of the human rights treaties (hard-law) because states are highly internationally pressured to ratify human rights treaties, but since the violation of such treaties...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of documents
• List of figures
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Between friends and foes: transnational advocacy networks, issue emergence and issue framing
• 3 LGBTI transnational advocacy networks: internetwork relations and horizontal networking
• 4 The broader political context: how states and other NGOs influence LGBTI NGOs’ issue framing
• 5 “With great power comes great responsibility”: the advocacy agenda of LGBTI transnational advocacy networks
• 6 Conclusion
• Appendices
• Appendix 1 Methodology
• Appendix 2 NGOs’ written statements submitted to the Human Rights Council
• Appendix 3 Interviewees
• Appendix 4 United Nations vote results
• Index