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Post/Colonial Queer Globalisation and International Human Rights: Images of LGBT Rights

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Post/Colonial Queer Globalisation and International Human Rights: Images of LGBT Rights 98 JINDAL GLOBAL LAW REVIEW JGLR / Vol. 4, Issue 2 VOLUME 4, ISSUE 2, NOVEMBER 2013 Post/Colonial Queer Globalisation and International Human Rights: Images of LGBT Rights Aeyal Gross* In recent years, literature has pointed to the role of pictorial images in human rights advocacy. While this literature has focused mostly on images which portray the violations of human rights, this article considers images of a different type, that are used in the context of LGBT rights advocacy, arguably portraying utopian visions of human rights. Through a reading of two images – the first portraying Dana International, the transgender pop singer who represented Israel in the Eurovision Song Contest and won, and the second portraying what looks like a same-sex couple who have got married – the article examines issues that come up in international LGBT rights advocacy, focusing on questions of the globalisation of identities, the recognition of family life and on the (post)colonial context in which rights claims are being made. The tension between the texts superimposed upon the images and the images themselves serve to expose existing contradictions within LGBT rights advocacy as practiced inter alia through the use of these images. Finally, the ‘Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’ are examined and critically engaged with in light of the tensions in international LGBT rights advocacy discussed through a reading of the images. I. INTRODUCTION hile the editors of this volume talk of the 2000s as the “Decade Wof Sex Rights,”1 its precursor can be traced to the 1990s, when, through a set of almost simultaneous developments, sexuality started carving a place for itself in international human rights discourse. In 1995, two seminal books on the topic were published, entitled Sexual Orientation: A Human Right2 and Sexual Orientation and Human Rights.3 This was preceded * Professor, Faculty of Law, Tel Aviv University, Israel <[email protected]>. I am grateful to Yehuda Goor for his excellent research assistance. Special thanks to Annelise Riles who was the first to suggest that I write on Dana International and the question of representation, and to Amalia Ziv for the inspiration and suggestions. I also benefited from conversations with Raz Yosef and Zvi Triger who offered insightful comments. Finally thanks to Ariella Azoulay, Daniel Drenger and Ruthie Ginsburg for their helpful suggestions. 1. Special Issue Theme Note, 4 (1) JINDAL GLOBAL L. REV. (2012). 2. ERIC HEINZE, SEXUAL ORIENTATION – A HUMAN RIGHT: AN ESSAY ON INTERNATIONAL HUMAN RIGHTS LAW (1995). 3. ROBERT WINTEMUTE, SEXUAL ORIENTATION AND HUMAN RIGHTS: THE UNITED STATES CONSTITUTION, THE EUROPEAN CONVENTION, AND THE CANADIAN CHARTER (1995). ISSN 0975-2498 © O.P. JINDAL GLOBAL UNIVERSITY 2013 / Post/Colonial Queer Globalisation 99 in 1994 by the U.N. Human Rights Committee’s first decision on sexual orientation, holding that a statute enacted in Tasmania, Australia, criminalising various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, was in violation of the International Covenant on Civil and Political Rights and, moreover, that discrimination based on sexual orientation is prohibited under the Covenant.4 In the same year, Amnesty International became the first major international human rights NGO to publish a report on sexual orientation, significantly titled Breaking the Silence: Human Rights Violations Based on Sexual Orientation.5 Other NGOs, both general and specialised, subsequently became active in this area. Thus it seemed only natural in 1998 for Amnesty to launch a campaign bearing the slogan ‘Gay rights are human rights’, echoing the women’s rights movement slogan ‘Women’s rights are human rights’. The gay rights slogan seems to entail a uniform conception of both sexuality and rights, an understanding that both ‘gay’ and ‘rights’ are or should be identically conceived everywhere. Notably, this slogan was voiced at a time when the singularity of these very concepts was being questioned. The invocation of ‘gay’ as a universal phenomenon happened at a time when queer theory6 was challenging our understanding of this identity as transcultural and transhistorical, and pointing to the fact that sexuality may mean different things in different societies and different periods.7 But the slogan not only assumes the universality 4. U.N. H.R.C., Views of the Human Rights Committee in Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/ C/50/D/488/1992 (1994) (hereinafter “Toonen v. Austra- lia”). 5. AMNESTY INTERNATIONAL, BREAKING THE SILENCE: HUMAN RIGHTS VIOLATIONS BASED ON SEXUAL ORIENTATION (1994). 6. For an introduction to queer theory, see ANNAMARIE JAGOSE, QUEER THEORY: AN INTRODUCTION (1996); For an introduction to queer legal theory, see CARL STYCHIN, LAW’S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE 140-56 (1995). 7. On the historical context of modern gay identity, see DAVID HALPERIN, ONE HUNDRED YEARS OF HOMOSEXUALITY (1990); On ‘gay’ identity as a product of globalisation, see Dennis Altman, Global Gaze/Global Gays, 3 (4) GLQ: A J. OF LESBIAN & GAY STUD. 417-36 (1997); On the complex interaction between local and global identities in this context, see Lisa Rofel, Qualities of Desire: Imagining Gay Identities in China, 5 (4) GLQ: A J. OF LESBIAN & GAY STUD. 451-74 (1999); See also Dennis Altman, Rupture or Continuity?: The Internationalization of Gay Identities, in POST-COLONIAL, QUEER: THEORETICAL INTERSECTIONS 19 (J. C. Hawley ed., 2001); For a discussion of the complexities of ‘queer globalisation’, see A. Cruz-Malavé & M. F. Manalansan IV, Dissident Sexualities/Alternative Globalisms, in QUEER GLOBALIZATION: CITIZENSHIP AND THE AFTERLIFE OF COLONIALISM 1-10 (A. Cruz-Malavé & M. F. Manalansan IV eds., 2002); JON BINNIE, THE GLOBALIZATION OF SEXUALITY 32-49 (2004); For some accounts of forms of sexuality that differ from modern Western forms, see for example, RITUALS OF MANHOOD: MALE INITIATION IN PAPUA NEW GUINEA (G. H. Herdt ed., 1982); T. WATANABE & J. IWATA, THE LOVE OF THE SAMURAI: A THOUSAND YEARS OF JAPANESE HOMOSEXUALITY (1989). 100 JGLR / Vol. 4, Issue 2 of so-called gayness but also of rights.8 The axiom that rights are the same everywhere has been called into doubt by approaches suggesting a need to examine the cultural contexts in which rights claims are made.9 Moreover, the slogan embodies a resort to rights as the ultimate emancipatory project when the limitations of international human rights as tools of emancipation have been made clear from many critical perspectives.10 Finally, the slogan ‘gay rights are human rights’ entails a perception of the universality of ‘human’ itself; it requires us to think not only of the globalised ‘gay’ and globalised ‘rights’, but also of the globalised ‘human’. It was through the 2000s, and particularly in 2010, that the development described above started to take the form of global statements and declarations, some of them at the U.N. level: such as the 2010 Resolution on Extrajudicial, Summary or Arbitrary Executions, adopted at the U.N. General Assembly which addressed killings of persons based on their sexual orientation;11 and the 2011 Resolution of the U.N. Human Rights Council on Human Rights, Sexual Orientation and Gender Identity which expressed grave concern at acts of violence committed against individuals because of their sexual orientation and gender identity.12 The latter Resolution has led to a report by the U.N. High Commissioner on Human Rights titled Discriminatory Law and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity, published in December 2011.13 The adoption in March 2007 of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender 8. See Carl Stychin, Same-Sex Sexualities and the Globalization of Human Rights Discourse, 49 MCGILL L. J. 951, 953-961 (2004). 9. For a collection of sources on the cultural relativism and human rights debate, see HENRY STEINER, PHILIP ALSTON & RYAN GOODMAN, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 517-665 (3rd ed., 2007). 10. See, e.g., DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 3-35 (2004); MAKAU MUTUA, HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE (2008). 11. U.N.G.A., Resolution adopted by the General Assembly on Extrajudicial, Summary or Arbi- trary Executions, 21 December 2010, U.N. Doc. A/Res/65/208. 12. U.N.G.A., Human Rights Council, Human rights, sexual orientation and gender identity, 15 June 2011, U.N. Doc. A/HRC/17/L.9/Rev.1.. 13. U.N.G.A., Human Rights Council, Report of the U.N. High Commissioner for Human Rights, on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, Nov. 17, 2011, U.N. Doc. A/HRC/19/41. The U.N. Secretary General addressed the issue in a statement to the U.N. Human Rights Council on March 7 2012 available at http://www.youtube.com/watch?v=qtxU9iOx348. In May of the same year, the U.N. High Commissioner for Human Rights issued a statement honouring the International Day Against Homophobia, available at http://www.youtube.com/watch?v=5-_ kzl-_mrg&feature=youtu.be. For a discussion of the rise of the global politics of LGBT rights, see Kelly Kollman & Matthew Waites, The Global Politics of Lesbian, Gay, Bisexual and Transgender Human Rights: An Introduction, 15 CONTEMP. POL. 1 (2009). 2013 / Post/Colonial Queer Globalisation 101 Identity,14 although outside of the U.N. framework, was an important stage in the process described here. Drafted by an international panel of experts in international human rights law and sexual orientation and gender identity, this comprehensive document deals with twenty-eight human rights examined in the context of sexual orientation and gender identity.
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