“LGBTQI+ rights are human rights. And our government has a responsibility to defend them, to promote them – here and everywhere,” “- Anthony Blinken, US Secretary of State
Shifting the burden of “human rights” on to the states presents the challenge of responsibility, especially with regards to protecting the basic rights of citizens by their governments. The concept of “Responsibility to Protect” (or “R2P”) which has now become institutionalised in the United Nations system, has firmly established the burden or responsibility of protecting human rights on states and their agents, especially in conflict situations. The R2P doctrine emerged from the global outcry that followed the atrocities that took place during the conflicts in the former Yugoslavia and in Rwanda in the 1990s. It was formally adopted as a new universal principle in the World Summit Outcome Document in 2005.
Articles 138 and 139 are particularly instrumental in the establishment of this doctrine, which necessitated the responsibility of states to assume the duty of protecting their citizens from genocide, war crimes, ethnic cleansing, etc, while it called on the international community to do likewise through diplomatic, humanitarian and other peaceful means. Pillar three of the R2P doctrine is particularly important to note, as it gives the leeway for collective action by way of intervention in a particular country whose state is judged to lack capacity or the ability to prevent mass atrocity crimes from taking place. This principle has also become part of the Constitutive Act of the African Union (Article 4h) adopted in 2000, which allows for outside intervention to prevent or put a stop to mass atrocity crimes from taking place in any African country.
It is now possible and indeed inevitable, that the protection of human rights should become the most important function or role of the modern state. Under this situation, the states must now make compromises and adjust their perceptions of their rights as sovereign entities, by acknowledging limits to their actions and decisions that are likely to infringe on the uninhibited exercise of the rights of individuals as outlined in national statutes and international covenants. Such an acknowledgement naturally translates into acceptance of the fact that states are no longer sovereign in the absolute meaning of the term. Therefore, both in their internal functions and external outlooks and interactions, they must deal with the fact that their sovereignty is circumscribed by the normative conditions that they have agreed to enter into, when accepting to abide by the covenants on human rights.
In as much as this is a highly desirable factor in guaranteeing the rights and protecting the dignity of peoples, it completely removes the other corollary of individual or personal responsibility of the citizens from the equation. The fact that the enjoyment of human rights without the exercise of responsibility on the part of the individual might lead to the disruption of the equilibrium of societies and introduction of errant or deviant tendencies, must be a matter of concern and serious reflection. This condition when allied with the concept of “inalienable rights”, makes it a matter of supreme importance for states to examine the implications of protecting human rights and the balancing of such acts with the concept of state sovereignty. It is here at this conjunction, that issues arise, especially with regards to the application of the principles of liberty, freedom and choice in the way human rights are to be exercised or enjoyed. It is also here that the conflict between human rights and a state’s sovereign rights become so apparent, especially with regards to the internal societal arrangements that a state desires or decides to foster in respect of certain perceptions about what can be considered acceptable or not under “human rights” frameworks.
Since the definition and advocacy of contemporary human rights are mainly generated in the advanced countries of the West to be promoted and enforced largely in the countries of the global South, it becomes a matter of interest to ascertain where the dogma of “human rights” is supposed to lead or to what end it is being so assiduously promoted by the advanced countries in the relatively less developed regions of the world. Granted that all human beings are entitled to dignity and dignified treatment as an inherently acquired right, the other considerations would be how such rights are to be seen in terms of the organisation of society and the arrangements of basic actions that promote common standards of behaviour and conformity with norms, traditions, morality and beliefs.
Where there are conflicts between these later outlooks and the enjoyment of “inalienable rights”, the final decision as to which “rights” should prevail must be taken by some authority that has the legitimacy to decide and enforce its final stance. This amounts to the exercise of sovereign rights by the state in question, which must now compel it to exercise the prerogative to either ignore or agree with the normative consideration of unlimited rights that are supposedly inalienable and unassailable. That also translates into the possibility of surrendering aspects of the sovereign rights of the state in question when it decides that its actions must be subordinated to the considerations of the prevailing moods and perceptions about human rights and freedoms.
Here then, lies the dilemma or conundrum for states in upholding their prerogative and exercising their rights as sovereign entities to decide what goes on within their spatial jurisdiction. Do states have the right to legislate against “human rights” that are considered as contrary to the prevailing moods of the society? Can they uphold the beliefs and traditions of their citizens over and above emerging trends in human rights that go contrary to such beliefs and traditions? Do they have the prerogative to choose and determine what types of “rights” to admit into the corpus of national laws and which ones to restrict or prohibit entirely by juridical means?
These questions become inevitable when it is considered that the push for certain types of “rights” has become a dogma or state policy in the advanced countries of the West, thereby making their promotion a cardinal principle of their foreign policy and other actions of their governments. The United States of America under the current democratic administration, has particularly made the promotion of homosexuality and lesbianism a matter of singular importance and has vowed to achieve the universalisation of these tendencies as a central tenet of the country’s foreign policy. It was in consideration of this that the US ostracised Uganda and imposed sanctions on the country for adopting legislation that criminalised homosexuality and lesbianism, while allowing financial assistance to be directed to nongovernmental organisations that supported these tendencies in Uganda.
The universalisation of this policy became effective in July 2024, when the US government announced that it was redefining its understanding and interpretation of the United Nations Covenant on Civil and Political Rights in such a way that it would admit the recognition of homosexual and lesbian trends as covered by this instrument. This, therefore, renders it mandatory for the United States to mainstream the promotion of these behaviours into its global actions on human rights, including in such innocuous areas as aid, trade, climate action, humanitarian assistance, etc. This means that effective from July 2024, the United States has acknowledged the inclusion of sexual orientation and gender identity (or SOGI) among the “rights” that are covered by this supposedly universal instrument. The fact that the announcement was made by the US’ highest ranking diplomat at the State Department while marking an LGBT pride event is significant in this context.
It is possible and indeed probable, that when discussing or dealing with the United States over any aspects of human rights, other states may be confronted with the suggestion to comply with the latter’s understanding of the applications of the Covenant on Civil and Political Rights under a new interpretation of its intent and objectives. Thus, the idea of “sovereign rights” of the states in question will have to be either withdrawn or affirmed by acquiescence or refusal as the case may be, to the US’ demands to “respect” homosexual and lesbian “rights” through the modification of national legislation and other applicable regimes. The longevity of legal frameworks rest upon their more restricted or conservative interpretation which renders the possibility of arbitrary alterations difficult or impossible. Where elasticity is introduced and expedience is admitted into the interpretation of the meanings of legal provisions, it becomes virtually untenable to assume that their application can be upheld over time or become established in accordance with practice and tradition.
This same perception also applies to the provisions of international law and treaties. The arbitrary or intuitive interpretation of the provisions of a treaty according to momentary expedience of policy or perception, will undoubtedly undermine its sanctity and the durability of its tangible values. Thus, the action by the United States in giving a new and radical interpretation to the UN Covenant on Civil and Political Rights, will harm rather than advance the significance of this treaty which the US ratified as far back as 1991 and upon which it rests its focus on engaging other countries in the human rights arena. The unilateral introduction of peculiar attributes to this treaty no longer makes it universal but rather, it reduces is universality and renders it open or susceptible to over-cautious approach by more rational governments who view its extent and scope from a narrower perspective.
To understand this world view which has now redefined the concept of morality, we must appreciate the trends that are now prevailing in bringing about a new understanding of the concept of the family. This concept of the family (and its sanctity) has been the main target of action by the advocates of the “new rights” in terms of obtaining its redefinition through the imposition of norms and perceptions that are not universal in their provenance or acceptability, or for that matter, of equal importance as to determine what types of “rights” to admit into the corpus of national laws and which ones to restrict or prohibit entirely.
