Supported under Multi-country South Asia Global Fund HIV Programme (MSA), this article is part of “Defending the Rights of LGBT Individuals in South Asia: Stories of Survival and Justice” series – a documentation of relevant international and national human rights instruments, principles and legal obligations of the South Asian countries, as well as their good practice, in addressing the rights violation faced by South Asian LGBT persons.
The over-arching legal framework that governs nation states to ensure and uphold human rights is found in two key norm-setting international agreements – the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
In the global arena, both these documents are the basis on which countries commit to guaranteeing the human rights of people living within their territories. This is true of all the South Asian countries covered for the purposes of this assignment, except Bhutan, which has not signed these agreements.
Many core human rights are contained in the ICCPR, which are relevant to SOGI-related concerns and issues. These include the rights to physical integrity, including the right to life and freedom from torture; personal security including freedom from arbitrary arrest and detention; non-discrimination, and the right to equality; liberty, including the freedoms of movement, speech, association and assembly, and the right to privacy; and procedural fairness in law, including a fair and impartial trial.
Similar key human rights are contained in the ICESCR. This covenant requires that rights be recognized “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status“. The guarantee of these rights is towards “the full development of the human personality and the sense of its dignity.” These include the rights to health, education, social security, work, and an adequate standard of living (including adequate food, clothing and housing).
An international treaty focused on the human rights of LGBTQ people does not exist. Yet, treaties such the ICCPR and ICESCR provide the substance of these rights, and their interpretation in the context of LGBTQ lives has facilitated the articulation of these rights in relation to SOGI through the Yogyakarta Principles.
As mentioned earlier, other than Bhutan, all other South Asian countries are signatory to the ICCPR and ICESCR, thereby obliging them to ensure and uphold these human rights for all their people. Yet, the domestic application of these international conventions differs across countries. Nepal is unique in that regard – the Nepal Treaty Act provides that once Nepal has ratified an international treaty through parliament, a conflict between the treaty and current domestic law will make the latter invalid. Contrastingly, in other South Asian countries international conventions are not automatically applicable on being ratified by legislatures. Yet, their signing by states importantly signifies their intent and commitment to human rights. In some cases countries have enacted specific legislation related to the international human rights conventions they have signed, such as India’s Protection of Human Rights Act, 1993, which was the basis to establish the National Human Rights Commission. Further, national courts have relied on these conventions to recognize or expand the understanding of human rights in their judgments.
Most recently, South Asian nations have committed to achieve the Sustainable Development Goals, many of which resonate with the human rights principles enshrined in the ICCPR and the ICESCR.
Click below to read the other parts of the series.
+ Part 1: Introduction
+ Part 4: Actualising Human Rights in South Asia