Glenroy Murray | Of human rights and wrongs
Sexuality and sexual health continue to be controversial discussion points within Jamaican advocacy. Oftentimes, battle lines are drawn on whether the age of consent should be raised, whether adolescents should be criminalised for consensual sexual intercourse with other adolescents, whether abortion or sex work should be decriminalised, and whether adolescents should be allowed to access contraceptives and whether same-sex intimacy should be decriminalised.
It is important to ground this conversation within human rights given Jamaica's ratified obligations at the UN level. Jamaica has agreed that it will do what is necessary to ensure that human rights are respected, protected and promoted locally. Therefore, we have to look at what is the full extent of those human-rights obligations that we oftentimes grapple with.
I first begin with statements I have heard in multiple places regarding this topic that oftentimes act as a barrier to advancing the discussion around sexual rights and the rights of gender and sexual minorities. The statements are as follows:
1. There is no right to sexual intercourse.
2. There is no consensus on rights to sexuality or gender/sexual diversity.
3. We do not have an unconditional right to health.
4. Minors will not have the same rights as adults.
5. There is no international standard which says there is a right to abortion.
These statements will set the context for our discussion. Let us first establish the basics. Jamaica joined the United Nations immediately following its independence, and recent research by Dr Steven Jensen has uncovered that Jamaica was a champion for human rights when it entered. Jamaica pushed for greater focus on human rights within the United Nations General Assembly. Importantly, Jamaica was a leading voice for the development of national human-rights institutions at the state level to ensure the effective protection and promotion of human rights.
Jamaica was never a passive participant in these international conversations around human rights. Rather, Jamaica actively shaped what the various treaties that they ratified looked like. They voluntarily ratified those treaties and voluntarily accepted that they would be monitored by what the UN calls 'treaty bodies', which is the group of experts responsible for ensuring that a particular treaty is implemented. For example, article 40 of the International Covenant on Civil and Political Rights (which Jamaica ratified in 1975) requires that governments submit to the Human Rights Committee (the treaty body created by this treaty) "reports on the measures they have adopted that give effect to the rights recognised herein and on the progress made in the enjoyment of those rights".
In other words, Jamaica and other countries must show this group of experts whether they are securing the rights guaranteed. Jamaica voluntarily agreed that this body will be the authority to decide whether or not they are protecting and promoting human rights.
Similar provisions exist in all human-rights treaties ratified by Jamaica and, therefore, to understand the full extent of rights protected at the UN level, we not only have to look at the treaties themselves, but the concluding observations that the various treaty bodies make after states submit reports to them, as well as their general comments which expound on human rights.
Now to address the statements made. Human rights represent all things to which we are entitled simply because we are human beings. As a result, the Government can't, willy-nilly, take away these things, nor can anyone else. If they do so, they are violating your right.
That being said, no right is unconditional or absolute. The Government can infringe on your rights from time to time, but only where it is necessary to achieve a public good, and they can't be excessive with it. Human rights limit what a government can do to and concerning us. Therefore, statement number 3 is correct. There is no unconditional right to health, as there is no unconditional human right at all. All rights have limits but those limits must be justifiable.
On the matter of sexual intercourse, there is no explicitly guaranteed right to sexual intercourse in the same way there is no explicitly guaranteed right to cook, drive or read. The Universal Declaration of Human Rights has 30 provisions regarding human rights and could not list every facet of human behaviour. Instead, there were broad guarantees that cover widely all the things that human beings ought to be able to do freely. While there is no right to sexual intercourse, there is a right to privacy, a right to equality and a right to health.
General Comment No. 14 of the Committee on Economic Social and Cultural Rights (responsible for implementing the International Covenant on Economic Social & Cultural Rights) outlines: "The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference."
RIGHT TO SEXUAL AND REPRODUCTIVE HEALTH
The right to control one's body evidently includes a right to have sexual intercourse. The general comment then goes on to outline the State's responsibility to provide sexual and reproductive health services that are accessible to women and adolescents. The committee elaborates on the issue in general comment No. 22 on sexual and reproductive health in 2016. The committee outlines:
"The right to sexual and reproductive health entails a set of freedoms and entitlements. The freedoms include the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one's body and sexual and reproductive health."
The General Comment goes further to link the availability of abortion services and access to sexual and reproductive health information by adolescents to the right to sexual and reproductive health. Therefore, while the governments of the world may still be "searching for consensus" on respecting sexual and reproductive health and rights, the experts they put in charge of ensuring that human rights were being protected have definitively stated that sexual rights exist. It only harms us as a nation to say things like, "There is no right to sexual intercourse," because that does not change the fact that the government cannot willy-nilly decide that you cannot have sexual intercourse without providing justification.
Finally, on the point of sexual minorities, when the Human Rights Committee decided that sexual orientation discrimination is prohibited by the ICCPR and that all the rights in that treaty applied to LGBT persons, it became a foregone conclusion that LGBT persons deserve equality treatment under the law.
It does us no justice to trifle over the provisions of the 1966 ICCPR and pretend as if they are set in stone. Rather, we should look at what the Human Rights Committee and other human-rights treaty bodies have consistently asked our Government to do to be in conformity with the human rights standard set in the treaties. This includes making sexual and reproductive health information accessible to adolescents and youth, protecting the rights of sexual minorities, and decriminalising abortion.