Natural and

Un-Natural Law
By Jakob Cornides, J.D.

Legal Studies Series • N umber Two

Law Group
A Program of Catholic Family & Human Rights Institute
Natural and
Un-Natural Law
By Jakob Cornides, J.D.

Legal Studies Series • N umber Two

A Program of Catholic Family & Human Rights Institute
 © 2010
Catholic Family and Human Rights Institute
866 United Nations Plaza, Suite 495
New York, New York 10017
Table of Contents

Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Abstract.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part I: Normative and Jurisprudential Developments.. . . . . . . . . . . . . . . . . 3

Part II: Reality Check: The Somewhat Disappointing

Achievements of “Human Rights Advocacy”. . . . . . . . . . . . . . . . . . . . . . . . . 6
• Abortion as a Human Right: Nowhere Out of Africa. . . . . . . . . . . . . . . . . 6
• Homosexual Relations: Considered a Crime in a Majority
of Countries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Part III: Emerging Consensus?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

• Consensus on Conferences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
• Consensus Among “Experts”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
• Vox Populi?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Part IV: Abortion, Homosexuality and the Natural Law of Morality. . . 24

• The Elitism of “Human Rights Experts”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
• Dismissing “Fetal Claims to the Right to Life”.. . . . . . . . . . . . . . . . . . . . . 27
• A Novel Doctrine on Sex, Marriage, and Families. . . . . . . . . . . . . . . . . . 33
• Anthropology Re-invented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
• Is Homosexuality Normal?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
• Is Homosexuality Equal?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
• Concluding Remarks on the Yogyakarta Principals.. . . . . . . . . . 44

Conclusion — “Rights” Replaced Natural Law: A Lawyers’ Revolt

Against Reality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
List of Acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Biography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Foreword

A mere twenty years separates 1948 from 1968. Yet a chasm exists
between the year of the Universal Declaration of Human Rights of 1948
and that year of great social revolution — an annus horriblilis whose
repercussions are still felt across Western society.

The language of human rights in the Universal Declaration was

grounded in something objective, a truth based in natural law. Its principle
drafters — men such as the great neo-Thomist thinker Jacques Maritain
and the Maronite Catholic Charles Malik — were schooled in that
tradition, which is reflected in provisions such as Article 16, proclaiming
that the family is “the fundamental group unit of society.”

That tradition, if not close to becoming extinct, is certainly endangered,

as proponents of new theories of “human rights” emerge and dominate the
discourse at the United Nations, in the capitals of aid-dispensing countries
of the global North and in the academic journals. There is a proliferation
of rights — “reproductive rights,” the right to non-discrimination based
on undefined and malleable categories of “sexual orientation and gender,”
the right to die — all of which threaten to crowd out long-established
rights, such as the rights of conscience, free speech and religious free
exercise when the old and the new rights (inevitably) come into conflict.
What happens when the religious minister speaks out on the immorality
of homosexual conduct, or the doctor refuses to perform an abortion on
grounds of conscience?

And what grounds these newly-minted rights? Is it anything objective? Or

are these rights to be imposed on dissenting individuals, and even dissenting
cultures — “unenlightened” nations that believe that the unborn should be
protected from the moment of conception, or that believe that homosexual
conduct is detrimental to individual and civilizational flourishing and the
passing on of one’s cultural patrimony from one generation to the next, and
therefore should be discouraged (or at least not enabled) in law?

International Organizations Law Group • Legal Studies Series • Number Two i

 In his address to the United Nations General Assembly in April 2008,
Pope Benedict XVI, noted that removing human rights from their objective,
natural law basis, “would mean restricting their range and yielding to a
relativistic conception, according to which the meaning and interpretation
of rights could vary and their universality would be denied in the name of
different cultural, political, social and even religious outlooks. This great
variety of viewpoints must not be allowed to obscure the fact that not only
rights are universal, but so too is the human person, the subject of those
rights.”

It is with this in mind that we present to you an essay of, I believe,

profound clarity, the first in a series of lengthy papers on legal topics from
the International Organizations Law Group, the public interest law arm of
the Catholic Family and Human Rights Institute.

Jakob Cornides is a thinker, based in Europe, whose writing deserves

wider recognition, not only from American audiences but also those
throughout the world. The monograph that follows — “Natural and Un-
Natural Law” — sets forth that clash between the ideals of 1948 and the
counter-principles asserted by the generation of 1968. He exposes the
shoddy thinking of those who seek to establish a right to abortion — the
ultimate exercise of raw, bloody power over the helpless and powerless.
He brings to light the incipient totalitarianism and anti-democratic
elitism of those roughly thirty United Nations and activist human rights
“experts” who crafted a manifesto entitled the “Yogyakarta Principles.” The
document purports to propound “binding” human rights norms that are
to govern social legislation in the area of “sexual orientation and gender
identity,” despite such norms never having been consented to by sovereign
states.

After reading “Natural and Un-Natural Law,” the reader is left

questioning whether the human rights project begun in 1948 can continue,
or whether it will collapse from its accreted weight. Indeed, one is left
with a sobering thought — if rights are simply commodities handed out

ii International Organizations Law Group • Legal Studies Series • Number Two

and enforced by the positivist state, which defines who is a “person” and
entitled to be a rights-bearer, then such rights so granted by the state can
also be taken away by the state. Rights are either grounded in something
objective or they are changeable and ultimately illusory.

If the human rights tradition is to be saved from those who would

ultimately destroy it, then works such as “Natural and Un-Natural Law,”
which points to a Truth whose name some dare no longer speak, are an
essential part of that reclamation project.

Piero A. Tozzi
Director
International Organizations Law Group

International Organizations Law Group • Legal Studies Series • Number Two iii
iv International Organizations Law Group • Legal Studies Series • Number Two
Abstract

On the basis of two recent publications, this paper examines how

human rights-related language is used by advocacy groups to promote
their particular political agendas. A key element in this strategy is to assert
“consensus” around these agendas, be it of a political or academic nature,
which remains to be implemented through legislation and administrative
practice. A closer examination casts doubt on this “consensus” with regard to
its content, as well as the procedure in which it is reached. This raises wider
questions with regard to the manner in which human rights are “made”
nowadays: the “experts” and advocacy groups that have gained control over
much of the academic and political discourse on human rights, refusing to
acknowledge an inalienable and inalterable Natural Law, underpin their
campaigning with sentiments, rather than with rational arguments.

International Organizations Law Group • Legal Studies Series • Number Two v

vi International Organizations Law Group • Legal Studies Series • Number Two
Introduction
The February 2008 issue of the Human Rights Law Review contains
two articles of importance in the conversation about homosexual and
abortion “rights:” “Sexual Orientation, Gender Identity and International
Human Rights Law: Contextualizing the Yogyakarta Principles,” by Michael
O’Flaherty and John Fisher;1 and “Abortion as a Human Right — Interna-
tional and Regional Standards,” by Christina Zampas and Jaime M. Gher.2

According to its abstract, the O’Flaherty/Fisher article claims to be “the

first published critical commentary” on the “Yogyakarta Principles”3 (YP), a
set of principles formulated in 2007 by “a group of human rights experts” in
order to provide “a coherent and comprehensive identification of the obliga-
tion of States to respect, protect and fulfill the human rights of all persons
regardless of their sexual orientation or gender identity.” The authors claim
“it is likely that they (the YP) will play a significant role within advocacy
efforts and, whether directly or otherwise, in normative and jurisprudential
development.”4 It is essential to note that O’Flaherty is one of the 29 human
rights activists and United Nations staff who composed the YP.

The Zampas/Gher article “focuses on the striking expansion of interna-

tional and regional human rights standards and jurisprudence that support
women’s human right to abortion. It summarizes pertinent developments
within the United Nations (UN), European, Inter-American and African

1 Michael O’Flaherty and John Fisher, “Sexual Orientation, Gender Identity and Interna-
tional Human Rights Law: Contextualising the Yogyakarta Principles,” Human Rights Law
Review 8:2 (2008): 207-248.
2 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right — International and
Regional Standards,” Human Rights Law Review 8:2 (2008): 249-294.
3 The full text of the Yogyakarta Principles is available at http://www.yogyakartaprinciples.
org (accessed December 15, 2009).
4 Michael O’Flaherty and John Fisher, “Sexual Orientation,” 207.

International Organizations Law Group • Legal Studies Series • Number Two 1

Introduction

human rights systems regarding abortion, as they relate to women’s rights

to life and health, in situations of rape, incest or fetal impairment, and for
abortion based on social and economic reasons and on request.”5

Both articles have in common that they deal with what could be
described as the emergence of “new human rights” which, not being gen-
erally recognized
What was once considered a crime is to be as such, in fact
transformed into a right, and what was once stand in radical
contradiction to
considered justice, into a human right violation. “traditional” ethi-
cal and cultural
values; and, con-
sequently, are also in conflict with the existing domestic legislation and
jurisprudence in most countries. They bespeak a “fourth generation” of
human rights which, unlike the second and third generations, do not build
on the first generation of “civil liberties” and complement them with social
and economic entitlements, but are of a truly revolutionary nature: what
was once considered a crime is to be transformed into a right, and what was
once considered justice, into a human rights violation.
5 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 249.

2 International Organizations Law Group • Legal Studies Series • Number Two

Part I: Normative and
Jurisprudential Developments
It seems no injustice to the authors of both articles in saying that they
are themselves actively promoting, if not anticipating, the “normative and
jurisprudential developments” upon which they comment. Therefore, their
views must be considered not as those of disinterested observers, but of
partisan stakeholders. Prof. Michael O’Flaherty is himself one of the co-
authors of the YP6 (how then can he claim to offer a “critical commentary”
on them?), while John Fisher is “Co-Director of ARC International, a non-
governmental organization [NGO] that advances recognition of sexual
orientation and gender identity issues at the international level.” 7 Likewise,
Christina Zampas and Jaime M. Gher are both employed at the Center for
Reproductive Rights (CRR), an international lobby group militating for
the international recognition of abortion as a human right.8 Against this

6 The experts who drafted the YP are listed in footnote 136 of the O’Flaherty/Fisher
article. Prof. O’Flaherty is one of them and, in fact, appears to have played a key role. As one
recital of the text specifically mentions on page 7, “Professor Michael O’Flaherty has made
immense contributions to the drafting and revision of the Yogyakarta Principles. His com-
mitment and tireless efforts have been critical to the successful outcome of the process.”
7 Cf. the biography notice published with the O’Flaherty/Fisher article.
8 The Center for Reproductive Rights describes itself as a “nonprofit legal advocacy organiza-
tion dedicated to promoting and defending women’s reproductive rights worldwide.” Accord-
ing to CRR, these reproductive rights include “the right to safe, accessible and legal abortion,”
which it seeks to make available on demand, i.e., without any restriction. CRR claims to be
funded “by a community of supporters who believe deeply in our mission.” In actual fact,
however, CRR’s main source of funding appears to be the donations received from a small
number of extremely wealthy foundations seated in the US, which (according to the organiza-
tion’s annual report for 2007) include the William and Flora Hewlett Foundation, the David
and Lucile Packard Foundation, the Picower Foundation and, allegedly (according to an article
in the National Review of January 26, 2004, “Agendas all their own: the perils of NGOs —
non-governmental organizations”), George Soros’ Open Society Institute. These same funders
finance a large number of similar institutions that, in the name of “human rights,” “develop-
ment aid” or similar purposes, militate for the liberalization of abortion. This situation, where
a wide array of seemingly independent advocacy groups depend on grants made by a relatively
small number of donors, creates a false impression of pluralism, and allows these funders to
International Organizations Law Group • Legal Studies Series • Number Two 3
Part I: Normative and Jurisprudential Developments

backdrop it is not surprising that the O’Flaherty/Fisher article is based on

the assumption that any difference in treatment between heterosexuals
and homosexuals is “discriminatory”; or that Zampas/Gher assume (unre-
stricted?) access to abortion should be a “human right” to be defended, and
that laws prohibiting or foreseeing sanctions for abortions violate human
rights. In a certain sense, therefore, both articles could be described as a
monumental petitio principii: what the authors seek to demonstrate through
their arguments is identical to the assumptions on which their arguments
are based. Yet these assumptions, as the authors themselves cannot ignore,
are far from universally accepted (which, in turn, is precisely the reason for
their relentless campaigning): many jurisdictions continue treating abortion
or same-sex relations as crimes or offences, not as “rights.”

It is thus impossible to consider the O’Flaherty/Fisher article — despite the

claim made by the authors — as a “critical commentary” on the YP, assisting
the reader in ascertaining whether these principles do or do not reflect human
rights standards. Nor can one expect to discover in the Zampas/Gher article
any useful guidance or insights with regard to whether abortion is a crime or
a right. Nevertheless, both articles are of great interest and important read-
ing for any person interested in contemporary debates around human rights.
While they cannot realistically be acknowledged as scholarly contributions,
both articles can be seen as the stocktaking by political campaigners who wish
to change the traditional meaning of human rights and who, after some years
of intense lobbying, give an account of what they have achieved and what,
in their assessment, remains to be done. Reading them in this way, one can
safely assume to receive a complete picture both of the progress made in the
transformation of “human rights,” and of the resistance this transformation
process still encounters. Without doubt, if someone were to look for a complete
bibliography of all reports issued by UN committees, or all decisions issued by
the European Court of Human Rights (ECtHR) that could, in one way or the
other, be used to promote abortion as a “right,” he or she may happily expect
to find that information in the Zampas/Gher article. The same can be said
for the O’Flaherty/Fisher article in relation to lesbian/gay rights. Besides this,
both articles provide the attentive and discerning reader with some valuable
insight into how a manipulative discourse on “human rights” is used today to
promote certain political agendas:9 how the debates are framed, how political

influence the political decisions of governments and international institutions that, sometimes
naïvely, consider such advocacy groups as legitimate representatives of civil society.
9 The advocacy work of CRR raised considerable public attention in 2003, when internal
strategy papers were leaked to a member of the US Congress who immediately had them
4 International Organizations Law Group • Legal Studies Series • Number Two
 Part I: Normative and Jurisprudential Developments

campaigning is disguised as scholarly work, which argumentative patterns are

used, and which questions, by contrast, are silently passed over. They reveal
the mindsets and working methods of many contemporary “human rights
experts” and activists who consider human rights to be a motor for a social
and cultural change most people disagree with, rather than a shield to defend
fundamental values with which most people agree. They give a snapshot of
the current situation which, blurred as snapshots usually are, is probably more
illustrative of the dynamics of the debate around abortion and same-sex issues
than a more static picture could be.

It comes as no surprise, then, that the new generation of human rights

is highly divisive and controversial. There is a risk that the attempt to use
human rights as an instrument to impose newly manufactured cultural and
social values on societies unwilling to accept them could lead to some kind
of schism in the world of legal thought: human rights would no longer be
universal. Such a schism can only be avoided if the debate returns to some
recognized common ground. In this article, therefore, it is argued that
such common ground must be the assumption that “human rights” must
be understood as a codification of Natural Law. Where this assumption is
not made, it becomes inevitable that radical pressure groups use a stultified
human rights language to campaign for a questionable political agenda.

published in the Congressional Record (Extension of Remarks – E 2534-2547 of 8 December

2003) in order to warn the public against “the schemes of those who want to promote abortion
here and abroad.” Among other things, the leaked papers (from which all of the following quo-
tations are taken) reveal that CRR has a consistent strategy of “establishing international right
norms.” The goal of that strategy is “to ensure that governments worldwide guarantee women’s
reproductive rights out of an understanding that they are bound to do so.” Since, at the same
time, CRR acknowledged that “there is no binding hard norm that recognizes women’s right
to terminate a pregnancy” and that “the campaign for the adoption of a new international
treaty would be an extremely involved, resource-intensive and long process,” its efforts are now
directed at “developing a jurisprudence that pushes the general understanding of existing,
broadly accepted human rights law to encompass reproductive rights.” A key element in this
strategy is to bring cases to international and regional adjudicative bodies (such as the UN, the
ECtHR, or similar bodies) in order to promote novel interpretations of existing norms. “There
are several advantages to relying primarily on interpretations of hard norms. As interpreta-
tions of norms acknowledging reproductive rights are repeated in international bodies, the
legitimacy of these rights is reinforced. In addition, the gradual nature of this approach ensures
that we are never in an ‘all-or-nothing’ situation, where we may risk a major setback. Further,
it is a strategy that does not require a major, concentrated investment of resources, but rather
it can be achieved over time with regular use of staff time and funds. Finally, there is a stealth
quality to the work: we are achieving incremental recognition of values without a huge amount
of scrutiny from the opposition. These lower profile victories will gradually put us in a strong
position to assert a broad consensus around our assertions.” (emphasis added)
International Organizations Law Group • Legal Studies Series • Number Two 5
Part II: Reality Check: The Somewhat
Disappointing Achievements of
“Human Rights Advocacy”
In any discussion relating to “human rights” there is one fundamental
question: how do we identify what is and what is not a “human right”?
What, for example, are the reasons that should compel us to believe that
access to abortion is a human right, or that same-sex couples should have
the right to marry?

One simple answer could be that human rights are those which are gener-
ally recognized as such by the international community. In order to determine
what has been generally recognized as a human right, one could rely on the
relevant legal texts to which a greater or lesser number of States have signed up.

But if these criteria are applied, the recognition of access to abortion

or of gay/lesbian rights as human rights meets some important obstacles.
Indeed, these novel rights do not appear to find much support in positive
law. And if, rather than looking into the statute books, one were to concede
that for a “human right” to be “generally recognized” it would suffice to
demonstrate that it is implemented and respected in practice, the result is
even clearer: the facts exposed by Zampas/Gher and O’Flaherty/Fisher in
their respective articles do not demonstrate that abortion or homosexual
acts are generally considered as “rights”; instead, they could rather be used
to demonstrate the contrary.

Abortion as a Human Right: Nowhere Out of Africa

With regard to abortion, Zampas and Gher may at least be trusted to
have carefully analyzed all the relevant international legislation at both a
global and regional level. Wherever they have found even the slightest hint
of access to abortion being considered a (human) right in any one country

6 International Organizations Law Group • Legal Studies Series • Number Two

 Part II: Reality Check: The Somewhat Disappointing Achievements of “Human Rights Advocacy”

or region, or by any political institution or UN Committee, they surely have

not failed to mention it; in that sense, they can make a valid claim to com-
prehensiveness. Yet, while they speak of “pertinent developments within the
UN, European, Inter-American and African human rights systems regarding
abortion,”10 and happily announce that “human rights advocacy for abortion
has gained greater momentum,” they nevertheless cannot avoid acknowl-
edging that access to abortion is far from being universally recognized as a
human right. Judging from their own words, the success of their advocacy
appears to be limited:

The most explicit pronouncement of women’s right to access abor-

tion in the text of a human rights treaty is found in the Protocol on
the Rights of Women in Africa (African Women’s Protocol, AWP)
… The Protocol explicitly states: States Parties shall take all appro-
priate measures to ... protect the reproductive rights of women by
authorising medical abortion in cases of sexual assault, rape, incest,
and where the continued pregnancy endangers the mental and
physical health of the mother or the life of the mother or the foetus.11

The AWP is the only legally binding human rights instrument that
explicitly addresses abortion as a human right.12

As obscure as the AWP may be, the fact that an international human rights
instrument “addresses abortion as a human right” is admittedly a remarkable
success of CRR’s advocacy work, even if the instrument has only a limited
regional outreach. Yet, one could also say it in other words: “No human rights
treaty except the AWP explicitly articulates women’s right to abortion.”13 And
even in the AWP this new “right” exists only in narrowly defined circumstances.
Moreover, if one takes a closer look at the list of States having ratified this
instrument, one finds that the twenty signatory States of the AWP14 include
a remarkable selection of countries that are otherwise not reputed for their
promotion of the feminist agenda. Many of signatory States belong to the
Islamic cultural sphere. Given that Islam has a reputation of usually not be-
10 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 249.
11 Ibid., 250.
12 Ibid.
13 Center for Reproductive Rights Briefing Paper: “The Protocol on the Rights of Women
in Africa: An Instrument for Advancing Reproductive and Sexual Rights” (February 2006), 6.
14 According to n. 8 of the Zampas/Gher article, these States are: Benin, Burkina Faso,
Cape Verde, Comoros, Djibouti, Gambia, Libya, Lesotho, Mali, Malawi, Mozambique, Mau-
ritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Togo and Zambia.
International Organizations Law Group • Legal Studies Series • Number Two 7
Part II: Reality Check: The Somewhat Disappointing Achievements of “Human Rights Advocacy”

ing very receptive to those progressive concepts of women’s rights advocated

by Zampas/Gher and likeminded activists, it is more than surprising that
these States should have gathered to negotiate and sign, on their own initia-
tive, a protocol in which access to abortion is treated as a human right. One
wonders whether the ratification of the AWP by the governments concerned
really reflects the attitude of the people supposedly represented by those
governments.15 Could the willingness to sign up have had to do with the fact
that several of the signatory States are developing countries relying heavily on
aid from industrialized countries, and that such aid was made conditional on
signing the Protocol? It is a known fact that many Western countries attempt
to exert pressure on developing countries in this way, making the grant of
development aid conditional on the liberalization of abortion.16 But even if a
government gives way to such pressure, does that mean that the “liberalized”
legislation reflects a general moral sentiment in that country according to
which abortion were to be considered a right?

In addition, Zampas/Gher themselves provide (probably malgré eux)

ample evidence that outside of the AWP abortion is generally not recognized
as a “right” — not even in Europe, where legislation on abortion is consid-
ered to be the most liberal, given that many countries refrain from applying
criminal sanctions against abortion in certain circumstances. For example,
with regard to the European Convention on Human Rights (ECHR), they
write that the Convention “does not expressly guarantee any health or
reproductive rights,”17 and that “the ECHR bodies have carefully avoided
stating whether abortion is protected under the ECHR, and/or whether ‘legal
and safe abortion should or should not be available under domestic law.’”18

15 It should be noted that several, if not a majority, of these governments cannot be de-
scribed as democratic, a circumstance that provides further grounds to such doubts.
16 This is termed “contraceptive colonialism” in some quarters. One widely publicized
instance of this kind affected Nicaragua, which in October 2006 adopted a law contemplat-
ing a total ban on abortion. Even before the adoption of the vote, a group of diplomats
attempted to pressure the government to drop the proposal urging them to reflect and enter
into a dialogue before making the decision. A threatening letter was sent to National As-
sembly President, Eduardo Gomez, by a group of ambassadors of donor countries, hinting
that aid money, still badly needed after the devastation of Hurricane Mitch in 1998, would
be withheld if abortion restrictions were not loosened. The letter’s signatories included the
ambassador from Sweden, Eva Zetterberg; advisor of development and head of cooperation
of Canada, Kerry Max; representative of United Nations Development Program (UNDP),
Alfredo Missair and formerly the representative of UN Children’s Fund (UNICEF) for Latin
America; and ambassador of Finland, Inger Hirvela Lopez.
17 Christina Zampras and Jaime M. Gher, “Abortion as a Human Right,” 275.
18 Ibid., 276.
8 International Organizations Law Group • Legal Studies Series • Number Two
 Part II: Reality Check: The Somewhat Disappointing Achievements of “Human Rights Advocacy”

In short: under current international law, there is no right to abortion.

This “right” remains yet to be manufactured.

Against this overwhelming evidence, Zampas/Gher might, of course,

argue that the tide is turning: whereas a majority of countries still reject the
view that abortion is a human right, some progressive-minded countries are
now beginning to accept this view, and their number is increasing.19 In addi-
tion, they point to a number of recent cases in which existing international
conventions on human rights have been, by relevant treaty-monitoring
bodies, subject to novel interpretations that are supportive of this view.
Decisions advocating support of a right of access to abortion include Karen
Llantoy Huamán v. Peru 20 and Alicja Tysiąc v. Poland.21

Even while Zampas/Gher, in describing these developments, use terms such

as “ground-breaking,”22 “landmark decision,”23 “significant advancement,”24
etc., they acknowledge their own awareness that the interpretations of human
rights they are applauding are novel, unusual and far from being universally
recognized (otherwise, what ground needs to be broken?). Indeed, legislation
guaranteeing total and unrestricted access to abortion on demand throughout
the full term of a pregnancy (which, it seems, would be the one and only way
to bring a country’s law into full conformity with what Zampas/Gher believe
to be the “reproductive rights of women”)25 exists nowhere in the world.
19 However, the contrary is equally true. More recently, several countries have enacted
new, more restrictive legislation. Examples include Nicaragua, Ireland (where a constitution-
al amendment to ban abortions has been adopted), Poland (where a restrictive law replaced
the law dating from the communist era, which allowed abortion on demand), and Russia,
which is said to have demographic concerns.
20 UN Human Rights Committee, Communication 1153/2003, Karen Noelia Llantoy
Huamán v. Peru, final views of 17 November 2005 (CCPR/C/85/D/1153/2003).
21 ECtHR, Tysiąc v. Poland, Application 5410/03. It should be noted however, that in this
decision Poland was condemned for not having foreseen a mechanism to review, at the
request of a pregnant woman, the decision of medical doctors that the conditions for a legal
abortion were not met (abortion being exempted from criminal sanctions under certain,
very restrictive conditions). While the decision can with good reasons be criticized as an
attempt of legalizing abortion through the backdoor, it remains true that, as Judge Bonello
pointed out in his separate opinion, the decision does not concern “any abstract right to
abortion, nor, equally so, with any fundamental human right to abortion lying low some-
where in the penumbral fringes of the Convention.”
22 Christina Zampas and Jaime M. Gher, 292, with regard to the decision of the legislature
of Mexico City to legalize abortion in the first trimester.
23 Ibid., 275, with regard to the decision Tysiąc vs. Poland of the ECtHR.
24 Ibid., 293, commenting on new Portuguese legislation liberalizing abortion.
25 In fact, it is not discernible from the Zampas/Gher article whether the authors would
International Organizations Law Group • Legal Studies Series • Number Two 9
Part II: Reality Check: The Somewhat Disappointing Achievements of “Human Rights Advocacy”

Homosexual Relations: Considered a Crime in a Majority

of Countries
With regard to lesbian/gay rights, the situation is even more clear cut.
The O’Flaherty/Fisher article draws a bleak picture:

At least seven countries maintain the death penalty for consensual

same-sex practices.26

More than 80 countries still maintain laws that make same-sex

consensual relations between adults a criminal offence.27

In some countries, laws have prohibited the “promotion of homo-

sexuality” in schools.28

Certainly, there are good reasons to consider it inappropriate, or at

least exaggerated, to persecute homosexual acts between consenting adults
through criminal law. Yet one thing is very clear: if more than 80 countries
maintain laws making same-sex relations a criminal offence, and if some
(or rather, as one must suppose, the majority) of the remaining countries
have legislation prohibiting the promotion of homosexuality among mi-
nors, one is hardly in a position to affirm that practicing homosexuality is
generally recognized as a human right. In reality, the contrary is true: those
considering homosexuality as a “right” cannot base their views on positive
law; instead, they must (and do) seek to change positive law in order for it
to reflect their views.

accept any restriction on abortion as legitimate, and where that limit would lie. It should
however be noted that CRR, the organization both authors are affiliated with, has cam-
paigned against attempts to ban partial-birth abortions in the US, both at federal and state
level. Partial-birth abortion is a particularly gruesome method that is typically used for
abortions in cases where the pregnancy is already in a late stage.
26 Michael O’Flaherty and John Fisher, “Sexual Orientation,” 208.
27 Ibid., 210.
28 Ibid., 212.

10 International Organizations Law Group • Legal Studies Series • Number Two

Part III: Emerging Consensus?
As we have seen, the notion that abortion and homosexuality are “rights”
is not supported by positive law, and the authors asserting such “rights” are
aware of this. What is then the basis for their assertions? In both articles, the
authors refer to a newly found “consensus” which, after having been agreed
upon in international fora, now needs to be implemented. The question is:
who has agreed to this “consensus”? When and where? If it really is a con-
sensus, why does it meet so much resistance?

Consensus on Conferences
According to Zampas/Gher, the “consensus” that “reproduc-
tive rights” (which are here equated to a right to abortion) are hu-
man rights originates from two international Conferences which, in
the last decade of the twentieth century, were organized by the UN.
They write:

Promotion of women’s reproductive rights has recently gained momen-

tum, in large part, due to the 1994 International Conference on Popu-
lation and Development (ICPD), held in Cairo, and the 1995 Fourth
World UN Conference on Women, held in Beijing. Commentators
consider that “[t]hese two conferences led to the recognition that the
protection of reproductive and sexual health is a matter of social justice,
and that the realization of such health can be addressed through the
improved application of human rights contained in existing national
constitutions and regional and international human rights treaties.” The
consensus statements created at these conferences touch on women’s
right to abortion, and thus provide additional support for the notion
that women’s reproductive rights are human rights.29

29 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 252.

International Organizations Law Group • Legal Studies Series • Number Two 11

Part III: Emerging Consensus?

Upon closer look at this passage, one cannot help noting that the ori-
gins of the asserted “consensus” remain rather obscure. Zampas/Gher avoid
committing themselves; instead, they quote “commentators” who make a
statement that the two UN Conferences “led to the recognition that the
protection of reproductive and sexual health is a matter of social justice,”
etc. But the “commentators” fail to say whose recognition or consensus this
was, and it remains unclear how the notion that abortion is a “human right”
can be deduced from this recognition.

The truth is that the ICPD Programme of Action adopted at the Cairo
Conference is the first text in history where the term “reproductive health,”
which has ever since been the cheval de bataille of those wishing to assert
that a “right to abortion” enjoys international recognition, was defined and
used. But that definition does not include a “right to abortion.” It describes
reproductive health as:

A state of complete physical, mental and social well-being and ... not
merely the absence of disease or infirmity, in all matters relating to
the reproductive system and its functions and processes. Reproduc-
tive health therefore implies that people are able to have a satisfying
and safe sex life and that they have the capability to reproduce and
the freedom to decide if, when and how often to do so. Implicit in
this last condition are the right of men and women to be informed
[about] and to have access to safe, effective, affordable and accept-
able methods of family planning of their choice, as well as other
methods for regulation of fertility which are not against the law,
and the right of access to appropriate health-care services that will
enable women to go safely through pregnancy and childbirth and
provide couples with the best chance of having a healthy infant.30

Only subsequently have some interested parties attempted to inter-

pret the term “reproductive health” in the sense that it included a right
to abortion. Yet these attempts have been unsuccessful. While it would
exceed the scope and purpose of this paper to analyze the positions of all
and every government that, following the Cairo Conference, has joined
the consensus, it suffices to look at one group of countries, the European
Union (EU), where legislation on abortion is certainly less restrictive than
elsewhere. In that context, it should be noted that the Council Presidency,

30 ICPD Programme of Action, para. 7.2.

12 International Organizations Law Group • Legal Studies Series • Number Two

 Part III: Emerging Consensus?

answering to a question of a Member of the European Parliament, clearly

stated that the Council’s commitment to promote “reproductive health”
did not include the promotion of abortion.31 Likewise, the European
Commission, in response to a question from a Member of the European
Parliament, clarified:

The term “reproductive health” was defined by the United Nations

in 1994 at the Cairo International Conference on Population and
Development. All Member States of the Union endorsed the Pro-
gramme of Action adopted at Cairo. The Union has never adopted
an alternative definition of “reproductive health” to that given in
the Programme of Action, which makes no reference to abortion.32

With regard to the United States (US), it should be noted that, only a
few days prior to the Cairo Conference, the head of the US delegation, Vice
President Al Gore, had stated for the record:

Let us get a false issue off the table: the US does not seek to establish
a new international right to abortion, and we do not believe that
abortion should be encouraged as a method of family planning.33

Some years later, the position of the US Administration in this debate

was reconfirmed by US Ambassador to the UN, Ellen Sauerbrey, when she
stated at a meeting of the UN Commission on the Status of Women that
“non-governmental organizations are attempting to assert that Beijing34 in

31 European Parliament, December 4, 2003: Oral Question (H-0794/03) for Question

Time at the part-session in December 2003 pursuant to Rule 43 of the Rules of Procedure by
Dana Scallon to the Council. In the written record of that session, one reads: Posselt (PPE-
DE): “Does the term ‘reproductive health’ include the promotion of abortion, yes or no?” —
Antonione, Council: “No.”
32 European Parliament, October 4, 2002: Question no. 86 by Dana Scallon (H-0670/02).
(emphasis added)
33 Jyoti Shankar Singh, Creating a New Consensus on Population (London: Earthscan,
1998), 60, quoted in Doug Sylva and Susan Yoshihara, “Rights by Stealth: the Role of UN
Human Rights Treaty Bodies in the Campaign for an International Right to Abortion,”
International Organizations Research Group White Paper No. 8, (New York: C-FAM, 2007):
10. (emphasis added)
34 Sauerbrey was referring to the Fourth World UN Conference on Women, held 1995
in Beijing. Participants at the Beijing conference adopted a platform stating that abor-
tion should be safe in places where it is legal, and that criminal charges should not be filed
against any woman who undergoes an illegal abortion. The platform also stated that women
have the right to “decide freely and responsibly on matters related to their sexuality ... free
International Organizations Law Group • Legal Studies Series • Number Two 13
Part III: Emerging Consensus?

some way creates or contributes to the creation of an internationally recog-

nized fundamental right to abortion.”35 She added: “There is no fundamental
right to abortion. And yet it keeps coming up, largely driven by NGOs trying
to hijack the term and trying to make it into a definition.”36

Where then is the consensus? If not even the governments of Euro-

pean countries or the US interpret the Cairo Programme of Action or
the Beijing Platform as containing an obligation to legalize abortion, is it
plausible that the governments of countries with more restrictive legisla-
tion would read such obligation into it? Even if governments may have
endorsed the texts, it is clear that not all of them (if any) interpret them
in the way suggested by Zampas/Gher. Any claims, whether by these or
other authors, that the definition of “reproductive health” adopted at the
Cairo Conference included or implied abortion to be a “right,” are therefore
manifestly ill-founded.

It is not the place here to analyze in-depth the genesis of the texts adopted
at the Cairo and Beijing Conferences. It should suffice to note that these texts
are not legally binding, that their drafting is vague and ambiguous;37 and that,
according to critics, it was indeed the underlying strategy of the organizers of
the Conference to pressure sovereign countries into accepting an obscure text,
the true meaning of which was only subsequently to be revealed through the
interpretation of these texts by “experts.” Commentators have called the Cairo
and Beijing Conferences a “fake consensus,”38 and have described them as part
of a power shift to the unelected,39 i.e., to a “global governance” of international
bureaucracies and certain, mostly leftist, non-governmental organizations:

of coercion, discrimination and violence.” This was subsequently used by certain NGOs as a
basis to affirm a “consensus” that access to abortion was a “human right.”
35 Edith M. Lederer, AP/San Francisco Chronicle, March 1, 2005.
36 Evelyn Leopold, Reuters, February 28, 2005. (emphasis added)
37 They are indeed so ambiguous that some commentators were able to interpret them in
the direct opposite sense: “ … the abortion language that did gain inclusion in the docu-
ments was so successfully debated by conservative forces, and therefore so circumspect, that
arguably it categorically and explicitly stops abortion from being deemed a right. There
simply was no clarion call for abortion rights emerging from the conferences.” (Douglas A.
Sylva and Susan Yoshihara, “Rights by Stealth: the Role of UN Human Rights Treaty Bodies
in the Campaign for an International Right to Abortion,” 10.
38 Douglas A. Sylva, in a hearing held by the European Parliament’s Committee on
Women’s Rights and Gender Equality on January 29, 2008.
39 Marguerite Peeters, Hijacking Democracy – The Power Shift to the Unelected (New York:
American Enterprise Institute, 2001), 1. http://www.aei.org/docLib/20030103_hijackingde-
mocracy.pdf (accessed December 15, 2009).
14 International Organizations Law Group • Legal Studies Series • Number Two
 Part III: Emerging Consensus?

The vaunted consensus has been closed to outsiders … because those

outsiders — government, in particular — have real people to govern
and to help under real circumstances. But it remains open to the UN’s
special partners who continue interpreting the consensus in the light of
their own agenda. The partners’ agenda — that is, the hidden agenda of
radical groups working against democracy, family, liberty, free market,
religion — is the real powerhouse of the process. The process is self-
generating, as it keeps on enlarging the consensus according to the part-
ners’ vision … In addition, many key terms or expressions used in the
formulation of the new paradigm — such as sustainable development,
reproductive health, the gender perspective, the partnership principle, the
rights approach, quality of life, people-centeredness, ownership, holism,
global governance — sound progressive, but their meaning has remained
nebulous for most governments. This has made it easier for govern-
ments to commit to these notions, because of their ambivalence. The
new terminology has been invented by the partners and interpreted by
different people in different ways, both mainstream and radical, as if
it had been agreed in advance to “let a thousand flowers bloom.” This
vagueness, however, is of great advantage to the Global New Left. The
vocabulary’s high-sounding vagueness attracts people of good will but
not much experience, and once attracted they are vulnerable when the
radical partners impose their own top-down interpretation of what
these sonorous phrases really mean.40

This criticism of the UN Conferences may sound harsh, yet it is uncon-

testable that: 1) the texts adopted at these conferences were prepared, prior
to the events themselves, by the UN bureaucracies in close co-operation
with pre-selected representatives of “civil society”; 2) they are vague and
purposefully leave a wide margin for different interpretations; 3) they are
not legally binding; and 4) governments were confronted with the alternative
of either endorsing these texts or staying outside the “consensus.” Govern-
ments, in fact, had very little opportunity to influence the drafting. Under
these circumstances one cannot help concluding that both the scope and
the contents of the “consensus,” if it can be called by that name, remain
uncertain. And it is not surprising that governments that have endorsed the
texts adopted at the conferences are reluctant to comply with the interpreta-
tions of these texts subsequently promoted by authors such as Zampas and
Gher. “Vor Tische las man’s anders,” as Friedrich Schiller41 would have put it.
40 Ibid., 21.
41 Friedrich Schiller, Die Piccolomini, IV, 7. The quotation (“Before supper, it was read
International Organizations Law Group • Legal Studies Series • Number Two 15
Part III: Emerging Consensus?

Consensus Among “Experts”

In the YP a similar pattern can be observed. This time, however, the
consensus does not stem from any of the UN Conferences, but from a select
and exclusive circle of experts, i.e., the drafters of the YP:

Twenty-nine experts were invited to undertake the drafting of the

Principles. They came from 25 countries representative of all geo-
graphic regions. They included one former UN High Commissioner
for Human Rights (Mary Robinson, also a former head of state),
13 current or former UN human rights special mechanism office
holders or treaty body members, two serving judges of domestic
courts and a number of academics and activists. Seventeen of the
experts were women … All of the text was agreed by consensus.42

Again, this leaves some important questions unanswered. Who selected

and invited the experts? In what sense can it be said that the experts were
“representative” of all geographic regions? What is the value of a consensus
between experts who, in the first place, may have been selected to draft the
YP precisely because they are supportive of the agenda which the YP pro-
mote? To what extent, for example, can the views of former Head of State
Mary Robinson be considered to represent those of her native Ireland, or of
any other country? Was she democratically elected, or are there any other
reasons to suggest that her views represent those of the Irish population?

A small self-recruited group of persons agrees on a text, which it then

claims to represent a universal “consensus.” This is how O’Flaherty/Fisher hope
the YP will “frame the debate.” But what does this consensus include? Is it really
about “the obligation of States to respect, protect and fulfill the human rights
of all persons regardless of their sexual orientation or gender identity”? (An
objective which nobody would refuse.) Or does it not reach far beyond that?

This time governments are not even offered the choice to either sign up
or stay outside the consensus. The most astounding feature of the YP is that
the drafters, modestly introducing themselves as a “distinguished group of

differently”) is taken from a scene where Wallenstein, the supreme commander of the Impe-
rial Army, attempts to make other senior commanders sign a document of which he has
manipulated the content. The scene relates to an historic incident of the Thirty Years’ War in
Germany, the so-called “Pilsen Conclusions.”
42 Michael O’Flaherty and John Fisher, “Sexual Orientation,” 233.
16 International Organizations Law Group • Legal Studies Series • Number Two
 Part III: Emerging Consensus?

human rights experts,”43 do not find it necessary to wait for governments

to sign up to their text. Instead, they claim that their “consensus” is that of
all States that have signed up to the Universal Declaration of Human Rights
(UDHR),44 and therefore needs no further ratification. They call on the UN
and their institutions, as well as regional human rights courts (such as the
European Court of Human Rights) to enforce these Principles even against
States that have never actually signed up to them.45 (In other words, 29 “ex-
perts” without a mandate purport to act as global legislators.) It remains to
be seen whether the UN and other human rights institutions will assume this
task and, if so, whether national governments will find the courage to resist.46
One can only urge governments to carefully read the small print of the YP
prior to endorsing them, notably the parts introduced with the words “States
shall.” Then they will notice that the purported “consensus” includes, inter
alia, an obligation on them to change their constitutions and fundamental
laws to reflect the YP, to “ensure that an equal age of consent applies to both

43 YP, Introduction, para. 8.

44 Ibid., paras 11 and 12: “The experts agree that the Yogyakarta Principles reflect the ex-
isting state of international human rights law in relation to issues of sexual orientation and
gender identity. They also recognise that States may incur additional obligations as human
rights law continues to evolve. The Yogyakarta Principles affirm binding international legal
standards with which all States must comply.” One might expect a “critical commentary” on
the YP (i.e., one not written by the lead drafter of the Principles) to challenge such a state-
ment.
45 Ibid., “Additional Recommendations,” where the experts recommend (inter alia) that:
“the United Nations Human Rights Council endorse these Principles … with a view to
promoting State compliance with these Principles”; “the United Nations Human Rights
Special Procedures pay due attention to human rights violations based on sexual orientation
or gender identity, and integrate these Principles into the implementation of their respec-
tive mandates”; “the United Nations Human Rights Treaty Bodies vigorously integrate these
Principles into the implementation of their respective mandates, including their case law
and the examination of State reports, and, where appropriate, adopt General Comments or
other interpretive texts on the application of human rights law to persons of diverse sexual
orientations and gender identities”; “regional human rights courts vigorously integrate those
Principles that are relevant to the human rights treaties they interpret into their developing
case law on sexual orientation and gender identity.” In essence, this means that those moni-
toring bodies and regional human rights courts are called upon to change the law through
interpretation.
46 Some countries are already taking pro-active measures to defend themselves against
the imposition of the same-sex agenda. For example, Latvia has recently amended Article
110 of its Constitution to define marriage as “a union between a man and a woman.” In the
United States, 30 of the 50 states have in recent years made similar amendments to their
constitutions in order to prevent same-sex marriages from being introduced undemocrati-
cally through court decisions. In addition, 10 states have adopted non-constitutional statutes
explicitly ruling out the recognition of same-sex marriages.
International Organizations Law Group • Legal Studies Series • Number Two 17
Part III: Emerging Consensus?

same-sex and different-sex sexual activity,” and to “ensure the right to …

adoption or assisted procreation (including donor insemination), without
discrimination on the basis of sexual orientation or gender identity.” The YP
contain not less than 127 “States-shall” clauses, some of them open to very
wide interpretation.47 For any critical reader it must be clear that these clauses
do not represent any existing human rights standard, but a comprehensive
working program for legislators, requiring them to rewrite considerable parts
of their domestic legislation in order to accommodate an ultra-radical same-
sex agenda. Setting aside all questions concerning the substance of the YP, their
credibility as a consensus is thus more than questionable. If the YP represent
a consensus, it must be one of gay-rights activists, not one of governments
or nations. As such, it remains irrelevant for the international community.

While the drafters of the YP loudly demand that their “consensus” be

endorsed by the UN and national governments, their strategy of affirming
consensus is now also used by other “expert groups” to promote other new
“principles.” In October 2008 a “Declaration on the Principles of Equality”48
was issued by a new organization called “The Equal Rights Trust.” The Dec-
laration reminds strongly of the YP: 1) a self-appointed group of persons
describing themselves as “more than 120 of the world’s leading human rights
and equality experts”;49 and 2) the claim that the text they have drafted “re-
flects a moral and professional consensus among human rights and equality
experts.”50 (Suggesting that this faux consensus is shared also by experts outside
that group.) As in the YP, the language is high sounding and uses legal style
and terminology, affirming “rights” and “duties.” However, there is also one
considerable difference of approach: these new “principles of equality” are so

47 One example is the provision at Principle 21(b) that “expression, practice and promo-
tion of different opinions, convictions and beliefs with regard to sexual orientation or gen-
der identity is not undertaken in a manner incompatible with human rights.” O’Flaherty/
Fisher comment as follows on page 236: “Thus expressed it is unclear, for instance, whether a
faith community could exclude someone from membership on grounds of sexual orienta-
tion, albeit the Principle, at a minimum, would require reflection as to the legitimacy in law
of such an exclusion.” The agenda is thus set, and it seems that O’Flaherty/Fisher want their
Principles to be understood as superseding the freedom of religious communities to define
and practice their faith.
48 Equal Rights Trust. http://www.equalrightstrust.org (accessed December 15, 2009).
49 Press release of the Equal Rights Trust, October 21, 2008. http://www.equalrightstrust.
org/news-archive/index.htm (accessed December 15, 2009).
50 Introduction to the Declaration on the Principles of Equality, 2. http://www.equalright-
strust.org/ertdocumentbank/Pages%20from%20Declaration%20perfect%20principle.pdf
(accessed December 15, 2009).

18 International Organizations Law Group • Legal Studies Series • Number Two

 Part III: Emerging Consensus?

far-reaching that even their drafters dare not assert that they reflect the existing
state of international law. Therefore, their discourse now goes into the exact
opposite direction, alarming the public that “over 160 countries in the world
lack effective legal protection against discrimination and legal means to pro-
mote equality,” and “even in countries where such provisions are in force, the
legislation is fractured, inconsistent, complicated and inefficient.”51 In other
words, such “effective protection” against discrimination not only is not an
international standard, but it is nearly the contrary: nowhere in the world is
“equality,” as such, recognised as a “human right.” However, given that “more
than 120 of the world’s leading human rights and equality experts” have found
that “in all its manifestations, discrimination is the most widespread human
rights violation”, it is clear that urgent action must now be taken. The draft-
ers of the Declaration therefore, rather than invoking current obligations,
call for “the most radical re-think of equal rights in two generations,” further
claiming that the Declaration is the “first ever international initiative to set
out general legal principles that define equality as a basic human right.”52 In
a certain sense, therefore, this new initiative is less misleading than the YP:
it does not make wrong affirmations as to a current state of law; instead, the
drafters openly say that they want international law to be radically changed
according to their suggestions. Yet, it remains that the document is based on
a “pretended” consensus rather than a real one. (It comes as no surprise that
the signatories of the Declaration are in part identical to those of the YP:53
a small group of always the same “experts” multiply their efforts to set the
agenda for the world.)

Vox Populi?
But perhaps we need to understand the word “consensus” in a broader
sense, i.e., as a consensus neither of experts nor of governments, but of
humanity. This approach would beg questions to ponder: 1) Do govern-

51 These and the following quotations are from the press release of the Equal Rights Trust,
October 21, 2008.
52 Ibid.
53 Lawrence Mute, Manfred Nowak, Michael O’Flaherty, Dimitrina Petrova, Rudi Mu-
hammad Rizki, Nevena Vučković Šahović, Wan Yanhai, Roman Wieruszewski. It should
also be noted that Manfred Nowak, as well as Olivier de Schutter (now UN Special Rap-
porteur on the Right to Food) and Martin Scheinin, who are among the signatories of the
“Principles of Equality,” were also members of the “EU Network of Independent Experts in
Fundamental Rights” that issued the controversial Legal Opinion 4.2005 on “Conscientious
Objection.” (see footnote 61)
International Organizations Law Group • Legal Studies Series • Number Two 19
Part III: Emerging Consensus?

ments fail to adequately represent the views and moral convictions of their
people when they adopt international conventions on human rights? 2)
Is there now a broad, “times they are a-changin’,” consensus among the
vast majority of people in a vast majority of countries that abortion or
homosexuality are “rights”, not “wrongs”? 3) Does international law, for
some mysterious reason, simply fail to appropriately transpose this general
opinio iuris sive necessitatis (an opinion of law or necessity) into positive
law, so that contemporary “experts” (like Zampas/Gher and O’Flaherty/
Fisher) must base their views on such generally held views rather than on
outdated legal texts?

In the Zampas/Gher article, no such reference to a general moral sen-

timent is made. This is by no means surprising. Given that Ms. Zampas
and Ms. Gher both work for the pro-abortion lobby group, Center for
Reproductive Rights, they have probably read the internal strategy paper
of that group, which openly acknowledges that public opinion does not
support its aims: addressing the situation in the US, the paper mentions
that “even under pro-choice Administrations, women’s right to choose
has always needed, and will need again, the protection of the judiciary
from hostile majorities in many, if not most, states,”54 and, that “there is
growing opposition amongst minors to abortion and being pro-choice.”55
In other words: they promote the right to abortion despite, not because
of, the majority opinion.

Likewise, when the O’Flaherty/Fisher article reports that 80 States

continue to criminalize same-sex relations between consenting adults, this
situation, regrettable as it may be, provides also the best evidence that the
same-sex agenda does not emanate from a worldwide consensus. But it is
not the law alone that, in many countries, is hostile to homosexuality, as a
small selection of the (very numerous) incidents reported by O’Flaherty/
Fisher clearly illustrates:

Numerous reports have documented persons killed … because of

their sexual orientation or gender identity, including a gay man
sprayed with gasoline and set on fire in Belgium, the murder of
a transgender human rights defender in Argentina, a nail bomb

54 United States Congressional Record, December 8, 2003, E 2539.

55 Ibid., E 2540.

20 International Organizations Law Group • Legal Studies Series • Number Two

 Part III: Emerging Consensus?

explosion in a gay bar in the United Kingdom, killing three people

and injuring dozens of others, the murder of a gay rights activist
by multiple knife wounds in Jamaica, prompting a crowd to gather
outside his home, laughing and calling out “let’s get them one at a
time,” and the recent execution-style murder of two lesbian human
rights defenders in South Africa.56

A teenager in Dublin attacked a woman he mistook for a gay man

because of her hairstyle. Approaching the woman and her male
companion with the inquiry “are you two gay guys?” he proceeded
to strike the couple, knocking them to the ground, before kicking the
woman in the back and stomach, and jumping on the man’s back.57

Participants in an Equality March in Poland … faced harassment

and intimidation by police as well as by extremist nationalists who
shouted comments such as “Let’s get the fags,” and “We’ll do to you
what Hitler did with Jews,” and attempted suppression of Pride events
has been documented in at least 10 instances in Eastern Europe.58

There can be no doubt that the killing, assailing or harassing of any

person is a serious crime, including in those countries from which these
incidents have been reported. Although O’Flaherty/Fisher offer anecdotal
evidence of spectacular individual cases rather than statistics, they clearly
make a case in fact that homosexuals “are often subjected to violence ... in
order to ‘punish’ them for transgressing gender barriers, or for challenging
predominant conceptions of gender roles.”59 But what is the motivation for
these assaults? If anything, they seem to indicate that homosexuality is not
seen as normal, nor as a “right” by those assailants. Indeed, hooligans bully
homosexuals because they know that a strong majority in society repudiates
homosexuality. This, of course, does not provide legitimacy to any assault
against homosexuals —but neither is the adequacy of the (apparently pre-
vailing) negative moral judgement on homosexuality disproved by any of the
incidents mentioned by O’Flaherty/Fisher. And while it is of course true that
homosexuals must be protected against violence and harassment, it would

56 Micheal O’Flaherty and John Fisher, “Sexual Orientation,” 208.

57 Ibid., 210.
58 Ibid., 211.
59 Ibid., 209.

International Organizations Law Group • Legal Studies Series • Number Two 21

Part III: Emerging Consensus?

be wrong to use these incidents in order to put reasoned and well-articulated

opposition against the Lesbian, Gay, Bisexual and Transgender (LGBT)
agenda into one and the same basket and describe it all as “homophobia.”

Moreover, it should be noted that the YP make no specific contribution

to solve the problem of violence against homosexuals. Adequate legisla-
tion against such violence is in place in nearly all countries of the world,
including those where the reported incidents have taken place. If anything,
there might be a lack of enforcement (but with regard to the specific cases
reported by O’Flaherty/Fisher, their paper does not even mention any such
lack of enforcement!). But the remedy against weak law enforcement is
better law enforcement, not new legislation: one fails to understand how
the world-wide recognition of same-sex marriages, to mention just one
desideratum of the YP, would contribute to protecting homosexuals against
being assaulted by hooligans.

One is thus left to wonder: why are O’Flaherty/Fisher mentioning these

incidents, which 1) seem to disprove rather than support any suggestion that
homosexuality is generally believed to be a “human right,” and 2) are inept
to provide proof for the necessity of any new document such as the YP? Is
this to be understood as insinuating that anybody not providing unreserved
support to the YP must be suspected of tolerating violence against homo-
sexuals and/or sympathizing with the perpetrators of such acts?

In actual fact, the same-sex rights agenda is not opposed only by

skinheads and hooligans, but also by the mainstream of society — even in
liberal and “progressive” societies. Wherever and whenever the public has
been invited to express its views on such matters in a democratic referen-
dum, it has voted against. The most recent examples were the votes held
in California, Arizona, and Florida on November 4, 2008, through which
the constitutions of these three states were amended in order to explicitly
rule out the recognition of same-sex marriages, bringing the number of
US states having adopted such constitutional amendments to 30 out of
50. In addition, ten other states have adopted ordinary statutes foreseeing
such a ban. By contrast, in those states where same sex-marriages are or
were available (i.e., Massachusetts, Connecticut and California, where the
referendum of November 4, 2008 was held to abolish them), this situation
was not the result of any democratic legislative process, but of highly con-
troversial judicial decisions adopted by the Supreme Courts of these states,
finding that the obligation to recognize same-sex marriage was in some way

22 International Organizations Law Group • Legal Studies Series • Number Two

 Part III: Emerging Consensus?

already mandated by existing constitutional law, but failing to explain why

the hidden sense of the constitutional provisions used for that purpose had
never been discovered in the decades or centuries before. New Hampshire,
where it was adopted by the legislature, is the exception that proves the rule.
In summary then, the same-sex rights agenda was imposed on an unwilling
majority through a judicial putsch, in a way that definitely reminds of the
US Supreme Court’s Roe v. Wade decision. The support this agenda enjoys
in the broader public appears to be, at best, very limited.

International Organizations Law Group • Legal Studies Series • Number Two 23

Part IV: Abortion, Homosexuality
and the Natural Law of Morality
From the prior examination above, it is clear that the “right to abortion”
advocated by Zampas/Gher and the same-sex rights agenda promoted by
O’Flaherty/Fisher have no basis in positive law. They are not warranted by
any “consensus,” be it of a po-
litical or an academic nature; The “right to abortion” advocated
nor can they be based on a by Zampas/Gher and the same-
general sentiment prevailing sex rights agenda promoted by
in the general public, even
if, giving n to some kind of O’Flaherty/Fisher have no basis in
a cultural prejudice, we un- positive law. They are not warranted
derstood that public to be not by any “consensus,”... nor can they
a global public, but only the be based on a general sentiment
“West.” It thus seems that the
positions of Zampas/Gher
prevailing in the general public.
and O’Flaherty/Fisher are in
fact isolated, even if they find
strong support in certain factions of the European and Anglo-American politi-
cal and cultural elite, as well as in the “findings” of “experts” such as themselves.

The Elitism of “Human Rights Experts”

It should be said openly: the concept of human rights advocacy un-
derlying the advocacy efforts of Zampas/Gher and O’Flaherty/Fisher is
fundamentally elitist, patronizing and un-democratic. There is, it seems, a
restricted circle of the same, constantly re-appearing experts60 who alone

60 It appears that of the “experts” sitting on such UN Committees, Treaty Monitoring

Bodies or similar institutions, many have a strong sympathy for the novel interpretations of
human rights discussed in this article — which indeed might be among the key criteria for
24 International Organizations Law Group • Legal Studies Series • Number Two
 Part IV: Abortion, Homosexuality and the Natural Law of Morality

purport to know what is and what is not a human right; and there is the
rest of the world — helpless, hapless, uninformed people — who must be
“empowered”61 and “educated.”62

being appointed to such posts. This could be yet another reason why the “reporting” and
“bringing of complaints” to these bodies enjoys such popularity among the pro-abortion
and lesbian/gay lobbies. Indeed, this complicity at times so obviously influences the exper-
tise provided that one has strong reasons to doubt the good faith and impartiality of these
experts. One spectacular example was the Legal Opinion (No. 4.2005) of an “EU Network
of Independent Experts in Fundamental Rights” on the right to conscientious objection and
the conclusion by EU Member States of Concordats with the Holy See which purported
to find that there was a “Right to Abortion,” superseding the right of medical practitioners
to decide according to their conscience whether they wanted to procure abortion or not.
This legal opinion consisted in large parts of the written input provided by the Center
for Reproductive Rights. At the same time, the Network took no steps at all to become
acquainted with the views of any anti-abortion groups, let alone those of the State parties
directly concerned, i.e., the Holy See and Slovakia. A more detailed commentary may be
found in: J. Cornides, “Human Rights Pitted Against Man,” International Journal of Human
Rights 1/2008, 107-34. The mandate of this Network has meanwhile ended, but its mem-
bers have found other places where they continue providing “expertise.” For example, the
Network’s president, Prof. Olivier de Schutter, has been appointed to the post of UN Special
Rapporteur for the Right to Food, whereas another former member of the Network, Morten
Kjaerum, has been appointed Director of the new EU Agency for Fundamental Rights (FRA)
seated in Vienna. As it turns out, this FRA is set to become an upgraded version of the “Ex-
perts Network:” it has a stronger institutional role, is endowed by a bigger budget, supported
by permanent staff, and on top of it all the same closed shop of unaccountable “experts”
promoting their radical social agenda, i.e., abortion and same-sex-marriage. As a first step,
FRA has created a new “Fundamental Rights Agency Legal Experts Group” (FRALEX), the
composition of which is nearly identical to that of the Network. The very first activity of this
newly constituted group was the drafting of a study on “Homophobia and Discrimination
on Grounds of Sexual Orientation in the EU Member States,” which was published in June
2008. The findings of that study were foreseeable.
61 This necessity to inform vulnerable groups about novel rights they are not aware of,
and to empower them to use such rights, is a recurring theme in the contemporary human
rights discourse. Cf. Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,”
251: “it is the evolution of human rights interpretations and applications, stemmed by in-
creased sophistication, women’s empowerment and changing times, which have given force
to women’s human right to abortion.”
62 Cf. Michael O’Flaherty and John Fisher, “Sexual Orientation,” 218: “ … a lack of
education programmes to combat discriminatory attitudes;” Ibid., 226: “States are obliged
to undertake effective programmes of education and public awareness about human rights
and must otherwise seek to enable people to fully enjoy their entitlements;” Ibid., 235: “ …
promotion of a human rights culture by means of education, training and public awareness-
raising;” Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 258: “…
increased access to family planning services and education;” Ibid., 274: “promote adolescent
health, including by providing sexual and reproductive health education in schools.” It
should be noted that education in this context means compulsory education (it is thus not a
International Organizations Law Group • Legal Studies Series • Number Two 25
Part IV: Abortion, Homosexuality and the Natural Law of Morality

Such academic elitism is in itself neither wrong, nor illegitimate. It

belongs to the essential characteristics of human rights that they are pre-
existent to positive legislation, can neither be adopted nor abrogated by a
democratic vote, but exist independently of any human will. If that is so, it
is perfectly possible that a human right exists despite not being recognized
or respected in a majority of countries, or despite not being considered as
such by a majority of persons. It is also perfectly possible that one or two
experts know better than the rest of the world. Human rights are not the
result of opinion polls.

However, the opposite could also be true: the experts could be wrong,
and the rest of the world could be right. It could be that, despite the advocacy
of Ms. Zampas and Ms. Gher, a fetus does have a right to life, and its mother
has no right to kill it. It could be that, despite the expertise of the drafters
of the YP, homosexuality is a deviant behavior, or a psychological or mental
disorder, and should be treated as such. And even if the whole world, experts
and non-experts alike, were unanimous on a “right,” it could nevertheless
be a wrong. There were times when slavery existed in all countries of the
world; today it is considered a fundamental human rights violation. There
were times when abortion and homosexuality were strictly prohibited in all
European countries; today many countries have legalized these practices.
There was a time when the death penalty was in use throughout Europe;
today there is a Protocol to the ECtHR obliging States to abolish it.

Whoever defies prevailing opinions through courageous elitism must

explain what makes them believe to know better. What is the general ap-
proach that allows them to consider their cause a just one? What is the
methodology? What the criteria?

With regard to Zampas/Gher and O’Flaherty/Fisher, two answers are

possible. Either the authors consider human rights to be some kind of a
political power game, in which anyone, in order to promote and defend
whatever they subjectively perceive to be in their interest, is allowed to in-
strumentalize the language and institutions of human rights, including by
stealth tactics63 — or they believe in the existence of Natural Law or some
kind of objective truth to which their views correspond.

right, but a duty, to receive such education), which young people must undergo irrespective
of whether their parents share the moral values underlying these education programs.
63 See n. 9 above.

26 International Organizations Law Group • Legal Studies Series • Number Two

 Part IV: Abortion, Homosexuality and the Natural Law of Morality

In the first case, a further discussion of their views would be impossible

and, at the same time, unnecessary: it would suffice to note that they advo-
cate abortion because they receive their salaries from the abortion lobby,
or militate for the same-sex rights agenda because they belong to the LGBT
lobby. But at the same time, they would have to accept that their opponents
(who work for the opposing lobbies) militate for the opposite, and that all
arguments enjoy the same legitimacy. Speaking of human rights would be
nothing more than a strategy to manipulate a gullible public. The discussion
could stop here: there would be a mere conflict of interests, not a question
of right and wrong, and in the end the stronger party, or the party with the
cleverer tactics, would prevail.

In the second case, by contrast, a discussion remains possible. Under

Natural Law we understand a set of ethical precepts that exists outside posi-
tive law and to which positive legislation, if it is not to be called abusive, must
conform. This Natural Law is supposed to correspond to human nature,
and to be accessible to reason — provided, of course, that this reason is not
obscured by the desire to manipulate the law in one’s own interest.

Let us then assume that Zampas/Gher and O’Flaherty/Fisher believe

in Natural Law, even if, regrettably, they do very little to explain how their
respective positions follow from it.64

This is the common ground on which we can meet and discuss.

Dismissing “Fetal Claims to the Right to Life”

Abortion means to voluntarily terminate an unwanted pregnancy by
destroying the fetus in the womb of a pregnant woman.

People wishing to justify abortion usually rely on two arguments to

answer the uncontested fact that each human being has a right to life. The
first says that the fetus is not (yet) a human being — therefore destroying
it is not prohibited. The second argument consists in saying that, even if
the fetus is a human being, and thus has a right to life, compelling reasons
exist to give women the right to choose abortion, which then trump the

64 This omission does make a discussion of their views somewhat difficult: what is not
explained cannot be rebuffed. The commentary is on positions that Zampas/Gher and
O’Flaherty/Fisher have not openly pronounced, yet seem implicit in their reasoning.
International Organizations Law Group • Legal Studies Series • Number Two 27
Part IV: Abortion, Homosexuality and the Natural Law of Morality

fetus’ right to life. Such reasons may be that the pregnant woman’s life or
health are at risk, or that the pregnancy in question was the result of an act
of sexual violence, or that the woman is under economic strain and can-
not afford to have a child, or that the woman’s plans for her own life take
priority over her child’s, etc.

This second set of arguments is easily dismissed. It is generally known

that life must be the highest ranking right in any legal order (because, by
taking a person’s life, one negates all his other rights at the same time),
so that in a conflict of values life will usually be given priority over other
values, as long as that life is to be considered innocent, and killing it not an
act of legitimate self-defense against illegal aggression. Who could be more
innocent than an unborn child? It is therefore completely self-evident and
requires no further explanation that, once the unborn child is understood
to be a human being, no other circumstance than one in which a choice
must be made between the life of the child and the life of the mother can
ever justify abortion.

Taking a closer look at the first group of arguments, we see that in order
to determine who is to be considered human and who is not (yet) human, a
wide array of different criteria is used. In Roe v. Wade, the seminal case of the
US Supreme Court,65 the criterion was time: the pregnancy was simply divided
into three trimesters, and the question whether and to what extent the State
could regulate abortion was made dependent on how far the pregnancy was

65 Roe v. Wade, 410 US 113 (1973). Contrary to Europe, where abortion has been liberal-
ized in most countries through the adoption of new legislation (and could, therefore, be
restricted through new legislation), no law, whether federal or at state level, was ever adopted
in the US to liberalize abortion. Instead, the shift came about through the Roe v. Wade deci-
sion, according to which legislation restricting abortion was unconstitutional. It is therefore
not possible to prohibit abortion at state level (even if many states would wish to do so,
and even if, in certain states, popular opinion would be overwhelmingly in favor of such
restrictions), whereas at federal level it could be done only through a constitutional amend-
ment. (An amendment to the United States Constitution must be ratified by 3/4 of the state
legislatures, or of constitutional conventions specially elected in each of the states, before it
can come into effect.) In short, Roe v. Wade, by bringing forward a novel interpretation of an
old constitutional law, has created a formidable obstacle to such restrictions; what this case
shows is that novel interpretations of existing provisions can be by far more efficient than
legislative processes as a means to push certain political agendas — even against the will of
the broader public. It is obvious that pro-abortion pressure groups, such as CRR, want to
use the international human rights texts such as the Universal Declaration of Human Rights,
the Convention on the Elimination of All Forms of Discrimination Against Women, and the
European Convention on Human Rights to promote their agenda in the same manner.

28 International Organizations Law Group • Legal Studies Series • Number Two

 Part IV: Abortion, Homosexuality and the Natural Law of Morality

advanced.66 Given the evident arbitrariness67 of such a cut-off date (because no

reason at all was given why on a given moment during the pregnancy a fetus
should have become a human being, whereas a quarter of an hour before it
should not yet have been one), it was thought necessary to find more pertinent
criteria, such as the “viability”68 of the fetus (i.e., whether, in case of a premature
birth, it could be expected to survive), or self-consciousness, or the ability to
feel and react to pain, and many more criteria which are not worth listing
here, since they all suffer from the same weakness: they are all too obviously
guided by the interest of providing convenient “justification” for abortion.
The arbitrary character of these criteria, which all aim at de-humanizing the
fetus, is easily discerned when they are tested elsewhere: we do not kill adult
people who have lost self-consciousness (e.g., because they are sleeping) —
why would then the lack-of self-consciousness of a fetus justify abortion? We
find killing people wrong not because it might cause them pain, but because
it takes their lives — why then would the fetus’ inability to feel pain serve as a
justification for abortion? In a similar vein, why would the fetus’ inability to
survive outside its mother’s womb justify abortion, if, in reality, every child
remains dependent on its mother’s care for years after its birth?

Obviously it is not one or more of the capabilities of the fetus (i.e.,

its ability to survive outside the uterus, to feel pain, to be self-conscious)
that must be seen as the decisive criterion, but its nature. The question is
whether a fetus is human, or whether it belongs to another species. Yet, it
is uncontested that the human fetus is human from the very moment of its
conception, as it comes into existence through the union of a human sperm
and a human ovum. It is in this moment that the unique genetic identity

66 Ibid. Following the decision: a State cannot restrict in any way a woman’s right to an
abortion during the first trimester; the State can regulate the abortion procedure during the
second trimester if such regulation serves the purpose of protecting the mother’s (not the
fetus’) health; and the State can choose to restrict or proscribe abortion as it sees fit during
the third trimester when the fetus is “viable.”
67 The arbitrariness of Roe v. Wade was recognized even by Justice H. Blackmun, the deci-
sion’s author. In an internal memorandum, he wrote: “You will observe that I have con-
cluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other
selected point … is equally arbitrary.”
68 Cf. Roe v. Wade: “Physicians and their scientific colleagues have regarded that event with
less interest and have tended to focus either upon conception, upon live birth, or upon the
interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the
mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months
(28 weeks), but may occur earlier, even at 24 weeks.” The “viability” criterion is still in effect
today, although the point of viability has changed as medical science has found ways to help
premature babies survive.
International Organizations Law Group • Legal Studies Series • Number Two 29
Part IV: Abortion, Homosexuality and the Natural Law of Morality

of a child is created. From that moment, the fetus does not pass through
different stages of evolution — from amoeba to homo sapiens — but is,
and remains human throughout gestation. For natural science, therefore,
it is clear that the human being must be seen as such from the moment of
conception, if “being human” is not to become a status that is conferred
by politicians through co-optation. Accordingly, if positive legislation is to
be brought into conformity with scientific reality outside the legal order,
it must provide to the fetus full protection from being killed, like it must
protect the life of any adult person. From the perspective of Natural Law,
only one criterion is decisive: what the fetus is, not what we want it to be.
And since it is a human being, only one conclusion is possible: abortion is
not a “right,” but the opposite of one.

Without doubt, readers may be curious to know which one of the two
arguments set out above has been used by Zampas/Gher, who have written
not less than 46 pages to demonstrate that abortion is a human right. The
surprising answer: neither of the two.

They give no explanation why the fetus has no right to life, except to say
that “historical analyses of the UDHR, ICCPR (International Covenant on
Civil and Political Rights) and ICRC (International Convention on the Rights
of the Child) — the major international human rights treaties conferring
the right to life — confirm that that right does not extend to fetuses,”69 and
note (with visible satisfaction) that “foetal claims to the right to life brought
to the European human rights system have largely been ineffective.”70 Setting
aside any doubts with regard to the accuracy of these “historical analyses,”
such reliance on the exegesis of a legal text on a question that concerns the
ontology of the human species is by itself an absurdity. Reading this line
of reasoning by Zampas/Gher, one can only come to the conclusion that
nobody enjoyed a right to life prior to 1948, when the UDHR “conferred” it
to everyone (except, of course, to fetuses).71 Reality is ignored — or simply
superseded by the legislative will. This attitude and approach darkly mirrors
that of the Roman Emperor Caligula, who planned to appoint his best horse

69 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 262.

70 Ibid., 264.
71 Ibid., 262. As Zampas/Gher point out, “the first pronouncement of the right to life,
Article 3 of the UDHR, specifically limits that right to those who have been ‘born.’ In fact,
the term ‘born’ was intentionally used to exclude the foetus or any other antenatal applica-
tion of human rights.”
30 International Organizations Law Group • Legal Studies Series • Number Two
 Part IV: Abortion, Homosexuality and the Natural Law of Morality

consul,72 or of the Persian King Xerxes, who ordered the sea to remain calm
while he was crossing it and, when the sea did not obey, had his soldiers
chastise it with whips and scourges.73 What this kind of legal positivism fails
to understand is that the natural fact that a human fetus is human does not at
all depend on what the UDHR or any other legal instrument says (or omits
to say) about it. The argument would sound more reasonable if it went in
the opposite direction: if the “historical analyses” quoted by Zampas/Gher
were accurate, it is the human rights treaties which would need to be adapted
in order to ensure that they conform to reality.

Zampas/Gher fail to provide any substantial reasons for their position

that the fetus is not a human being, except a mere quis-dixit-argument: be-
cause the UDHR, or the ECHR, does not explicitly confer human rights on
fetuses, they are not human. The ambivalence of this interpretative approach
is self-evident, for it could be turned around and used against Zampas/
Gher: it could be said that because the UDHR does not explicitly foresee
a right to abortion, such a right does not exist. Yet Zampas/Gher say that
this right exists despite not being mentioned in any international treaty; it
is, it seems, precisely for this reason, that their employer CRR would strive
for “the adoption of a new international treaty”74 to enshrine such a right,
if that were realistic. In other words, the authors base their views on legal
positivism when they find it convenient, but they reject that same positivism
when it is unhelpful to their cause.

Having, in this somewhat simplistic way, attempted an explanation at

why the fetus might not have a right to life, it is no wonder that Zampas/
Gher see no need to explain why the rights of a woman seeking abortion
should enjoy priority over the right to life of a fetus. Their position is of
a truly intimidating simplicity of spirit: the unborn child has no rights at
all, and the woman has many rights. Why? For the sole reason that, as they
believe, “in the context of abortion, the UDHR limits the right to life to
women and girls.”75

Under these circumstances, no point is served in further examining the

other assertions made by Zampas/Gher on women’s rights, or the creative
interpretations made by these and other authors that delude them to find

72 Suetonius, The Lives of Twelve Caesars, 55.

73 Herodotus, Histories, VII, 35.
74 Cf. Congressional Record, December 8, 2003, E 2535, E 2538.
75 Christina Zampas and Jaime M. Gher, “Abortion as a Human Right,” 263.
International Organizations Law Group • Legal Studies Series • Number Two 31
Part IV: Abortion, Homosexuality and the Natural Law of Morality

in these rights a right to abortion which does not exist in positive law. The
methodology used to make these assertions is fundamentally and entirely
flawed and self-contradictory: 1) it relies in part on an absurdly rigorous legal
positivism (the sole reason why an unborn child has no right to life is that
the UDHR does not explicitly say so); 2) in part on an equally absurd and
fluid pretension of “consensus;” and 3) in part on what must be described
as nonsense camouflaged as a travesty of Natural Law,76 depending on what
seems convenient to the authors. Apparently, any and every argument is good
enough, if it serves the purpose.

The notable absence of any proper methodology in the reasoning of

Zampas/Gher, as well as the predictable feminist mantra underlying their
repetitive insistence on women’s rights (as opposed to human rights, which,
gender neutral and universal, should extend to the entire species),77 could
be called laughable, if it were not accompanied by tragic consequences —
especially for women. It suffices to say that, according to a recent United
Nations Population Fund (UNFPA) State of the World Population Report,78
prenatal sex selection, abortion and female infanticide have resulted in at
least 60 million “missing” girls in Asia, creating gender imbalances and
other serious problems that might have far reaching consequences for
generations to come. As it turns out, it is women who are the primary
victims of abortion.
76 This type of makeshift Natural Law is used where legal positivism does not yield the
right results. One example is that, while the right to life of the child is silently passed over,
the right to abortion is deduced from women’s right to life, because, if abortion is illegal,
women might use illegal abortion, which might be less safe, so that they might die from it.
Three hypothetical assumptions on what might happen if a woman has no access to safe and
legal abortion are sufficient to outweigh, as it seems, the hard fact that a fetus, as a human
being, is entitled to the enjoyment of human rights.
77 From this approach, it follows that not only has the fetus no rights, but also the “right
to decide freely and responsibly the number and spacing of one’s children and the right to
privacy,” which Zampas/Gher (“Abortion as a Human Right,” 287) consider a “human right,”
is in actual fact provided to women alone. The father has no such right; he can neither
demand nor prevent the abortion of his offspring. It is very strange for a “human right” to
exist only for persons of one sex.
78 Cf. Sherry Karabin, Fox News, Wednesday, June 13, 2007: “Infanticide, Abor-
tion Responsible for 60 Million Girls Missing in Asia,” http://www.foxnews.com/sto-
ry/0,2933,281722,00.html (accessed December 15, 2009). The UNFPA State of the World
Population Report 2006 – A Passage to Hope, 24, actually speaks of “as many as 100 million
‘missing’ women and girls — eliminated through prenatal sex selection and infanticide.”
Among the sources quoted by UNFPA were: United States Department of State, Trafficking
in Persons Report: June 2005, 20; I. Attane, and J. Veron eds., Gender Discrimination among
Young Children in Asia (Centre Population et Development, Pondicherry, India).
32 International Organizations Law Group • Legal Studies Series • Number Two
 Part IV: Abortion, Homosexuality and the Natural Law of Morality

A Novel Doctrine on Sex, Marriage, and Families

“Non-discrimination” appears to be the basic principle underlying the
YP. According to Principle 1, “human beings of all sexual orientations and
gender identities are entitled to the full enjoyment of all human rights”.
The remaining YP (Principles 2-28) aim at spelling out what the authors
derive from this non-discrimination principle with regard to a number of
specific human rights, such as the right to life, the right to work, the right
to a fair trial, etc.

Without doubt, a principle affording all human beings an entitlement

to the protection of all human rights is something with which no seriously-
minded person can disagree. However, it should be noted that all existing
human rights instruments, for example the UDHR and the ECHR, already
acknowledge that all the rights they recognize are enjoyed by all without
discrimination. Why, then, are the YP needed? Are they not just repeating
the self-evident?

The authors of the YP would probably reply by saying that the YP are
needed because gay, lesbian, and transgender people are particularly vul-
nerable. This vulnerability is evidenced by the numerous cases quoted in
the O’Flaherty/Fisher article, where gay and lesbian people have suffered
violence or faced discrimination. These cases are certainly regrettable, and
whoever reads them cannot but feel pity for the victims. However, the
violence, humiliation, social exclusion, etc., reported by O’Flaherty/Fisher
would be unacceptable not only regarding gays or lesbians, but regarding
everyone. Moreover, in most of the cases reported, these “violations” have
been committed by private persons, not by States. It is therefore not clear why
a State should sign up to any of the 127 “States-shall” clauses contained in
the YP. The rights that could be invoked by the victims are already protected
through legally binding instruments (such as the ECHR or the UDHR). Why
should these be duplicated? Is it not patronizing to say that homosexuals,
too, have a right to life, if the right to life of everyone is already recognized
in the UDHR? If a State fails to protect or enforce the rights enshrined in
the UDHR, why would it enforce the YP? Does it really help to multiply
legislation (or, in this case, self-serving interpretations of legislation) if the
real problem is lack of enforcement? Finally, it is not clear what the imple-
mentation of a right to adopt children for homosexuals or the introduc-
tion of same-sex-marriages have to do with the above-mentioned violence
against homosexuals, or how they could contribute to reducing or ending
International Organizations Law Group • Legal Studies Series • Number Two 33
Part IV: Abortion, Homosexuality and the Natural Law of Morality

it. It thus seems that the regrettable incidents highlighted by O’Flaherty/

Fisher serve them as a mere pretext to call for measures that will not protect
victims of hatred and violence, but instead impose a novel system of values
on society. It could well be that this strategy will generate more violence
and hatred against homosexuals instead of more tolerance for them: while
there appears to be, at least in Western societies, tolerance for homosexual-
ity if it is kept private, there is certainly much less acceptance for the idea
of accepting the homosexual lifestyle as “equivalent,” and promoting it in
public. The reported cases where public Gay Pride events have met hostile
reactions seem to confirm this.

Whoever takes the time to examine the YP more closely will find that,
despite the assertion in Principle 1, the text does not reaffirm the exten-
sion of the well-known and generally accepted human rights to gays and
lesbians. Instead, it uses the sufferings of homosexual victims of violence to
advance (in a somewhat insidious way) novel and unusual interpretations
of these human rights, which, in final effect, give them a completely new,
radical meaning. In other words, the YP do not, as O’Flaherty/Fisher claim,
“identify the (currently existing) obligations of States,” but seek to surrepti-
tiously introduce new obligations to which no State has ever committed.79

This is not the place to comment on the entirety of the YP. Perhaps the
one Principle which provides the most obvious example of how the current
meaning of a term frequently found in legal texts is in part subverted, in
part turned into its exact opposite, is Principle 24:

Everyone has the right to found a family, regardless of sexual

orientation or gender identity. Families exist in diverse forms. No
family may be subjected to discrimination on the basis of the sexual
orientation or gender identity of any of its members.80

79 For a more detailed comment, cf. Piero A. Tozzi, Six Problems with the “Yogyakarta
Principles,” International Organisations Research Group Briefing Paper No. 1, 2007,
available at http://www.c-fam.org/docLib/20080610_Yogyakarta_Principles.pdf (accessed
December 15, 2009). Tozzi argues that the YP, instead of protecting human rights, subvert
them, inter alia, by undermining the freedom of speech, the freedom of religion, and the
right of parents to educate their children. In addition, they encourage (physically, psycholog-
ically and morally) unhealthy choices and fail to provide objective standards for evaluating
conduct.
80 YP, Principle 24.

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 Part IV: Abortion, Homosexuality and the Natural Law of Morality

Once again, the right of everybody to found a family (provided, of

course, he or she has the biological capability for doing so) is a right that is,
as such, universally recognized.81 It is also true that no family should become
the victim of discrimination. But the YP add a new element by asserting that
“families exist in diverse forms.” Vague and imprecise as it is, this assertion
completely dissolves the natural and universally accepted meaning of the
term “family” (i.e., one man and one woman united in a stable marriage,
and their natural progeny), replacing it through an artificial concept. “Fam-
ily,” by this artifice, would be whatever the legislator chooses to call by that
name. It would not be something that corresponds to human nature, but a
purely legal construct, which could include same-sex marriages as well as
polygamous set-ups, or even the relationship between, for example, three
men and five women and their natural or adoptive children. The relationship
between parents and children would be equally artificial: as the authors of
the YP explain, Principle 24 means that “laws and policies [should] recog-
nise the diversity of family forms, including those not defined by descent or
marriage,”82 (but what, if descent or marriage, does not define a family?) and
“ensure the right to found a family, including through access to adoption or
assisted procreation (including donor insemination), without discrimination
on the basis of sexual orientation or gender identity.”83 This appears to be
based on the assumption that adoptions have the purpose of catering for or
servicing the “right to have children” of parents-to-be, even if these parents
are single, or not married to each other, or two persons of the same sex. Yet,
traditionally, the purpose of adoption is the direct opposite: to find caring
parents for a child that has lost its own parents, not to provide an “artificial”
family with a child it otherwise would be unable to have.84

Strangely, the YP only explain what a family is not: not defined by

descent, nor by marriage. This is in defiance of what the near totality of
mankind traditionally believes and accepts — yet the YP drafters do not
even seem to have found it necessary to explain what, in their view, defines
a family.85 The dissolution of terms like “family” and “marriage” and their

81 Cf.: Art. 16 UDHR, Art. 12 ECHR.

82 YP, Principle 24. (emphasis added)
83 Ibid.
84 ECtHR, Fretté vs. France, Application 36515/97, par. 42: “Adoption means ‘providing
a child with a family, not a family with a child,’ and the State must see to it that the persons
chosen to adopt are those who can offer the child the most suitable home in every respect.”
Conspicuously, the YP do not waste even a thought on the needs and the rights of the adop-
tive child, or on whether it is healthy for a child to grow up in a homosexual environment.
85 The traditional meaning of marriage and family is reflected in Article 16 of the UDHR.
International Organizations Law Group • Legal Studies Series • Number Two 35
Part IV: Abortion, Homosexuality and the Natural Law of Morality

replacement with novel constructs is a necessary step in the strategy that

surreptitiously seeks to open the doors for same-sex marriages. While this
motivation remains hidden,86 the YP fail to give any explanation why their
constructivist approach should be more appropriate than the realistic one
they seek to replace. But this is a question that should be answered by an-
thropologists rather than lawyers, because a new anthropological paradigm
is what the YP seek to advance.

Anthropology Re-invented. The new paradigm denies human nature

and replaces it with “self-determination.” If family is not defined by marriage
and descent, the only remaining way to define it is by a normative act: nature
cedes its place to the arbitrary decisions of law-makers. In the end, every
constellation of two or more people can be called a family. This “inclusive,”
“non-discriminatory” understanding of the term “family” looks benign
at first sight — but in reality it means to discard the insight that marriage
and family have something to do with nature. Once this step is taken and
the connectivity between law and reality forgotten, it would, in theory, be
no problem, in a further step, to exclude the natural family from the legal
definition of family. If this route is followed to its logical end, we might wind
up in constructed relationship units, similar perhaps to the “phalanstères”
invented by Charles Fourier.

Against this voluntaristic approach, there are some observations to be

made that seem fairly common sense, if not self-evident.

Paragraph 1 of that Article foresees that “men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to found a family.” The ap-
proach to give that right (contrary to other rights listed in the Declaration) not to “every-
body,” but to “men and women of full age,” is a deliberate one: it excludes marriages between
minors, and same-sex marriages. The notion that marriage is the foundation of a family is
clearly enshrined in this provision. Article 24 of the YP thus stands in open contradiction to
the UDHR.
86 It is for purely strategic reasons that the YP stop short of affirming an obligation
for States to introduce same-sex marriage and content themselves with the demand that
same-sex unmarried partners should receive the same rights and benefits as different-sex
unmarried partners. The true intention of the YP drafters is revealed by a statement made
by Michael O’Flaherty in an address delivered to, the International Gay Lesbian Association
(ILGA), in Vilnius on October 26, 2007: “Of course the Yogyakarta Principles are not perfect.
In the first place they do not include references many people would want to see in inter-
national law, for instance regarding same-sex marriage. This is because of the cautious ap-
proach of just expressing what the law now is, rather than where we might like to see it go.”

36 International Organizations Law Group • Legal Studies Series • Number Two

 Part IV: Abortion, Homosexuality and the Natural Law of Morality

The first is that the essential biological function of sexuality is to ensure

the procreation and continued existence of the human species. It follows
that a sexual urge directed at objects other than persons of the other sex of
an age suitable for procreation is misguided and does not serve its natural,
rational purpose. This applies — dare it be said — equally to homosexual
urges as to pedophile or sodomite tendencies.87 Considering homosexual
relations as equal to marital relations therefore pre-supposes that the mutual
procurement of sexual pleasure is the one and only function of sexuality,88
while the fundamental purpose of procreation is completely discarded. If
this reductionist and distorted view of sexuality is accepted, no argument
is left to explain why pedophilia or sexual relations with animals might not
also be considered equivalent.

Gay/lesbian rights activists will predictably react with a cry of rage at

what they will view as a denigrating attempt to represent homosexuality
and pedophilia as one and the same thing (though no such attempt is made
here). They will argue that homosexuality between adults is consensual,
whereas sexual relations with under-age children are not. That may be true,
but it misses the point: it remains that homosexuality and pedophilia are
both based on a sexual urge aimed at objects biologically incapable of pro-
creation. Moreover, it should not go unremarked upon that the argument
that anything becomes acceptable if it is only based on (verifiable) consent
of all the persons involved could easily be used to justify (homosexual) sex
with minors. The drafters of the YP, commenting on Principle 24, in fact
take the first step in that direction: “in all actions or decisions concerning
children … the best interests of the child shall be a primary consideration,
and … the sexual orientation or gender identity of the child or of any family
member or other person may not be considered incompatible with such best

87 In a sense, the sexual urge could be compared to sentiments of hunger and thirst. We
have these sentiments to incite us to eat and drink; without them, we would at all times be
at risk of starving amidst plenty of food. It is therefore of vital importance to be capable of
feeling hunger and thirst. At the same time, it would obviously be unhealthy if these feelings
were directed at inappropriate (in this case inedible) objects.
88 The alleged “equality” between homosexual and heterosexual relations would thus
consist in the equal amount of pleasure that can be drawn from it. This, however, meets the
important counter-argument that sexual pleasure is a purely subjective and therefore not
verifiable sentiment. The same applies to feelings of “love.” The status of marriage is not a
“reward” for the mutual love of the spouses, or the sexual pleasure they mutually procure,
but has the purpose of providing a stable environment for founding a family and rearing
children, http://www.yogyakartaprinciples.org/principles_en.htm (accessed February 1,
2010).
International Organizations Law Group • Legal Studies Series • Number Two 37
Part IV: Abortion, Homosexuality and the Natural Law of Morality

interests”.89 If it is acceptable for a child to be of homosexual orientation, why

would it be wrong for it to engage in consenting sexual intercourse? After all,
Principle 24 implies “that a child who is capable of forming personal views
can exercise the right to express those views freely, and that such views are
given due weight in accordance with the age and maturity of the child.”90
What level of “maturity” is, according to the YP drafters, needed to engage
in homosexual sex? They do not say. But probably they do not mean such
maturity as would be needed to found a family and raise children.

In addition, the novel anthropology of O’Flaherty/Fisher suffers from

some glaring self-contradictions. For example, they deplore that transgendered
individuals have “been referred to by health professionals as ‘thing’, ‘it,’ or ‘not a
real man/woman,’”91 while at the same time they point out that “the notion that
there are two and only two genders” is a cultural bias (i.e., not a biological real-
ity), and the result of “binary Western thinking”92 regretting that transgendered
people have to “pay the cost of our confusion by their suffering.”93 But if there
are more than two genders, there must be at least one that is neither male nor
female, and health professionals should be allowed to say so; if, by contrast, the
authors opine transgender people should not be told that they are not a real
man/woman, this seems to suggest that a transgendered person must be either a
man or a woman; otherwise, what would be wrong in telling them that they are
not? As it seems, the authors themselves believe there are only two genders. Why,
then, is the “binary” Western thinking confused? Also, it is argued that defining
one’s own sex is “one of the most basic essentials of self-determination,”94 while
on other occasions it is assumed that homosexuality is immutable,95 and not
accessible to any therapy or modification. Again, only one of the two assump-
tions can be true: if defining one’s own sex is the result of self determination, it
must be the result of a deliberate and conscious choice and cannot at the same

89 YP, Principle 24.

90 Ibid.
91 Michael O’Flaherty and John Fisher, “Sexual Orientation,” 212.
92 Ibid., 209.
93 Ibid. The report from which O’Flaherty/Fisher, somewhat uncritically, draw this quota-
tion has been published by the Canadian organization Egale Canada Human Rights Trust.
Whose “confusion” is meant here? It should be noted that John Fisher himself served as
Executive Director of that organization for eight years.
94 Ibid., 221, approvingly quoting from a judgment of the ECtHR.
95 A comprehensive study of the “immutable status argument” (albeit concerned more
with its strategic value than with its veracity) is found in: Robert Wintemute, Sexual Orien-
tation and Human Rights (Oxford: Oxford University Press, 1995). Prof. Wintemute is one of
the drafters of the YP.

38 International Organizations Law Group • Legal Studies Series • Number Two

 Part IV: Abortion, Homosexuality and the Natural Law of Morality

time be immutable. It appears that in this novel anthropology of O’Flaherty/

Fisher there is not much certainty: any affirmation is as true as its direct opposite,
provided, of course, that it helps to promote the agenda.

Reading all the arguments brought forward by O’Flaherty/Fisher, one

must conclude that what is aimed at is not just to ensure more tolerance
and understanding for a group of people at the margins of society without
affecting the lives of the majority. Quite on the contrary, it seems that the
homosexual ideology wants to impose a new paradigm on society, dis-
solving not only the concepts of family and marriage, but also the notion
that there are two, and only two, biological sexes, replacing it by a novel
doctrine according to which any person could freely chose any sexual
identity at any time. Yet this would affect the lives of all and everyone
in a way that most people probably are not even capable of imagining:
nobody would be allowed anymore to accept simply being a man or a
woman, and live and behave accordingly. We would all have to adjust our
social behavior to the new doctrine. Our language, the way we educate
children, normal relations between the sexes would be in perpetual flux
because individual “sexual identity,” in the authors’ paradigm, is subject
to constant change. Under this paradigm of permanent transience, even
love would become an impossibility: for love by its very nature aims to
be definitive, not transient.

Is Homosexuality Normal? The second remark concerns the way in

which Western societies’ view of homosexuality has evolved over the last
century. Traditionally, homosexual sex was considered a moral perversion
or, in religious terms, a sin.96 This view appears to continue to prevail in
non-Western, especially Islamic, societies. It was only under the influence
of Freud that, in Western countries, a more permissive view was taken: the
view on the immorality of homosexual orientation was re-formulated as a
recognition of a mental disorder for which those affected by it were not to

96 This view seems to follow from an approach that focuses on the objective action rather
than on the subjective situation of homosexually oriented persons. Today, the Catechism
of the Catholic Church (2357, 2358) takes a more differentiated position: while it reminds
that “tradition has always declared that homosexual acts are intrinsically disordered,” and
that such relations are “contrary to the natural law,” it also acknowledges that “the number
of men and women who have deep-seated homosexual tendencies is not negligible. This
inclination, which is objectively disordered, constitutes for most of them a trial. They must
be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in
their regard should be avoided.”

International Organizations Law Group • Legal Studies Series • Number Two 39

Part IV: Abortion, Homosexuality and the Natural Law of Morality

be held morally responsible.97 As such, homosexuality figured for many years

on the World Health Organization (WHO) list of diseases, until it was, for
somewhat unclear reasons, withdrawn from that list in 1990.98 Since then,
the code of political correctness has exerted considerable pressure to speak
of homosexuality as normal and equal, rigorously sanctioning those who
continue describing it either as a disorder or as sinful.99 Besides the obvious
implications this may have for freedom of speech, the immediate conse-
quence is that those homosexuals who suffer from their condition and who
want to be cured from it are not allowed to look for any such cure: they are
told that homosexuality is one of many different sexual orientations a human
person can be born with, all of which are normal, and that it is immutable.

97 In a letter he wrote in 1935 to the mother of a homosexual man, Freud expressed his
view that homosexuality “is assuredly no advantage, but it is nothing to be ashamed of,
no vice, no degradation, it cannot be classified as an illness”; he went on saying that “we
consider it to be a variation of the sexual function produced by a certain arrest of sexual
development.” He also hinted, albeit cautiously, at the possibility of treatment: “By asking
me if I can help, you mean, I suppose, if I can abolish homosexuality and make normal
heterosexuality take its place. The answer is, in a general way, we cannot promise to achieve
it. In a certain number of cases we succeed in developing the blighted germs of heterosexual
tendencies which are present in every homosexual, in the majority of cases it is no more
possible. It is a question of the quality and the age of the individual. The result of treatment
cannot be predicted.” Sigmund Freud, “Letter to an American mother,” American Journal of
Psychiatry, 107 (1951): 787.
98 Cf. World Health Organization, International Statistical Classification of Diseases and
Related Health Problems, 10th Revision (ICD 10). In the previous version of that document
(ICD 9), which was published in 1977, homosexuality and lesbianism were included in a list
of “neurotic, personality, and other non-psychotic mental disorders.”
99 Specific legislation prohibiting such assertions has been adopted in several countries
and is enforced zealously. Among the primary targets of such legislation are the clerics of
Christian churches who continue preaching or applying their churches’ traditional doctrine.
For example, on June 29, 2004 a Swedish law court sentenced Pastor Åke Green to one
month in jail for showing “disrespect” to homosexuals in the sermon he delivered from his
pulpit in the small town of Borgholm, Sweden, on July 20, 2003. Full documentation of the
case, which finally ended with Pastor Green’s full acquittal by the Supreme Court, is found
at http://www.akegreen.org (accessed December 15, 2009). Another case concerned the
Rt. Rev Anthony Priddis, a Bishop of the Church of England, who, in February 2008, was
convicted and fined £ 47.000 in damages for “unlawful discrimination on sexual grounds”
to an openly gay person whom he had refused to appoint to the post of Diocesan Youth
Officer in his diocese. Even elected parliamentarians do not enjoy freedom of speech any
more: in January 2007, Christian Vanneste, member of the French Assemblée Nationale, was
sentenced to pay a fine of € 3,000, and 10.500 in compensatory damages, for having stated
that “if homosexuality were generally practiced, it would pose a danger for the survival of
humanity,” and that “homosexuality was inferior to heterosexual relations.”

40 International Organizations Law Group • Legal Studies Series • Number Two

 Part IV: Abortion, Homosexuality and the Natural Law of Morality

But this begs the question: what concept of “normality” is included in

the assertion that homosexuality is normal? And what concept of “equality”
is asserted by those insisting that homosexuality is equal?

This novel regard on homosexuality certainly holds no better sci-

entific credentials than the old one. If homosexuality is genetically pre-
determined, it should be possible to identify a “homosexual gene,”100 or
to find some homosexual toddlers. And if it is immutable, it should be
possible to disprove the claims of former homosexuals who say that they
have been cured from it.101 And even if nobody had ever made such a
claim to have been cured from homosexuality, this would no more prove
the immutability of the homosexual orientation than the lack of success
in finding a cure proves the incurability of HIV/AIDS: it might just mean
that some more research should be undertaken. Last, but not least, neither
genetic pre-determination nor immutability, if evidenced, would necessar-
ily mean that homosexuality was not a mental disorder. There are many
disorders and illnesses that are genetically pre-determined, and there are
many others that are immutable.

In the current situation, there are at least some very good reasons
to believe that homosexuality is neither immutable nor genetically pre-
determined, but that it is induced through socio-environmental influences
at an early age, and that, in principle, a therapy could be developed to
reverse it. As long as this remains a possible view, it seems natural that
parents should have the right to protect their children against such influ-
ences as could induce homosexuality, or that the state should not give
children to homosexual “adoptive parents.” After all, it is self-evident that
100 Arguments used to assert that homosexuality is genetically determined are, at times,
somewhat surprising. Some time ago, in the well reputed weekly news magazine The Econo-
mist (of October 11, 2003) an article appeared referring to some of the newest insights
of scientific research: among other things, researchers had discovered that a majority of
homosexuals had ring fingers longer than their middle fingers, whereas the opposite was the
case with heterosexuals.
101 From the abundance of both scholarly publications and autobiographic accounts
of (former) homosexuals, I quote just a few: Richard Cohen, Coming Out Straight — Un-
derstanding and Healing Homosexuality (2000); Joseph Nicolosi, Reparative Therapy of
Male Homosexuality (Northvale, NJ 1991); A Parent’s Guide to Preventing Homosexuality,
(2002); William Consiglio, Homosexual No More, Weaton, IL (1991); Gerhard J.M Van den
Aardweg On the Origins and Treatment of Homosexuality: A Psychoanalytic Reinterpretation,
(New York: Praeger, 1986); The Battle for Normality: Self-Therapy for Homosexual Persons
(Ignatius Press, 1997). However, it seems that therapies are not always successful and healing
successes, if and when they occur, can be fragile or transient.
International Organizations Law Group • Legal Studies Series • Number Two 41
Part IV: Abortion, Homosexuality and the Natural Law of Morality

the heterosexual orientation is the more desirable one: not only because
of the social isolation painfully experienced by many homosexuals (of
which O’Flaherty/Fisher provide ample evidence), but also because het-
erosexual relations, in addition to procuring sexual pleasure, are open
to procreation.

It has been suggested that whoever rejects the idea of considering ho-
mosexuality as normal and equivalent dismisses “the most personal and
intimate feelings of many millions of people.”102 But it is nonsensical to use
statistical frequency as a basis for making an argument as to the normality
of homosexuality, or of any other physical or, some would say, moral con-
dition. The norm is, in fact, that which never occurs in real life: for ethical
purposes, it is set by the man who never does wrong; with regard to health,
by the man who does not suffer even from the slightest illness (in that sense,
we all suffer from some greater or lesser “anomalities”).

In the absence of any other plausible yardstick to assess the normality

of a sexual orientation, the only remaining criterion is the one mentioned
above: the conformity of the urge with the primary purpose of sexuality
— that of procreation. The conclusion, then, can only be that homosexual
orientation is not normal.

Is Homosexuality Equal? A third remark concerns the notions of equal-

ity and discrimination increasingly invoked by the gay/lesbian campaign,
and which constitutes the cantus firmus of the YP.

Since the days of antiquity it has been considered to be the most fun-
damental precept of justice and fairness to treat like things alike, unequal
things differently, and all things appropriately. It follows that only the un-
equal treatment of equal cases, and not every case of unequal treatment,
can be viewed as discriminatory. Before deploring discrimination, one must
demonstrate the equality of what is unequally treated.

As we have seen above, the equality of the homosexual and the hetero-
sexual act is probably limited to the fact that both are apt to provide sensual
pleasure (though that is, of course, purely subjective). A certain equality
between the homosexual and the heterosexual orientation could consist in

102 Nicholas Bramforth, “Same-Sex Partnerships and Arguments of Justice,” R. Winte-

mute, Mads Adenas (eds.), Legal Recognition of Same-sex Partnerships: A Study of National,
European and International Law (Hart Publishing, 2001), 53.
42 International Organizations Law Group • Legal Studies Series • Number Two
 Part IV: Abortion, Homosexuality and the Natural Law of Morality

the fact that both are genetically determined — but only if that hypothesis
is finally proven. Apart from these elements, however, there is absolutely no
basis for arguing equality between homosexuality and heterosexuality, and
hence no reason to provide equal or similar treatment to both biological
phenomena.

By contrast, there are many obvious differences between the homosexual

and the heterosexual act, and hence many convincing reasons for unequal,
or different, treatment. The homosexual act is sterile, and its sole purpose
is to obtain sensual pleasure. The heterosexual act is open to procreation;
its natural context is therefore that of marriage and family — institutions
that are needed to create the environment for raising children, indeed the
“natural and fundamental group unit of society.”103 Therefore, it is natural
to provide these institutions for couples wishing to have children, whereas
it seems unnatural and absurd to create a “marriage” for two persons of
the same sex, who by nature cannot have any children. It seems equally un-
natural to allow, as of “equal right” or “equal treatment,” same-sex couples
to construct artificial families with children who have had the misfortune
of losing their natural parents prematurely, or who have been abandoned by
them. It is the natural situation for a child to have a father and a mother, and
anthropologists have found ample evidence that both are needed; families
from which either the father or the mother are absent, not as the result of
misfortune, but consequent upon a deliberate choice, and where either the
role of father or that of mother is duplicated, are best described not as a
family, but as a family’s parody.

It is thus no prejudicial statement toward homosexuality if we con-

clude that same-sex couples are not equal to the traditional family. That
conclusion would not change even if it were shown that homosexuality
was genetically pre-determined and immutable. Conferring the status of
marriage on homosexual couples would therefore not be equal treatment.
On the contrary, it would result in a discrimination of the natural family,
which fulfils a fundamental societal task that same-sex partnerships do not
fulfil. By asking for “equal treatment” the same-sex lobby is in fact asking
for a privileged status.

103 UDHR, Art. 16.

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Part IV: Abortion, Homosexuality and the Natural Law of Morality

Concluding Remarks on the Yogyakarta Principles. Not every

difference in treatment is discrimination. Given the fundamental difference
of homosexual and heterosexual behaviour, it is not discriminatory for
homosexuals to be denied access to legal marriage, or for States to prevent
minors from being exposed to propaganda about the homosexual lifestyle.
What can be called discriminatory are such inequalities in treatment where
the reference to homosexuality as a decisive criterion would be clearly in-
appropriate: however, it could be asked whether some law courts or treaty
monitoring bodies have not been acting somewhat over-zealously in their
crusade against possible discriminations.104

This being said, there can of course be no doubt that many of the inci-
dents mentioned in the O’Flaherty/Fisher article are violations of the rights
of homosexuals — not because the treatment they suffered was different or
discriminatory, but because it was inappropriate (which probably is a more
severe reproach). It is fundamentally unjust to put homosexuals in jail or
to threaten them with the death penalty — not because homosexuality is
equal, but because such sanctions stand in no relation to any harm that could
follow from two consenting adult persons engaging in gay sex.

At the same time, many of the cases reported relate to violence of pri-
vate persons.105 These could be addressed by using the existing remedies
provided for in the legislation of the countries concerned, or, if need be,
in existing human rights instruments. There is no need for a new human
rights instrument specific to homosexuals; it would suffice to remember

104 Of the cases quoted by O’Flaherty/Fisher in their article, several would merit a more
critical review. One example is the ECtHR decision Karner v. Austria (appl. no. 40016/98),
where it was found that a complainant’s “right to privacy” had been violated because he was
unsuccessful with his claim that, as surviving homosexual “partner,” he was entitled to take
over the rental contract for a deceased tenant’s apartment. The interpretation that was made
of Art. 8 ECHR was quite extravagant: in fact, nobody had violated the complainant’s pri-
vacy, but he himself had made public the fact of his homosexuality in order to draw a legal
advantage from it. Another example is the ECtHR case E.B. v. France (appl. no. 43546/02):
here, a lesbian complainant was successful with claiming that she had a “right to adopt
children” because French legislation foresaw such a possibility for unmarried persons, and
her lifestyle and sexual orientation could not be used as an argument for not allowing her to
adopt. Setting aside the factual issue of the aptitude of the applicant in the case at question
to be an adoptive mother, it was an absurd misjudgment of the Court to even enter into a
debate on who should, and who should not, have a “right to adopt children.” In actual fact,
nobody has such a “right.” As the Court had held previously, the purpose of adoption is to
find substitute parents for a child, not to find a child for would-be parents.
105 Cf. nn. 56, 57, 58.
44 International Organizations Law Group • Legal Studies Series • Number Two
 Part IV: Abortion, Homosexuality and the Natural Law of Morality

that universal human rights apply to all human beings in an equal manner,
and to embrace the reliance on the age-old principle that everything must
be dealt with appropriately.

Therefore, besides being superfluous, the YP are dangerous and, indeed,

have a potential of undermining the universality of human rights. It is, of
course, a legitimate claim that homosexuality, as long as it remains discrete
and private, should be tolerated. But the YP and similar initiatives are not
at all directed at obtaining tolerance for private behaviour that one would
still be allowed to consider immoral or unhealthy. Instead, their purpose
is to turn the “equality” of homosexuality into a sort of compulsory social
doctrine. The aim is to re-educate the public: everyone is forced to change
his or her attitudes and values, and there are increasingly dictatorial noises
about zero tolerance for dissent. The rights promoted by the same-sex agenda
encroach on the rights of all non-homosexuals: parents are not allowed to
educate their children as they see fit, religious communities are no more al-
lowed to live according to their centuries-old faiths, the contractual freedom
is limited,106 and the freedom of speech is undermined.107

For these reasons alone, the YP would certainly have merited a critical
commentary. But it is obvious that such a commentary could not be expected
to come from one of the co-authors of these principles, or from one of the
leading representatives of the homosexual lobby.

106 Cf. YP, Principle 12, according to which States must “prohibit discrimination on the ba-
sis of sexual orientation and gender identity in public and private employment, including in
relation to vocational training, recruitment, promotion, dismissal, conditions of employment
and remuneration” and “ensure equal employment and advancement opportunities in all
areas of public service, including all levels of government service and employment in public
functions.” Will this lead to a fixed quota of homosexual employees in private companies (as
the legislation of some countries foresees it for handicapped persons), or a fixed quota of
lesbians among the board of public companies (as Norwegian law foresees it for women)?
107 Cf. YP, Principle 21, which purports to guarantee the freedom of speech — but only,
as it seems, for the gay/lesbian lobby. The expression of views not conforming to the YP
must be prevented because they are “incompatible with human rights.”

International Organizations Law Group • Legal Studies Series • Number Two 45

Conclusion — “Rights” Replace Natural
Law: A Lawyers’ Revolt Against Reality
The analysis and comparison of the articles of Zampas/Gher and
O’Flaherty/Fisher shows that both contributions, despite the diversity of
the subjects treated, have much in common conceptually: the authors are
fully aware that the “human rights” they are advocating (access to abortion
in the one case, and a broad homosexual agenda in the other) do not exist
in reality. The purpose they pursue by writing articles is therefore to change
this reality, a goal that they seek to achieve mainly by putting forward novel
interpretations of well-accepted norms.108

Such scholarly activism in the name of a “just cause” is not, in itself, illegiti-
mate. However, one notices a complete failure of Zampas/Gher and O’Flaherty/
Fisher to explain why their respective positions are such a just cause. They
speak of human
The authors are fully aware that the “human rights, but do not
rights” they are advocating (access to abortion in appear to know
the one case, and a broad homosexual agenda in who is human, nor
what corresponds
the other) do not exist in reality. to human nature,
nor what a “right”
is. The rights they
are advocating float around freely; they are neither grounded in positive law,
nor in Natural Law; nor is there, despite claims made by the authors, a true
political or social consensus to support these purported rights.

108 With regard to abortion, cf. Congressional Record December 8, 2003, E 2538. With regard
to the YP, cf. Michael O’Flaherty, in an address delivered to ILGA, Vilnius (26 October 2007):
“Ultimately, the strength, reach and impact of the Yogyakarta Principles, will, in large part,
depend on the quality and the vigour of the advocacy work that will be done on their behalf.
That brings the issue right back to all of you here today — we rely on you to take the next
steps with the Principles — to take them to heart and to use them in national and international
lobbying and awareness raising.”

46 International Organizations Law Group • Legal Studies Series • Number Two

 Conclusion — “Rights” Replace Natural Law: A Lawyers’ Revolt Against Reality

The reasons why Zampas/Gher consider abortion a human right, or why

O’Flaherty/Fisher consider that two homosexuals make a family, remain, thus,
rather obscure. If we take a closer look at the “arguments of justice” brought
forward to promote the same-sex agenda, we find that these arguments heav-
ily rely not on reality, but on abstract rights, such as privacy, equality and
autonomy/empowerment.109 These principles, taken out of their context, are
made the subject of imbalanced and radical interpretations. For example, how
can same-sex marriage or the adoption of children by homosexual couples
be justified through arguments based on privacy? Marriage and adoption
are facts belonging to the public sphere: the public is asked to take note and
acknowledge a new personal relationship, and to confer specific entitlements
to the persons involved. How can autonomy be invoked, when in fact the
pretension is to impose legal obligations on others (e.g., on a child adopted
by a same-sex couple, or on employers, or on home owners)?

The rights to autonomy, privacy, and equality are simply affirmed, but
never deduced. Their origin remains, thus, unclear, and — since they are
not linked to any reality — their scope and meaning is open for manipu-
lation. This is how the “right to life” of a woman can be transformed into
a “right to abortion,” or a “right to self-determination” of homosexuals
into a “right to same-sex marriage.” Such transformations would not be
possible if the linkage between law and nature, between norm and truth,
is not eliminated first.

Using autonomy, privacy and equality as their first principles, the in-
novators flatly refuse to accept Natural Law. Which arguments, except those
that inconveniently stand in the way of their socio-political projects, are
used for that purpose?

109 These “rights” are identified by Nicholas Bramforth as the principal arguments for
the legal recognition of same-sex partnerships. Bramforth’s study attempts to construct a
comprehensive philosophical basis for the same-sex agenda and, at the same time, discusses
arguments by what he describes as ”new natural lawyers.” (Nicholas Bramforth, “Same-Sex
Partnerships,” 31-54.) The reasoning of Zampas/Gher relies on similar stereotypes: 1) “women’s
right to abortion is bolstered by the broad constellation of human rights that support it, such
as rights to privacy, liberty, physical integrity and nondiscrimination”; 2) “a constellation of
human rights, including the rights to privacy, liberty, physical integrity, nondiscrimination and
health, support the notion that abortion on request is a human right;” and 3) the claim that
a fetus has a right to life would be “incompatible with women’s fundamental human rights to
life, health and autonomy.” (Christina Zampras and Jaime M. Gher, “Abortion as a Human
Right,” 251, 255, and 262 respectively)

International Organizations Law Group • Legal Studies Series • Number Two 47

Conclusion — “Rights” Replace Natural Law: A Lawyers’ Revolt Against Reality

Usually, this question is passed over in silence — a silence that, as one

might suspect, could have to do with the absence of presentable arguments.
The innovators’ strategy is to make affirmations, not to explain them. On
those rare occasions, however, where a supporter of the same-sex agenda like
Nicholas Bramforth attempts to reject Natural Law with arguments rather
than pure avoidance of debate, one learns that Natural Law “is unappealing
… unless one shares the … profoundly Roman Catholic view of the world,”110
and arguments referring to it “are circular unless it is acknowledged that
they rest clearly on theological foundations,” namely those of “a conserva-
tive version of Roman Catholic theology,”111 which are therefore “likely to
lack general appeal.”112

At such words the credulous believer cannot but incredulously shake his
head in disbelief: Natural Law — an invention of the Catholic Church? What
about Ulpian, Cicero, Aristotle, Plato, Socrates? Were they all Catholic? Or does
the mere fact that someone has the audacity to quote, besides these classical phi-
losophers and lawyers, some sources identified as “Catholic doctrine”, irreversibly
invalidate the argument they are making? This is a new kind of quis-dixit, this
time not exhibiting naïve reliance on authority, but naïve reliance on secularist
bigotry: whatever the Catholic Church teaches must be wrong, because it is the
Catholic Church that teaches it. Never mind if many others have said the same
before or afterwards: if a doctrine is found to be identical or similar to that of the
Catholic Church, it is religious, therefore irrational, and thus inevitably wrong.
But what has the Roman Catholic Church done to merit such rejection, except
having based its doctrine, more than any other religious community, on the
foundations of classical philosophy? The rejection of Natural Law is not directed
against any particular religious doctrine, but against the heritage of occidental
thought tout court. Even in pre-Christian times it was understood that behaving
morally meant to conform action to insight, not to a purely subjective choice.
Affirmations that sexuality serves the purpose of procreation, that the family
serves the purpose to raise children, that children need a father and a mother,
and that the unborn child is a human being, are portrayed as a religious doctrine
by the innovators, but in fact they are not particularly religious. They simply

110 Nicholas Bramforth, “Same-Sex Partnerships,” 46.

111 Ibid., 50. Apart from exhibiting what appears to be an (anti-) religious prejudice, Bram-
forth seems to have misunderstood the argument he is trying to reject. If the basic assumption
is that the rational purpose of sexuality is procreation, and other purposes only auxiliary, then
there is nothing circular in saying that a sexual act from which the possibility of procreation is
categorically excluded is contrary to the order of nature, and thus (morally) wrong.
112 Ibid., 52.
48 International Organizations Law Group • Legal Studies Series • Number Two
 Conclusion — “Rights” Replace Natural Law: A Lawyers’ Revolt Against Reality

reflect an insight deduced from the observation of nature. Of course, it is a very

simple defense strategy for the innovators to flatly reject such insights, claiming
that they have not been demonstrated with sufficient strength. But then it must
be asked whether they are not themselves making indemonstrable assumptions
that could be rejected in the same way, if not for more compelling reasons.

That raises two questions. The first is whether the mere fact that an
argument coincides with, or is similar to, doctrinal positions adopted by
the Catholic Church (or any other religious faith) must necessarily be
wrong, even if that argument is itself not a religious doctrine. The sec-
ond is whether the fundamental positions of those opposing the idea of
Natural Law are not themselves, in a certain sense, “religious.” Accepting
the doctrine of Natural Law means to accept confronting a legal doctrine
with the real world outside the legal order; in that way, it makes a doctrine
verifiable. But can the same be said of an approach that relies on the mere
affirmation, even if such affirmation is repeated and echoed a thousand
times, of abstract rights? Is Bramforth’s reliance on what he calls a person’s
right to “autonomy/empowerment” and “privacy” more rational than any
religious doctrine? Or less sectarian? Or less “indemonstrable”? It seems
clear that the promoters of access to abortion and same-sex marriages
are granting and withholding “autonomy” and “privacy” in a selective
manner. What about the autonomy of a child that does not want to be
adopted by a same-sex couple, or a taxpayer who does not want to subsi-
dize their lifestyle? What about a medical practitioner who does not want
to perform abortions?

Bramforth summarizes his argument by saying that arguments relying

on Natural Law “are, in short, prepared to dismiss the most personal and
intimate feelings of many millions of people because of their failure to match
up to a set of pre-ordained, absolute moral rules … Their disregard for the
feelings and experiences of so many human beings — which are valuable
and important to their holders — implies a complete lack of concern for the
diversity of human experience and a blind determination to fit the world
into a prescribed ‘reality.’”113 So, there we are: the reproach is that Natural
Law refers to (an objective and verifiable) reality rather than to (subjective)
feelings and sentiments. The argument is ambivalent and therefore self-
defeating: in the same way, one might point out that Bramforth is showing
disregard for the “feelings” and “experience” of many millions of people

113 Ibid., 53.

International Organizations Law Group • Legal Studies Series • Number Two 49

Conclusion — “Rights” Replace Natural Law: A Lawyers’ Revolt Against Reality

who feel that homosexuality is repellant. Which are the criteria that help
him distinguish feelings that are worthy of respect from those which are
not? Setting aside the question whether Bramforth’s ideas about equality,
autonomy or privacy are not themselves pre-ordained, it is clear that his
acknowledgement that feelings and sentiments should supersede reasonable
arguments excludes him and his likes from any rational debate.

Another telling example of the irrationality of the opponents of Natural

Law was recently given by Jon O’Brien, a self-described Catholic campaign-
ing in favor of a “right to abortion,”114 when, in a letter to the editors of the
International Journal of Human Rights, he wrote:

Laws must not prevent people of other faiths from practising their
faith. Since many religions support a woman’s right to choose, laws
against abortion would violate their rights.115

In other words: a woman having an abortion is “a woman practising

her faith.” The “right to abortion” follows directly from religious liberty
(which, in turn, supersedes the right to life of the fetus, whose rights
apparently can be discarded simply by believing that he is not a human
person). Remarkably, this argument is made by a man who, describing
his position as pro-choice, campaigns against the right to religious con-
scientious objection for medical practitioners.116 Religious liberty and
the “right to choose” are apparently not for everyone. What is consistent
reasoning needed for, if there is a political agenda? The sad irony is that
the pro-choice campaigners are anti-choice.

114 Jon O’Brien is the chairman of “Catholics for Choice (CFC),” a lobby group that pre-
tends to represent earnest Catholic laypeople who have reluctantly, but courageously, chosen
to embrace a “Catholic alternative” to the views endorsed by the Vatican and Catholic bishops
in order to adapt the Church’s teaching to the actual beliefs and practices of Catholics. The
secular media have embraced CFC as representative of a substantial number of Catholics. In
actual fact, however, the organization has no membership and appears to be funded almost
entirely by a small number of secular, or even anti-religious, sources, whose purpose in sup-
porting CFC is to undermine Church teaching. For Information on CFC see: Thomas E. Woods,
Jr., War on Faith: How Catholics for a Free Choice Seeks to Undermine the Catholic Church,
International Organizations Research Group White Paper No. 1, 2001. http://www.c-fam.org/
docLib/20080624_WarOnFaith.pdf (accessed December 15, 2009).
115 Jon O’Brien, International Journal of Human Rights, 2008, No. 3, 305.
116 Cf. the Catholics For Choice pamphlet “In Good Conscience — Respecting the Beliefs
of Health-Care Providers and the Needs of Patients,” (2008).

50 International Organizations Law Group • Legal Studies Series • Number Two

 Conclusion — “Rights” Replace Natural Law: A Lawyers’ Revolt Against Reality

The campaigning of self-appointed “experts” and “advocacy groups” in favor

of abortion and of same-sex marriages is best described as a revolt of lawyers
against reality. Accepting these novel “rights” would mean to accept that laws,
including human
rights, are an ar- The campaigning of self-appointed “experts” and
bitrary invention “advocacy groups” in favor of abortion and of
of some historic
legislators, which same-sex marriages is best described as a revolt
can at any time of lawyers against realty.
be replaced by
equally arbitrary
inventions of contemporary lawyers. The law would thus not need to have
anything to do with any reality outside the legal order, but could be used to
create an intellectual parallel universe. The rejection of Natural Law and its
replacement with voluntaristic concepts is intrinsically totalitarian: if things
are not allowed to remain what they are by nature, they will become whatever
politicians and lobbyists want them to be. To make things even worse, it seems
that the rewriting of human rights does not even require any democratic le-
gitimacy or due political process; it suffices that 29 self-elected “experts” gather
to set up a to-do-list for sovereign governments with 127 items, or that some
radical NGOs get involved with the relevant UN Committees in order “to assert
a broad consensus around our assertions”.117

Human Rights, in the hands of such advocates, are likely to become a

monstrous threat to humanity.118

117 Cf. Congressional Record, December 8, 2003, E 2538.

118 In a recent publication, the Austrian human rights “expert” Manfred Nowak (Ein
Weltgerichtshof für Menschenrechte — eine utopische Forderung? in: Vereinte Nationen 5/2008)
proposes the creation of a Global Tribunal for Human Rights. It is truly frightening to imag-
ine this proposal becoming a reality. As it happens, Nowak is yet another of those relatively
few names that one usually encounters whenever “experts” promote novel “human rights,” in
particular abortion and same-sex marriage. He was on the drafting committees of both the
YP and the Declaration on the Principles of Equality. In addition, he was also a member of the
controversial EU-Network of Experts, which, having acquired a questionable reputation for its
efforts to impose a “right to abortion” on EU Member States, has recently resumed its activity
under a different name (FRALEX) and in a different institutional context (under the aegis of
the EU Fundamental Rights Agency in Vienna), but with the same persons and the same radical
agenda. Mr. Nowak is also well-connected in the UN, where he serves as a Special Rapporteur
on Torture. Is it then far-fetched or paranoid to presume that Mr. Nowak may envisage that he
and other members of his network should be appointed as judges in this new Global Tribunal,
so that at last they might impose their novel concept of “rights” globally through enforceable
judicial decisions? Quis custodiat ipsos custodes?
International Organizations Law Group • Legal Studies Series • Number Two 51
List of Acronyms
AWP. . . . . . . . . . . . . . . . . African Women’s Protocol
CEDAW. . . . . . . . . . . . . . Convention on the Elimination of All Forms
of Discrimination Against Women
AWP. . . . . . . . . . . . . . . . . African Women’s Protocol
CFC. . . . . . . . . . . . . . . . . . Catholics for Choice
CRR.. . . . . . . . . . . . . . . . . Center for Reproductive Rights
ECHR. . . . . . . . . . . . . . . . European Convention on Human Rights
ECtHR. . . . . . . . . . . . . . . European Court of Human Rights
EU. . . . . . . . . . . . . . . . . . . European Union
FRA. . . . . . . . . . . . . . . . . . European Union Agency for Fundamental Rights
FRALEX. . . . . . . . . . . . . Fundamental Rights Agency Legal Experts Group
ICCPR. . . . . . . . . . . . . . . International Covenant on Civil and Political Rights
ICPD.. . . . . . . . . . . . . . . . International Conference on Population
and Development
ICRC.. . . . . . . . . . . . . . . . International Convention on the Rights of the Child
ILGA. . . . . . . . . . . . . . . . . International Lesbian Gay Association
LGBT. . . . . . . . . . . . . . . . Lesbian, Gay, Lesbian and Transgender
NGO. . . . . . . . . . . . . . . . . Non-governmental Organization
UDHR. . . . . . . . . . . . . . . Universal Declaration of Human Rights
UN. . . . . . . . . . . . . . . . . . . United Nations
UNDP. . . . . . . . . . . . . . . United Nations Development Program
UNFPA.. . . . . . . . . . . . . . United Nations Population Fund
UNHDR. . . . . . . . . . . . . United Nations Human Development Report
UNICEF. . . . . . . . . . . . . United Nations Children’s Fund
US. . . . . . . . . . . . . . . . . . . United States
WHO. . . . . . . . . . . . . . . . World Health Organization
YP. . . . . . . . . . . . . . . . . . . Yogyakarta Principles

52 International Organizations Law Group • Legal Studies Series • Number Two

Biography
Jakob Cornides Doctor of Law (University of Vienna), is an official of the
European Commission, where he has been working on consumer protection
and on trade policy since 1997. The views expressed in this paper are those
of the author, and are not in any way attributable to the institution in which
he is employed. Former publications concern a broad variety of legal issues,
including consumer law, intellectual property, international trade law, contract
law, tort law, and human rights.

International Organizations Law Group • Legal Studies Series • Number Two 53

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