08 Feb Остра реакција на HUMAN RIGHTS WATCH
HUMAN RIGHTS WATCH испрати писмо до Премиерот и Претседателот на Република, до Министерот за труд и социјална политика, а како остра реакција по повод исклуцуванјето на сексуалната ориентација како основа за застита во последната верзија на Законот за недискриминација усвоен на владина седница.
Letter to the Prime Minister of Macedonia
February 3, 2010
Dear Prime Minister,
Human Rights Watch writes to you in concern over your government’s
decision to deny effective protection based on sexual orientation and
gender identity in a proposed new anti-discrimination law. As you are
aware, Human Rights Watch is an independent organization dedicated to
defending and protecting human rights. We investigate and expose human
rights violations and hold abusers accountable.
On January 29, 2010, the government of Macedonia announced a revised
proposal for an anti-discrimination law. Although previous drafts had
referred to “sexual direction” as ground protected against
discrimination, in the present draft such reference has been
eliminated.
The Minister of Labor and Social Policy, Mr. Xhelal Bajrami
acknowledged this change, adding that lesbian, gay, bisexual and
transgender people could still ask for protection as the draft law
also refers to “other grounds” of discrimination.
Human Rights Watch disagrees with this approach. Express mention of
the grounds of discrimination is an essential measure toward
eliminating unequal treatment. We urge you to change the draft law and
make the anti-discrimination framework law compatible with
international human rights standards.
The principles of non-discrimination and equality are at the
foundation of the international human rights system, under which
Macedonia has undertaken clear and obligatory commitments. The
Universal Declaration of Human Rights (UDHR) establishes that “all
human beings are born free and equal in dignity and rights” (art.. 1)
and “everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind” (art. 2(1)). These
principles are reiterated throughout the International Covenant on
Civil and Political Rights and other major treaties to which Macedonia
is a party.[1]
The principle of non- discrimination is thus a core treaty obligation
and a non-derogable norm. The enjoyment of all the rights guaranteed
under the core treaties without discrimination is not subject to
progressive realization; it has been defined as an immediate
obligation.[
International law and standards prohibit discrimination on the basis
of sexual orientation. Protecting lesbian, gay, bisexual and
transgender people against discrimination is therefore part of
Macedonia’s duty-bound obligations. The International Covenant on
Civil and Political Rights (ICCPR) to which your country acceded in
1994, affirms the equality of all people in articles 2 and 26. In the
1994 case of Nicholas Toonen v Australia, the Human Rights Committee,
the international body of experts that monitors compliance with the
ICCPR, found that both these provisions should be understood to
include sexual orientation as a status protected against
discrimination. Specifically it held that “reference to ‘sex’ in
articles 2, para.1 and article 26 is to be taken as including sexual
orientation.
Likewise, the United Nations Committee on the Rights of the Child, the
international body of experts that monitors compliance with the
Convention on the Rights of the Child (CRC) to which Macedonia acceded
in 1993 has also affirmed in its General Comments that the
Convention’s prohibitions on discrimination (art.2) are taken to
include “sexual orientation.
United Nations treaty bodies have expressed concern when governments
like yours fail to include sexual orientation in their non-
discrimination legislation.
commended governments which have passed non-discrimination legislation
that includes sexual orientation. [5]
Macedonia is a party to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. In art. 14, the Convention
prohibits discrimination in the enjoyment of the rights and freedoms
set forth in the Convention. Macedonia was also one of the first
countries in Europe to ratify protocol 12 of the Convention which
prohibits discrimination in all rights ‘set forth by law’. The
European Court of Human Rights, which authoritatively interprets and
enforces the Convention, has recognized that sexual orientation is
covered by article 14 of the European Convention on Human Rights. In
its recent first ruling on protocol 12 it said the grounds for
discrimination prohibited under that protocol would be the same as
under article 14, i.e. including sexual orientation.
Since 2005 your country has been involved in a “stabilization and
association” process with the European Union as a candidate for future
membership. The draft anti-discrimination law of your government is
not in line with the Charter of Fundamental Rights of the European
Union, which affirms human rights among the core values of the Union.
Article 21 of the Charter, which entered into force in December 2009,
prohibits discrimination, specifically including discrimination on the
basis of sexual orientation.
The European Commission noticed in their 2009 progress report on your
country[7]:
“Little progress has been made in the area of anti-discrimination
policy.. Mechanisms to identify, pursue and criminalize all forms of
discrimination by State and non-State bodies against individuals or
groups do not yet exist. A framework law on anti-discrimination
remains to be adopted. Discrimination based on sex, ethnic origin,
disability and sexual orientation persists….
Constitution nor the existing legislation identifies sexual
orientation as a basis of discrimination. Lesbian, gay, bisexual and
transgender (LGBT) people are not protected against direct or indirect
discrimination and are stigmatized, particularly in rural areas.”
The wording of the proposed anti-discrimination law of your government
also contradicts Macedonia’s public commitment in signing a joint
statement on human rights and sexual orientation and gender identity
presented by 66 States at the General Assembly of the United Nations
on December 18, 2008.
The statement calls upon “all States and relevant international human
rights mechanisms to commit to promote and protect the human rights of
all persons, regardless of sexual orientation or gender identity.” It
also “urges States to ensure adequate protection of human rights
defenders, and remove obstacles which prevent them from carrying out
their work on issues of human rights and sexual orientation and gender
identity.”
Similarly, the Yogyakarta Principles on the Application of
International Human Rights Law in relation to Sexual Orientation and
Gender Identity (
group of 29 experts on international human rights law in 2006, call
upon states to ” embody the principles of equality and
non-discrimination on the basis of sexual orientation and gender
identity in their national constitutions or other appropriate
legislation, if not yet incorporated therein, including by means of
amendment and interpretation, and ensure the effective realization of
these principles;” (principle 2A).
Several of your neighboring countries are in the process of
introducing anti-discrimination laws or have done so in the recent
past-among them Albania and Serbia. In all cases the law expressly
mentions sexual orientation as a ground for non-discrimination.
We urge Macedonia not to turn away from international human rights
standards and isolate itself in the region.
The purpose of a non-discrimination law is to deepen the domestic
commitment to equality, and to fulfill international obligations.
However, a non-discrimination law must be inclusive.
I urge you to introduce sexual orientation and gender identity into
the draft non-discrimination law, work toward developing protection
for all people against discrimination based on their sexual
orientation or gender identity, and support the bill’s passage.
Sincerely,
Boris O. Dittrich,
Advocacy director in the program for lesbian, gay, bisexual and
transgender people
Human Rights Watch
CC :
Mr. Gjorge Ivanov, President of Macedonia
Mr. Trajko Veljanovski, President of the Assembly of Macedonia
Mr. Xhelal Bajrami, Minister of Labor and Social Policy
[1] International Convention on the Elimination of all forms of Racial
Discrimination (CERD), 1965, 660 UNTS 195; International Convention on
the Elimination on All forms of Discrimination Against Women (CEDAW),
1979, 1249 UNTS 13; Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), 1984, GA Res.
39/46; Convention on the Rights of the Child (CRC), 1989, GA Res.
44/25
[2] See: the nature of States parties obligations (Art. 2, paar.1)
General comment 3, December 14, 1990, and General Comment No. 14, The
rights to the highest attainable standard of health: 11/08/2000,
E/C.12/2000/
[3] Committee on the Rights of the Child. General Comment No. 4:
Adolescent health and development in the context of the Convention on
the Rights of the Child, CRC/GC/2003/
[4] For example, the Committee on Economic, Social and Cultural
Rights, the international body of experts that monitors compliance
with international Covenant on Economic, Social and Cultural Rights
(ICESR), to which your country acceded in 1994, has repeatedly
expressed concern with Hong Kong’s failure in this area, Committee on
Economic, Social and Cultural Rights. Concluding Observations: China,
E/C.12/1/Add.
China, E/C.12/1/Add.
[5] For example, the Committee on the Elimination of Discrimination
against Women, charged with interpreting and monitoring compliance
with the UN Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW), to which your country acceded in
1994, has commended the governments of Sweden and New Zealand.
Committee for the Elimination of Discrimination against Women.
Concluding Observations: Sweden, A/56/38, July 31, 2001; Concluding
Observations: New Zealand, A/49/38, April12, 1994
[6] See the 2003 case of Karner v Austria. Also the explanatory
memorandum of Protocol No. 12 recognizes that sexual orientation is
covered by article 14 of the European Convention on Human Rights. The
first ruling on protocol 12 was Sejdić and Finci v Bosnia-Hercegovina
in 2009.
[7] Brussels 14 October 2009, SEC (2009) 1335/3 on page 20
http://www.hrw.