Barbados Cannot Step Off the World
The
Barbados Advocate, December 13, 2004
By Carl Ince
Last week I chided the Reverend Doctor Lucille Baird for
having subjected homosexuals and prostitutes, plus those Parliamentarians who
would dare support them, to a savage verbal attack. It seemed that she might
actually descend upon them with seven priests blowing their trumpets a la
Joshua at Jericho. I contrasted her spleen with the quiet scribbling in the
sand of her Lord and Master when he was faced with similar deviation from a
more harshly condemned sexual norm.
I also added that in contemplating the siege on
Parliament she was directing her venom towards the wrong object She was as
late by as many years as it took Moses to cross the wilderness—a long 40
years.
When Barbados became independent in 1966, 38 years ago,
it was joining dozens of colonies in Africa, Asia and the Caribbean which had
progressed from servitude to sovereignty after the Second World War, on the
basis of self determination, in accordance with the view that peoples had an
inherent right to determine for themselves how and when they should join the
community of nations. They had a right to decide for themselves the economic,
social, political and cultural policies they wished to adopt and exercise. For
example, the States could determine whether they wished to be socialist or
capitalist, republican or monarchic, Hindu or Atheist. These rights were
enshrined and protected in law by the United Nations Treaty, more commonly
known as the United Nations Charter. By becoming a state, Barbados acquired an
inherent right to enter into treaty agreements with other States and with
international organizations that have treaty-making powers.
It promptly set about entering into such treaties. With
the proliferation of States especially since the 1960s, there has been a
proliferation of these solemn agreements. In law, these agreements are sacred,
a word whose meaning would not be lost on religious persons. This means that
the obligations made under them must be met and the promises are to be
honoured in good faith.
Barbados may not now avoid these obligations without
abandoning the Community of Nations. Many of the principal regional and
universal treaties made relate to human rights and are intended to confer on
individuals the right of self-determination, which more and more parallels the
self-determination, which brought the colonial states to independence. Through
these treaties, domestic systems have gradually opened their doors to
international values and States have become increasingly willing to bow to the
demands of international law.
By this law the rights of individual persons are meant to
matter more than the interests of the State, especially among liberal regimes
like our own. Barbados therefore stands to be influenced significantly by
decisions made not only by the United Nations Court of Human Rights but also
by the Inter American Court of Human Rights because of the International
Covenant of Civil and Political Rights, including the Optional Protocol, and
the American Convention, treaties entered into by Barbados with the United
Nations and the Organisation of American States. Hence if a Court under one of
the treaties to which Barbados is party were to hold that a Barbadian
conviction for committing a homosexual act was a breach of a personal right
under the treaty, Barbados would be bound to recognise that decision,
especially if the law under which the offence was brought pre dated the
treaty. In a nutshell, there is a definite development in the national courts
of states to apply international law into national law, especially where the
international law concerns human rights or confers rights on individuals.
The courts step in to ensure that there is compliance
with the international standard at the national level. Barbados, including its
courts, its Parliament, and its Executive are tied into that international
system which provides both rights and responsibilities. Barbados may take
advantage of the rights but has to bear the burden of its responsibilities.
Finally, although resolutions of the UN General Assembly
are not generally binding on states, the following sequence of events
indicates the direction in which international sentiment, values and law are
heading. Barbados, in this matter, may find itself swept along or swept aside
by the tide of globalizing values.
The following represents the most deliberate attempt yet
to provide international legal protection for homosexuals. It was an effort
under the aegis of the UN in Geneva, the home of the United Nations Human
Rights Committee. In April last year the UN body passed a resolution to make
homosexuality a human right and to impose criminal sanctions against opponents
of gay rights as one might institute a penalty against persons who oppose
racial or ethnic rights; and to expand the definition of discrimination to
include discrimination on the basis of sexual orientation.
The resolution was introduced by Brazil and sponsored by
19 other nations, including most European nations and Canada, It was the first
resolution in UN history to link homosexuality with human rights law. The
resolution called upon all States to promote and protect the human rights of
all persons regardless of their sexual orientation and for UNHRC to pay due
attention to the phenomenon of violations of human rights the world over
against persons on the ground of their sexual orientation.
The Brazilian Delegation, like its football team will not
be easily defeated and only last month on November 23, indicated that it would
push in 2005 for homosexuality to be a universal human right. The Brazilian
argument also considers that homosexuality between consulting adults is not an
acceptable basis on which to imprison people and concludes that freedom to
shape ones own existence is a fundamental human right. The UNHRC will be used
to push for the right.
Objective analysis of the current situation therefore
suggests that change will come sooner or later, not directly from our
Parliament but through the courts, national or international. To threaten to
intimidate these would not be recommended and could lead to imprisonment for
contempt of court or worse.
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