Last edited: January 25, 2005

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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