HRC31 Report: Protection of the Family
At the 31stSession of the Council, the report that was mandated by the protection of family resolution in the 29th Session was tabled. The report was the outcome of a controversial resolution in the 29th Session of the Council which was sponsored by a cross-regional group of states including Egypt, Cote d’Ivoire, El Salvador, Mauritania, Morocco, Russian Federation, Tunisia, Uganda, Qatar, Belarus, China and Bangladesh.
The ‘controversy’ at the center of the resolution concerned the intent of the resolution itself. Was it to protect the family, or was it to use the language of protecting the family to actually target those who were vulnerable to abuse within families including children, women and LGBTI persons? Many states as well as civil society activists who were concerned about LGBTI rights, child rights and gender rights were concerned that it would be a vehicle to roll back hard won rights.
The Report that was tabled did a fine job of addressing these concerns while at the same time stressing the role of the family in poverty eradication and achieving sustainable development.
The Report noted that
International human rights instruments have long recognized that the family is a fundamental unit of society, which performs valuable functions for its members and for the community as whole. For these reasons, it is widely recognized that States bear the primary obligation to provide protection and assistance to the family so it can fully assume these functions.
After acknowledging the centrality of the family to international human rights law, the Report goes on caveat this recognition in two specific ways. Firstly the Report observed that:
International standards do not prescribe a specific concept of family, which varies depending on the concrete historical, social, cultural and economic make-up of the community and of the life circumstances of family members.
This recognition of diversity of families in turn allows for the Report to document the fact that:
Several States have introduced changes in their legislation allowing for the legal recognition of relationships between persons of the same sex. In Argentina, the Egalitarian Marriage Law (Law No. 26618) expressly allowed for same-sex marriages. In Sweden, the reform of the Marriage Code in 2009 made the definition of marriage gender neutral, thus granting people the right to marry regardless of the sex of the spouses. In other countries, same-sex couples have been recognized by judicial action.
It should be noted that the recognition of diversity of families was what was proposed both in the informal negotiations and by way of amendments in the 29th Session of the Human Rights Council in particular by South Africa and rejected by a vote on the floor of the Council. So in a sense though the 29thCouncil can be viewed as a defeat for the proposition that protection of families explicitly mean protection of diverse forms of family, the 31st Session brought the language of diversity back into the debate on the role of the family.
The second strong concern in the 29thSession of the Council was around the protection afforded to those within the family who may be subjected to abuse by the more dominant members of the family be it women, children or LGBTI persons. This concern was again addressed by the Report as it unequivocally stated that there is a ‘right to equality in the family’ and a right not to be subjected to violence or abuse within the family’. Again the report specifically referenced the point that ‘The Committee on the Rights of the Child has called for States to protect children from discrimination based on their own or their parents- or legal guardian’s sexual orientation or gender identity.’
The Report concluded by noting that:
This consensus regarding the role of families in sustainable development is grounded in a number of common elements. These include the need to recognize the diverse and changing forms of the family institution, in accordance with the different social, cultural and economic characteristics of every society; the promotion of equality between men and women; and the effective protection and promotion of the rights of women, children, persons with disabilities, older persons and any other family member, without distinctions. Moreover, ensuring universal access to sexual and reproductive health services, including family planning, should be an integral part of development efforts.