Lesbian, gay, bisexual and transsexual people are entitled to all of the same rights as other individuals. Both Cambodian and international law prohibit discrimination against individuals based on their personal characteristics, guaranteeing equal rights and freedoms and equal application of the law to all individuals. Sexual orientation and gender identity can be considered prohibited grounds for discrimination due to references in legal provisions on discrimination to “sex” and the catch-all phrase, “or other status”. This means that LGBT people are entitled to all of the rights provided in Cambodian law and set out in international human rights instruments such as the Universal Declaration of Human Rights (“UDHR”), the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). Despite prohibitions on discrimination, international human rights law has, until recently, failed to explicitly recognize rights by reference to “sexual orientation”. Section 4.3 examines recent developments in this area.
4.1 Domestic Law
The Constitution of the Kingdom of Cambodia (the “Constitution”) is the supreme law of Cambodia; all other laws must be consistent with the constitutional principles and guarantees it sets out. Article 31 of the Constitution guarantees equal rights to all citizens regardless of personal characteristics, stating:
“Every Khmer citizen shall be equal before the law, enjoying the same rights and freedoms and fulfilling the same obligations regardless of race, color, sex…or other status.”
Article 35 guarantees the right of all Khmer citizens, regardless of sex, to participate actively in the political, economic, social and cultural life of the nation. Though there is no explicit mention of sexual orientation in these provisions it can be implied that they extend to LGBT individuals as the intent is to ensure equality regardless of personal characteristics.
Homosexuality is not illegal in Cambodia, but same-sex marriage is prohibited. Article 45 of the Constitution explicitly defines marriage as an agreement between a husband and wife, and this traditional conception of marriage is confirmed by the Law on Marriage and the Family, which states in Article 3 that “marriage is a solemn contract between a man and a woman,” and in Article 6 that a marriage shall be prohibited between a person whose sex is the same sex as the other. Despite these unequivocal legal provisions, at least one same-sex marriage has taken place in Cambodia with the support and acceptance of local authorities.
In 1996 The Phnom Penh Post reported on a 1995 marriage between two women in Kandal province. Khav Sokha, who married her partner, another woman named Pum Eth, told the newspaper: “The authorities thought it was strange, but they agreed to tolerate it because I have three children already (from a previous marriage). They said that if we were both single (and childless), we would not be allowed to get married because we could not produce children.” The marriage appeared to have official approval and was reportedly a popular event, with 250 attendees, including Buddhist monks and high officials from the province.
Article 36 of the Constitution guarantees equal labour rights, regardless of gender: “Khmer citizens of either sex shall enjoy the right to choose any employment according their ability and to the needs of the society. Khmer citizens of either sex shall receive equal pay for equal work.”
Article 12 of the 1997 Labour Law also states that employers shall not discriminate based on the personal characteristics and beliefs of an individual, including their gender. Labour law in Cambodia does not specifically mention discrimination based on sexual orientation. A number of LGBT individuals have noted that they frequently face discrimination in the workplace and by their employers.
Article 31 of the Constitution also recognizes the applicability of international human rights law in Cambodia, stating: “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights, the covenants and conventions related to human rights, women’s and children’s rights.” A 1997 decision of the Constitutional Council confirmed this with the Council stating in its decision that amongst the applicable law that a trial judge should consider are the international conventions that Cambodia has recognized.
4.2 International Law
The UDHR, ICCPR and ICESCR guarantee civil, political, and social, cultural and economic rights to all individuals without discrimination. Article 1 of the UDHR states that “all human beings are born free and equal in dignity and rights” while Article 2 states that everyone is entitled to the rights set forth in the UDHR “without distinction of any kind” including “race, colour, sex…or other status.” Article 2(1) of the ICCPR and Article 2(2) of the ICESCR also require all state parties to guarantee the rights set out in the respective covenants without distinction. It is, therefore, clear that international human rights apply equally to all, and discrimination against LGBT persons in recognizing those rights would be in violation of international human rights law.
Article 7 of the UDHR and Article 26 of the ICCPR also guarantee equality before the law and protection from discrimination with Article 26 stating that “all persons are equal before the law and are entitled to the equal protection of the law” and that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground” including sex or other status. International human rights law therefore creates a positive duty on state parties to the ICCPR such as Cambodia to ensure that LGBT persons have effective protection from discrimination in society.
The United Nations Human Rights Committee, a UN treaty body that monitors adherence with the ICCPR, confirmed the relevance of the above provisions to LGBT persons, stating in Toonen v. Australia that “in its view, the reference to “sex” in articles 2, paragraph 1, and 26 [of the ICCPR] is to be taken as including sexual orientation.”
Article 12 of the UDHR and Article 17 of the ICCPR also guarantee the rights to privacy stating: “no one shall be subject to arbitrary or unlawful interference with [their] privacy” and “everyone has the right to protection against such interference or attacks. In Toonen v. Australia the Human Rights Committee when considering Article 17 stated: “it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’.” Since then, the United Nations’ human rights mechanisms have condemned violations based on sexual orientation and gender identity, including killings, torture, rape, violence, disappearances, and discrimination in many areas of life. UN treaty bodies have called on states to end discrimination in law and policy. This has triggered legislative change in some countries and provided guidance to interpreting existing human rights treaties.
4.3 Other International Developments
In April 2003, momentum towards recognition of human rights relating to sexual orientation was reflected in the presentation by Brazil of a draft resolution on human rights and sexual orientation to the United Nations Economic and Social Council for consideration by the Commission on Human Rights at its fifty-ninth session. The six-point draft resolution, which was supported by 19 other countries, stressed that “the universal nature of human rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on grounds of sexual orientation.” It called upon all states to promote and protect the human rights of all persons regardless of their sexual orientation.
The Brazilian resolution attracted vigorous opposition from Islamic states and was postponed to be considered at the Human Rights Commission’s 60th session the following year. However, Brazil later abandoned the resolution at the 60th session when it became clear that consensus was unlikely.
In November 2006, a group of international human rights experts met in Yogakarta, Indonesia and drafted the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (the “Yogyakarta Principles”). According to their authors, the 29 Yogyakarta Principles “reflect the existing state of international human rights law in relation to issues of sexual orientation and gender identity.” The Yogyakarta Principles were introduced at two high profile launches, the first at a session of the Human Rights Council in Geneva in March 2007, and the second later that year at the UN General Assembly session in New York.
A 2010 article in the Michigan Journal of International Law noted the influence of the Yogyakarta Principles, stating: “Despite the tension between activism and strict legal accuracy, the Principles have already attained a high degree of influence. They have become a fixture in the proceedings of the United Nations Human Rights Council; have been incorporated into the foreign and domestic policies of a number of countries; been acclaimed and debated by regional human rights bodies in Europe and South America; and have worked their way into the writings of a number of United Nations agencies and human rights rapporteurs.”
On June 3, 2008, the momentum continued when all 34 countries of the Organization of American States approved a resolution on human rights, sexual orientation and gender identity that reaffirmed the universality of human rights, expressed concern about human rights violations committed against individuals because of their sexual orientation and gender identity, and resolved to include the subject on the agenda of its Committee on Juridical and Political Affairs.
On December 18, 2008, a French-sponsored Declaration on sexual orientation and gender identity was presented to the United Nations General Assembly, attracting the support of 66 countries. The declaration called upon “all States and relevant international human rights mechanisms to commit to promote and protect human rights of all person, regardless of sexual orientation and gender identity,” and urged states “to take all necessary measures…to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.” A counter-statement opposing the declaration was signed by 57, mostly African and Middle Eastern countries. Cambodia did not sign either statement.
These developments are part of an expanding movement that recognizes that the issue of LGBT rights is not simply about those rights that relate to sexuality, but the universal human rights that apply to all regardless of sexual and gender orientation.