What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?
Source: Ejil Talk
November 15, 2016
Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory.
For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States. However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.
Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.
However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, which on 3 November tabled a draft resolution before the Third Committee of the GA, seeking to delay consideration of resolution 32/2 ‘in order to allow time for further consultations to determine the legal basis upon which the mandate of the special procedure established therein will be defined’. This is notwithstanding the fact that resolution 32/2 specifically requires the mandate-holder to, inter alia, ‘assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity, while identifying both best practices and gaps’.
While there is one (controversial) precedent relating to human rights defenders, it is highly unusual for the GA to intervene and block the work of a Special Procedures mandate. A vote on this draft resolution is expected to take place imminently, a move that threatens the implementation of resolution 32/2. This would set a very worrying precedent for the protection of LGBTI rights at a time when violence and discrimination against the community is at gravely concerning levels.
This act of opposition is the latest in a series of acts of this nature by the African Group and the Organisation of Islamic Cooperation, as well as others, who have sought to prevent LGBTI issues from being fully acknowledged and prioritised in the international agenda. The reality is that in many of these States being lesbian, gay, bisexual, transgender, or intersex is a criminal offence, and therefore, any efforts by the international community to promote LGBTI rights and plug protection gaps is, for these countries, more of a cause for concern than something to be championed.
Rosa Freedman notes an incident that occurred during the 2012 panel referred to above, which may be viewed as emblematic of these States’ attitudes towards LGBTI issues: at the beginning of the South Africa-sponsored panel on matters relating to the LGBTI community, several State representatives walked out. This panel marked the beginning of South Africa’s disengagement from the promotion of LGBTI rights. One might also recall the filibustering that marked the concluding moments of the 32nd session of the Human Rights Council in July this year – when the process of appointing special rapporteurs was contested by a number of delegations – as a harbinger of the current move.
Arguments by the opposing States
According to the African group, resolution 32/2 lacks a legal basis and overlooks important policy considerations. These States make the following arguments: 1) that the resolution unjustifiably encroaches upon their national sovereignty; and 2) by bringing attention to the discrimination and intolerance of the LGBTI community, it overlooks, and shifts focus away from, discrimination on the basis of other protected characteristics, such as colour, race, sex or religion, and other matters of chief regional concern, like the right to development. Essentially, a number of these States do not believe that LGBTI rights are part of the international human rights law framework.
Response and potential implications
A number of States have challenged the basis upon which the African Group are calling for the suspension of the mandate. Spokespersons for the US and the European Union, for example, have underlined the need for protection measures that apply to all individuals without distinction of any kind. The UK is reported to be on a major diplomatic campaign to counter the move by the opposing States—many of whom are Commonwealth partners of the UK. However, to be successful key global south players like India and South Africa will have to play a leading role.
Significantly, a number of Latin American countries – those who led resolution 32/2 in Geneva – have expressed their opposition by putting forward an amendment before the GA to remove the African Group’s proposal. In case their suggested amendment is unsuccessful, they have urged members of the GA to vote against the draft resolution.
If the African Group’s draft resolution is adopted, it will have two broadly related implications, as largely reflected in the Latin American contingent’s (and others) expressed concerns: 1) the undermining of LGBTI rights specifically, and the letter and spirit of human rights obligations more generally; and 2) the destabilization of the HRC as an institution designed to promote human rights for all.
Acceptance of the draft resolution will set an extremely concerning precedent. Never before has the GA attempted to re-open an HRC mandate after a mandate holder was appointed. This would effectively undermine the independence, credibility, authority and integrity of the HRC, and hamper its ability to carry out its primary function of promoting and protecting all human rights across the world.
But we should defend the mandate primarily because of our commitment to uphold equality and non-discrimination. That LGBTI rights are human rights is beyond question. Equality and non-discrimination are at the heart of the international human rights order, as exemplified by the UN human rights treaty body practice and the Yogyakarta Principles, which have unequivocally demonstrated the solid legal foundations upon which LGBTI rights are defended. What is most urgent now is to raise awareness about these standards, to identify and overcome the obstacles to their implementation, monitor trends, and to work with and advocate on behalf of those who are persecuted—the stock-in-trade of UN special procedures mandates. It must also be underlined that any approach to overcoming discrimination against LGBTI people must be intersectional. The experiences of LGBTI people cannot be generalized, and the ways in which factors such as race, gender, age, socio-economic status, migration status, among other things, affect their experiences must be clearly reflected in any responses.
Protection of the rights of the LGBTI community has been taken up by the African Commission, which in response to widespread violence perpetrated against persons on the basis of their real or imputed sexual orientation or gender identity in this region, adopted a resolution calling on States to end violence against these oppressed persons and to take measures to secure their protection. Similarly, the Inter-American Commission has reacted to the grave and systematic issues faced by the LGBTI community in the region through a number of concerted efforts – perhaps most notably, through the creation of the Rapporteurship on the rights of LGBTI persons, which became fully functioning in 2014 and reflects the Commission’s commitment to improve upon its work in this area.
Given this, it is long overdue that States accept that LGBTI issues are protected by human rights law instruments and mechanisms and start ensuring that the international human rights machinery leads the way in eradicating violence and discrimination on this basis.
At the time of writing, competing groups are engaged in intense debate, and this contest is likely to attract all that goes with a hotly contested UN resolution. But it is important that all make their voices heard—for the same principles and gimmicks that are today being deployed against the LGBTI community might easily be deployed against the next group of persons tomorrow.