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Home EJIL Analysis What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

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.

Background

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.

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9 Responses

  1. Jakob Cornides Jakob Cornides

    What a clear-cut and simple world we are living in! On the one hand, we have “human rights defenders”, and on the other, the … “human rights opponents”?

    Where the roles are from the outset assigned in this way, a sincere and constructive debate seems hardly possible. We just have to accept that a battle is going on between the forces of light and the forces of darkness, and we all know which side we are on, don’t we? And those who happen to disagree should at least remain silent.

    What would really be needed here is a debate on the nature of human rights, and in particular of those rights which the newly appointed (“long overdue…”) Special Rapporteur is going to deal with. Are these human rights a subject of general agreement? Or are they a political project, forcefully pushed for by some, but – legitimately – opposed by others? Are they “pre-positive” rights whose existence does not depend on any formal enactment?

    As far as I am concerned, I do believe in human rights in the sense of rights that must be the same for all of us. By contrast, I am not really convinced that human rights can take the form of group-specific rights such as “women’s rights”, “Afro-Asian Rights”, or whatever else comes to mind. But even accepting this debatable premise, it should be noted that what sets “LGBT” off from the rest of society is not any innate characteristic, but their behaviour. Nothing else but their behaviour. (A distinction must be made here with regard to intersex people, who are indeed born with an indeterminate sexual identity … but it seems that this is not really where the focus of the debate lies.

    Does one acquire specific “rights” thanks to one’s sexual behaviour?

    Is sexual behaviour the only category of behaviour that deserves such special protections? If not, will we soon get a special rapporteur on “smokers’ rights”, “cocain consumers’ rights”, etc?

    The fundamental issue here, unfortunately not discussed in the above post, is that the behaviour for which “LGBTI” stands is considered deeply immoral, if not pathological, in many parts of the world – notably in the countries that are opposing the appointment of the new Special Rapporteur. And it has been considered so nearly everywhere and at all times throughout human history. It is the “West”, i.e. Western Europe and America, that are the cultural exception (and this only since less than 20 years). The other countries just are maintaining the attitude they have maintained throughout their history – and this happens to be the same as the “West” had until a very short time ago.
    One might object that many of the countries opposing this new type of human rights are Islamic and African countries, and that many of them have no democratic governments. That may be the case, but it is fallacious. There is very good reason to believe that on this specific point those non-democratic governments are in full agreement with the people they are ruling.

    It is, by the way, plainly wrong to affirm that “in many of these States being lesbian, gay, bisexual, transgender, or intersex is a criminal offence”. It is hard to understand how academics, and indeed lawyers, can fail to see the difference between “to be” and “to do”.

    It should furthermore be noted that the UN are a member-state-driven organization, not a committee-driven organization. The endorsement of a policy (and an appointment) that has not found the endorsement even of a majority of HRC members is certainly not a “mere formality”.
    Finally, it seems a somewhat stark statement that the document known as the “Yogyakarta Principles” has “demonstrated the solid legal foundations upon which LGBTI rights are defended”. While it is no doubt true that persons with unusual sexual behaviours are still the bearers of the same human rights as everyone else, some of the rights claims made in that documents are rather spurious. Indeed, I would go as far as saying that if Mr.Muntabhorn was one of the drafters, this appears to qualify him rather as a political ideologue than a serious human rights lawyer.

    Quite honestly, I must confess that I am not at all worried by the opposition against his nomination. On the contrary, I would be worried if there were no opposition.

  2. Alison Wesley

    Jakob, many thanks for your interesting engagement with the above. I thought it might be helpful to clarify something about the nature of being LGBT – the distinction you draw between “innate characteristics” and “behaviour” is, I believe, a false one. There has long been a consensus amongst the medical profession that biological forces influence behaviour – hormones, neurotransmitters, the ratio of grey to white matter in the prefrontal cortex. For various reasons outside their control, many people are attracted to, fall in love with and – yes Jakob – have sex, with people who are not of the opposite, binary gender to themselves.

    Let me ask, Jakob – when did you ‘choose’ to be attracted to women? What age were you when you ‘chose’ to act like a man? Quite rightly, you might reject such questions as ridiculous. You never chose: why is it so difficult to imagine that neither did a woman who is attracted to other women?

    Setting aside the spurious claims you make about world history – I’d recommend Googling ‘shunga’ if you’d like an appreciation of diverse sexualities in historical Japan, for instance – ultimately, your reduction of LGBT identities to ‘sexual behaviours entitling people to rights’ demonstrates a distinct lack of awareness regarding the nature of the discrimination LGBT people face. It is protection from this systematic discrimination which entitles us to specific rights, and not the nature of our sexual behaviour.

  3. Thanks for raising the issue, HRC Essex!
    Dr. Jakob’s post shows how worrying is the misunderstanding about sexual orientation and gender identity (SOGI), not only among African or Islamic countries but also within international scholars! I will not start a discussion on SOGI but one point should be clear: here the question is not to grant “special” rights to anyone but to ensure that everyone – as a human being – can enjoy the same (basic) rights. In other words, – dr. Jakob (presuming that you are heterosexual) – if I follow your reasoning, I should ask: are you sure that you are not defending “heterosexual”‘s special rights?
    By the way, if read until the end, the post explains very well why this move is dangerous from a human rights perspective, not (only) for LGBT people (and not LGBT rights!).

  4. Jakob Cornides Jakob Cornides

    Alison:

    “The distinction you draw between “innate characteristics” and “behaviour” is a false one.”

    This distinction is simply the difference between “to be” and “to do”. It seems fairly self-evident, and hardly deserving of any extended argument, that both are not the same.

    You say that “there has long been a consensus amongst the medical profession that biological forces influence behaviour – hormones, neurotransmitters, the ratio of grey to white matter in the prefrontal cortex. For various reasons outside their control, many people are attracted to, fall in love with and have sex, with people who are not of the opposite, binary gender to themselves.”

    That may indeed be so. I have not denied it, but I would also caution you against making any strong statement on this subject. The truth is that we don’t know exactly what makes a person feel sexually attracted to another person of the same sex. One hypothesis, albeit completely unproven, is that it is genetic. Others say it might be induced through some early childhood trauma. Others might say that one might indeed choose, or even be educated to become, homosexual. Or perhaps it might be a combination of all these factors.

    Very frankly, I don’t have any strong theory on this.

    But even conceding (not only for argument’s sake, but because it even might be true…) that it were as you say. Then we would be in agreement that some people, for reasons outside their control, “are LGBT”. How does this make the distinction between “to be” and “to do” false, or irrelevant?

    I have never heard of any country in which people are punished because they are LGBT. Wherever such laws exist, and whatever one thinks of them, they are directed against what people DO.

    I think that making this distinction is not false, but it is indeed the pre-condition for any serious debate on this subject-matter.

    The real question appears to be: if people ARE LGBT, does that confer them a moral right to DO LGBT? That seems to be your point of view – very fine, but please admit at least that the one does not necessarily follow from the other, and that something important is still missing in your argument.

  5. Martin Scheinin Martin Scheinin

    Jakob Cornides has gone simply too far with his offensive ranting that seeks to intimidate or has the effect of intimidating persons who write or would like to write on this blog. Here’s a quote of what he just wrote and published, on this very forum:

    “I would go as far as saying that if Mr.Muntabhorn was one of the drafters (of the Yogyakarta Principles – MS), this appears to qualify him rather as a political ideologue than a serious human rights lawyer.”

    That is a personal attack, against not only Vitit Muntarbhorn as a respected and serious expert of human rights law but also against many other scholars and practitioners possessed with a great deal of subject-matter expertise, legal-analytical skills and knowledge, and an unwavering commitment to the integrity of international human rights law as the normatvity that governs their work.

    Yes, my own name is there among the drafters and signatories. But so are the names of many other good colleagues whom Cornides now has chosen to seek to stigmatise, discredit and attack. Here are the names, for your convenience: http://www.yogyakartaprinciples.org/annex/ – From Philip Alston to Roman Wieruszewski, from Mary Robinson to Michael O’Flaherty, from Asma Jahangir to Manfred Nowak, from Yakin Ertürk to Elizabeth Evatt, etc.

    Dear Editors, let me suggest that a line has been crossed, be it a line of criminal law or one of inclusive and decent editorial policy.

  6. Jakob Cornides Jakob Cornides

    Dear Martin Scheinin,

    I fail to see how my comment can have the effect of “intimidating or seeking to intimidating” people. Could you please explain that?

    And I find it quite astonishing to read that I have “crossed a line of criminal law”. Could you substantiate this assertion?

    Who is trying to “intimidate” and “stigmatize”? Not you?

    If you want a fuller picture of why I think the Yogyakarta principles are a deeply flawed document, you can read it here:

    https://works.bepress.com/jakob_cornides/20/download/

    Given the reasons that are extensively laid out in that paper, you will understand how I come to the view that the authors of such a document must be qualified as political ideologues rather than serious minded human rights lawyers.

    You need not share that view, but you should recognize that this is based not on a personal prejudice against any of the authors, but on a thorough assessment of their work.

    Yes, I indeed think that if you are the author of a document that looks more like an attempt at political agenda-setting rather than like a sober legal analysis, you have to live with the impact such a document may have on your reputation as a scholar. What is wrong with this?

    If you want to defend the Y.P. against my critique, please do so – but you should offer more than a mere argumentum ex auctoritate (“Muntabhorn, Scheinin, and others are respected experts, and Cornides isn’t”).

  7. The reason for opposition to this proposal at the UN and at the Human Rights Council is that SOGI is an ill-defined term. Moreover, proponents point to characteristics that do not adhere.

    While there are medical and scientific bodies that assert the innateness and immutability of same-sex attraction, there is paltry science to back it up: no gay gene, for instance. Studies on the brain may show a correlation but simply cannot show causality. Moreover, most of the studies are too small and not loginitudinal. Even pro-gay scientists say homosexuality is impossible to define. They also say it is remarkably plastic, especially in women, therefore cannot be considered immutable.

    Member States also view this as a backdoor way for advocates to get SOGI considered as a new category of nondiscrimination. Any straight up vote along these lines would certainly go down to defeat. Even recent “wins” at Geneva are based less on full support than on coercive measures by the EU, UN and US on weaker states. This is why so many of them tend to abstain.

  8. Stefano Gennarini

    The article ignores an important factor that will determine the outcome of the bit on the mandate in the General Assembly. Some countries will vote against the mandate simply as a matter of principle, to show that the General Assembly remains the UN body with the highest authority in the UN system. That authority includes the ability to review decisions of subordinate bodies like ECOSOC and HRC.

    On the substance…

    I have to agree with Dr Cornides about the claims made in the Yogyakarta document and the “experts” who underwrote it. It is more an exercise in hopeful activism than sober legal analysis.

    There are some glaring oversights in the document. Most importantly, the fact that when most all human rights treaties were agreed and ratified by states the majority of the world prohibited sodomy and other forms of “sexual misconduct.” Still today 76 countries prohibit sodomy and virtually all have some forms of restrictions on consensual sexual conduct between adults, including incest laws, as well as divorce laws that penalize infidelity.

    In light of this, Unfettered sexual autonomy simply cannot be considered protected as part of the right to privacy or even a category of non discrimination based on behavior such as freedom of religion. Laws that proscribe sexual autonomy in different forms make such a reading of international treaties fairly disingenuous.

    Sexual preferences and behavior are not protected by international law outside of the context of the right to freely marry and found a family and decide freely and responsibly on the number and spacing of children. This only applies to the union of a man and a woman.

    Ignoring this will only antagonize States that hold fast to their sexual mores. It also undermines the integrity of human rights and international law.

  9. Marko Milanovic Marko Milanovic

    The discussion in this comment thread has unfortunately become uncivil and unhelpful. Several comments have been deleted/moderated on those grounds, and further response from the editors will follow shortly. In the meantime this comment thread is closed for any further comment.