On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.
Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.
This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.
The day’s proceedings
When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn.
In the highly contested GA SOGI vote, some States chose not to vote along regional lines- it was the position of these States that ultimately proved decisive. 84 States voted in favour of the draft amendment, 77 voted against, 17 abstained, and 15 did not take part in the vote.
Significantly, a number of African states and member states of the Organization of Islamic Cooperation (OIC) elected to either vote in favour of the amendment or abstain. Had there been a bloc vote by the African States and the OIC, the amendment would not have passed.
Of particular note, South Africa- having failed to support the resolution creating the mandate in June 2016- voted in favour of the amendment, declaring that it was basing its vote on its “constitutional imperative”. Similarly, Cape Verde voted in favour, while Liberia, Rwanda and Somalia chose to abstain. Some African states such as Equatorial Guinea and Sao Tome and Principe did not take part in the vote.
Although the member states of the OIC overwhelmingly voted against the amendment (a total of 46 member states), a handful of members did not: some of whom voted in favour (for example, Albania and Turkey), while some abstained (for example, Guinea Bissau and Kazakhstan), or did not take part in the vote (Lebanon, Mozambique, Sierra Leone, Tunisia and Turkmenistan). For a full list of States who voted against or abstained, see here. The resolution, as amended, was then adopted with 94 votes in favour, 3 against (Belarus, Israel, and Mauritius), and 80 abstentions.
On the need for a deferral: the substantive argument
Ahead of the vote, the African Group – represented by the Permanent Representative of Botswana to the United Nations –maintained that suspension of resolution 32/2 was necessary in order to “allow time for further consultations to determine the legal basis upon which the mandate of the special procedures established therein will be defined.” In this regard, they submitted that there is “no definitional basis in international human rights law” for the concept of sexual orientation or gender identity, in the absence of which an international expert on this issue cannot be appointed.
It is true that there is no international treaty that spells out the need to protect people based on their sexual orientation or gender identity, but it is disingenuous to claim that this should result in a bar to the passing of a resolution. The need to protect individuals against discrimination has been prioritised over any alleged vagueness surrounding concepts that have formed the basis for human rights protections, such as freedom of religion or belief (see, for example, report of the former special rapporteur on freedom of religion or belief A/71/269). Indeed, the Norwegian delegate pointed out that there are a number of special procedure mandates that lack an explicit treaty based definition.
It must also be recalled that previous resolutions on human rights, sexual orientation and gender identity were adopted (see resolution 17/19 in 2011 and resolution 27/32 in 2014), and that the central issue here is non-discrimination, a universally accepted legal principle.
On whether their proposal amounts to a challenge to the authority of the HRC: the procedural argument
The African Group argued that their proposal was “not in any way meant to question the mandate or authority of the HRC to create special mandates or special mandate holders….rather, the resolution seeks to allow member states time to come to [a] common understanding on the notion of sexual orientation and gender identity, given that international law is silent on this issue and that the mandate for the office is subsequently ambiguous.”
The African Group noted that the HRC is a subsidiary organ of the GA, which possesses the power to review HRC mandates – in doing so, the Group made reference to three instruments, two of which explicitly define the status of the HRC as a subsidiary organ (operative para.1 of GA resolution 60/251, the founding instrument, and operative para.3 of GA resolution 65/281) and Article.10 of the UN Charter, which states that the GA “may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organ provided for in the Charter”.
That the HRC is a subsidiary organ of the GA is made plain in its founding instrument and is not in dispute. However, two points are of material importance to any analysis concerning the relationship between the GA and HRC.
First, the HRC enjoys a great amount of procedural and substantive autonomy, as laid out in GA resolution 60/251– a necessary allowance that enables it to perform its primary function of promoting and protecting human rights globally.
Second, it should be indicated that the GA must carry out its functions in accordance with human rights (see Art. 13 of the UN Charter) – a fact that the African Group is clearly cognizant of, given that it has repeatedly asserted that sexual orientation and gender identity fall outside the scope of international human rights law.
Had the African Group’s submission been successful one could have reasonably predicted that future resolutions would be reopened, thereby creating further obstacles to the promotion and protection of human rights, and undermining the institutional authority of the HRC.
As it stands, the GA’s vote on the SOGI mandate may mean that the only precedent for reopening HRC resolutions (council resolution 24/24 on “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights”) will be classified as an outlier (for further details, see here).
The role of special experts cannot be understated (see, for example, the Vienna Declaration and Programme of Action), but neither should it be misrepresented – concerns with respect to national sovereignty should be placated by the language used in 32/2, which underscores that the role of the expert is collaborative and supportive, and not adversarial.
This may not be the end of the story, as there is potential for the revival of the African Group’s proposal in GA plenary. Based on general practice this would be unusual. However, the close vote on the 21st, and the real possibility that those who had abstained or did not take part in the vote may change their position, means that the issue is far from settled. Indeed, one of the precedents involving the overturning of a vote at this stage relates to sexual orientation and gender identity—although on that occasion it was to reverse a Third Committee vote, and thereby achieve a favourable outcome for the promotion of LGBTI rights.
Given the potential for a vote overturn, there must be continued efforts to call attention to the precedential nature of any vote to re-open agreements reached in Geneva in New York. Indeed, such a development, should it materialise, not only carries serious negative institutional implications for the UN human rights system, but presents several challenges, which may be condensed into the following three main points.
First, it increases the potential for politicisation of the debate, especially through linkages with issues unrelated to human rights—a consequence of a shift from a human rights specific setting to a forum with a more general mandate. Second, the decision-making process in New York is more opaque than that in Geneva- a function largely of the greater access that civil society enjoys to processes in the latter. Third, duplication of debates in New York further undermines recent efforts made to rationalise the division of work between New York and Geneva in regard to human rights. It may be the case that concerns over future moves to reopen sensitive resolutions can only be truly addressed by making the HRC a main body of the UN- this matter is set for a review beginning in 2021.
It must also be mentioned that some of the representatives of the African Group and OIC who voted against the approved amendment declared that they would disassociate themselves from the resolution, and would not recognize the independent expert. These pronouncements make clear the extent of the long-term challenges ahead.
However, while any celebrations may be premature, this vote at the very least underlines the fundamental importance attached to the protection of LGBTI rights, and should, it is hoped, mark the beginning of improved attention to, and action against, the suffering and discrimination endured by LGBTI persons worldwide.