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.

What next? 

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.

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Edward says

December 8, 2016

Thank you for your post.

However, I have not yet fully understood your perception of human rights and international law.

You say: "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."

Why would the success of the African Group's submission create further obstacles to the promotion of human rights? Wouldn't it be a manifestation of what states understand human rights to be and what should be included or excluded? And wouldn't this be in line with a consent based understanding of international law?

I would be very pleased to receive a reply.

Matthias says

December 9, 2016

States are entitled to influence decisions regarding what human rights are to be recognized under international law, and they do so repeatedly. They have also decided to establish a specialized organ to undertake that mission, at least in its preliminary stages. The need to preserve the institutional autonomy of the HRC is an issue of the member States respecting the very bodies they have instituted.

Should the GA, a 'generalist' organ, second-guess the thematic choices of the HRC, the delegated authority in charge of conducting discussion on human rights matters in the UN, the very purpose of having a HRC may be called into question. The impacts -- both short- and long-term -- of such an act would be hard to fathom.

States may agree or disagree about whether certain rights are human rights at all. They do so by voting in different UN and regional organs, and by choosing to ratify specific treaties.

Whatever they do, however, they ought to follow the procedures and respect the institutions they have created to undertake discussions on human rights matters. In creating the HRC the UNGA mandated the Council to "[s]erve as a forum for dialogue on thematic issues on all human rights", which is what the creation of the SOGI purports to do. The HRC had already adopted resolutions on this issue, as usefully recalled in the blog post.

The creation of a mandate does not imply the universal acceptance of a 'new' human right: it merely indicates that it is a thematic worth discussing under the lens of human rights law. In the case of the SOGI mandate the connection with the principle of non-discrimination is obvious.

Does the GA have to 'authorize' the creation of a special mandate? As things currently stand, no. Should the GA feel the need to rein in such powers as the HRC has, the way to do so is to modify its mandate or to review its powers. Trying to revert individual decisions in higher ranking organs is not the proper way to pursue this end.

The fact that certain States find it necessary to stifle the debate on sexual orientation and gender identity issues at HRC level suggests that there is, indeed, a strong need to discuss this matter openly and within the appropriate organ.

Edward says

December 9, 2016

Thank you for your response.

I am uncertain whether the structure and relationship between the UNGA and the HRC is as clreas as you tried to describe it.

You say: "The creation of a mandate does not imply the universal acceptance of a ‘new’ human right: it merely indicates that it is a thematic worth discussing under the lens of human rights law."

From my understanding the creation of a UN Special Procedures mandate includes significantly more than just a discussion on the topic. "With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention [..]"

Bringing alledged violations or abuses to the attention of a state implies that the state has a duty to respect the "human right" which has allegedly been violatd. It therefore is understandable that states, which do not see SOGI as part of human rights acted the way they did.

Also, from your post it seems as if the HRC could create a mandate for everythin they deem a human right. Would you say there are bounbdaries to the authority of the HRC to do that? And if yes, who should "control" if the boundaries are respected? (Mr. Pavlopoulos has posted an excellent piece on the negative consequences of an international body, in the mentioned piece it was the ICC, acting ultra vires or failing to convincingly argue that it acted intra vires)

I would be very pleased to receive a reply.

Matthias says

December 9, 2016

"Bringing alledged violations or abuses to the attention of a state implies that the state has a duty to respect the “human right” which has allegedly been violatd"

Precisely. In the case of the SOGI mandate, as with all other mandates, that would involve grounding its own assessment on existing human rights law. Does the right to life imply positive procedural duties? Today it does. Not because the Council of Europe's intergovernmental organs decided to extend the scope of the right, but because of the evolving interpretation of the European Court.

The same reasoning applies here. Covenant rights are supposed to be recognized "without distinction of any kind, such as ...sex, ...or other status". The SOGI mandate holder will have to assess the extent to which the principle of non-discrimination in the exercise of rights, as contained in ICCPR Article 2(1), for instance, is applicable to forms of differential treatment based on sexual orientation and gender identity.

Rather than assume that the establishment of a SOGI mandate would necessarily be ultra vires, it seems arguable to me that the terms "sex" and "other status" may be applicable to LGBTQ individuals, and may provide grounds for assessment of treatment on the basis of the principle of non-discrimination. If this is so, then there is no a priori reason to reject the mandate as incompatible with the goals of the HRC.

As to the outer limits of the power of the HRC to establish mandates, it would seem that the question is truly left to the discretion of its 47 member States. Should the GA retain a veto right over individual decisions of the HRC? Perhaps, but it certainly does not seem to be the case today. The GA could choose to restrict the powers it has granted to the HRC, or establish a review mechanism, but it has so far not done so. More importantly, however, assuming the existence of an implicit power to censor individual decisions adopted by the HRC seems truly dangerous to the independent exercise of its functions.

Njiti Batty says

December 13, 2016

Thanks for an interesting work and comments:

Well, my take is that the HRC 'did what it was supposed to do and it did it perfectly'by doing all as vindicated above in this article. Reasonably, it is imperative to note that the availability of the 'INTERNATIONAL HUMAN TREATY'on SOGI does not come from air and it is not a simple thing, it has to take a substantive and procedural step. It is important to note that having no specific unique instruments on SOGI within the international and regional human rights system is not reason not to promote and protect such rights or a warrant to violate the same. Such gaps may be filled by the existing ambit of the international and regional law and even domestic laws. A simple question would assist to answer 'the matter in issue i.e SOGI': "HOW WERE MATTERS OF SPECIAL GROUPS/VULNERABLE GROUPS [women, child, refugees, indigenous groups,now persons with disabilities (PWDs)etc BEING DEALT PRIOR THEIR PARTICULAR INSTRUMENT?". Let me advance theories to prove that theoretically there is the international human rights treaty on SOGI

1. Most if not all the human rights treaties, signed, ratified and acceded after the existence of UN Charter, 1945; the Universal Declaration of Human Rights (UDHR),1948; Both Covenants such as the International Covenant on Civil and Political Rights, 1966 & International Covenant on Economic, Social and Cultural Rights, 1966 as well as the regional founding human rights instrument OWES THEIR ORIGIN on the mentioned. One shall quote me wrong if at all when SOGI treaties come into realities shall not refer to the existing leading international and regional instruments.

2. The Wording of the substance of the law within the certain and specific principles such as on the principle of NON-DISCRIMINATION by exposing words not limited to 'all forms of discrimination, any other status,any status, any other factor etc[As already emphasised in here]. The preservation of words or open ended ideology may include the so called 'new rights'. Through philosophy such as 'Logical analogy' one may come to the conclusion that 'human rights are interrelated' and for that case all the fundamental principles of human rights stand even for SOGI to give one example such as the principle of equality before the law.
Coming to the matter of the availability of the human rights instrument on SOGI, this is the question of non-binding and binding instruments. As a well known saying 'Rome was not built a single day'... I cannot remember in mind a treaty which came from no where without the existence of non binding instruments 'soft-law' such as the decisions, declarations, recommendations, resolutions etc and if such conventions or charters or protocols are there; are very few. So, this is the right move and what I see is what is normally done by the UNGA when it comes to the voting as to an important to the international community. The decisions taken by all the parties [84 States voted in favour of the draft amendment, 77 voted against, 17 abstained, and 15 did not take part in the vote] cannot be undermined. Each one had the right to do so and as much as one would have withed the UNGA to bless the decision of HRC on the United Nations mandate of the Independent Expert on SOGI, TIME IS YET TO COME.

Edward says

December 13, 2016

Dear Matthias, dear Mr. Batty,

from the need of protection a right does not conclusively follow.