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The Yogyakarta Principles on Sexual Orientation and Gender Identity: Marking ten years of SOGI jurisprudence
South Africa as member of the African Group has signed onto a statement delivered by Botswana at the Third Committee of the General Assembly in support of a position suspending the operation of the first independent expert on SOGI, Mr. Vitit Mutarbhorn appointed by the Human Rights Council. The letter by the African Group which has been surprisingly signed onto by South Africa departs sharply from the South African Constitution’s commitment to universal human rights. Some of the more egregious statements in the letter need to be highlighted in full.
“We (African Group) are even more disturbed at the attempt to focus on certain persons on the grounds of their sexual interests and behaviours, while ignoring that intolerance and discrimination regrettably exist in various parts of the world, be it on the basis of colour, race, sex or religion, to mention only a few. These attempts undermine not only the intent of the drafters and signatories to various human rights instruments, but also seriously jeopardize the entire international human rights framework as they create divisions”.
“The adoption of the resolution 32/2 entitled ‘Protection against violence and discrimination based on sexual orientation and gender identity’ in June 2016 is a clear illustration of these attempts. The Group is therefore concerned that non-internationally agreed notions such as sexual orientation and gender identity are given attention, to the detriment of issues of paramount importance such as the right to development and the racism agenda”.
“We are alarmed that the Council is delving into matters which fall essentially within the domestic jurisdiction of States counter to the commitment in the United Nations Charter to respect the sovereignty of States and the principle of non-intervention. More importantly, it arises owing to the ominous usage of the two notions: sexual orientation and gender identity. We wish to state that those two notions are not and should not be linked to existing international human rights instruments”.
“In this regard, the African Group has tabled a resolution to defer the consideration and action on Human Rights Council resolution 32/2 of 30 June, 2016 in order to engage in further discussion and consultations on the legality of the creation of this mandate. We therefore call for the suspension of the activities of the appointed Independent Expert pending the determination of this issue.”
South Africa’s endorsement of this letter betrays its anti apartheid history, its constitution and its own actions on the international stage supportive of LGBT rights, for the following reasons:
Firstly, the notions of sexual orientation and gender identity are not notions outside international law. The principle of universality of rights and the principle of non-discrimination on any status are enshrined in the Universal Declaration of Human Rights, and the ICCPR. Further the Human Rights Council under OP2 of GA resolution 60/251 has the responsibility for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.”
With respect to the specific articulation of SOGI within the framework of universal human rights, it is South Africa in fact which can take credit for the development of international law on sexual orientation and gender identity through the two resolutions on SOGI at the Human Rights Council which South Africa sponsored and supported. Further to describe the international legal developments of sexual orientation and gender identity as ‘ominous’ ignores the fact that the South African Constitution in fact enshrines non discrimination on grounds of sexual orientation and the South African Constitutional Court has developed jurisprudence aimed at protecting those who are discriminated on grounds of sexual orientation and gender identity.
Secondly, the attempt to pit the right to development and the anti racism agenda against the SOGI mandate intentionally ignores the fact that the SOGI mandate is envisaged as an intersectional mandate. In a preambular paragraph, the mandate is tasked with ‘Undertaking to support its broad and balanced agenda, and to strengthen the mechanisms addressing issues of importance, including fighting racism, racial discrimination, xenophobia and related intolerance in all their forms’. Resolution 30/2 of the HRC in operative para 2 is explicitly committed to ‘address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity.’
Thirdly, the use of notions of sovereignty of states and non intervention to block the mandate, willfully misunderstands the role of the Independent Expert. The Independent Expert as per his mandate in resolution 30/2 is expected to ‘assess the implementation of existing international human rights laws and standards’, ‘to raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity’, ‘to engage in dialogue and consult with States and other relevant Stakeholders’, ‘to work in cooperation with States in order to foster the implementation of measures that contribute to the protection of all persons against violence and discrimination based on sexual orientation and gender identity’. The fact that concerns with respect to violations on grounds of sexual orientation and gender identity will be raised by the Independent Expert cannot of itself amount to a violation of sovereignty especially when the mandate holder task is laid down in language such as ‘assess’, ‘raise awareness’, ‘engage in dialogue’, ‘work in cooperation’ etc.
Fourthly, the call for suspension of the mandate is an unprecedented step of blocking the work of the Human Right Council. To aim to suspend the working of a duly appointed mandate holder is to cast a spanner in the delicate machinery of the institutional architecture of international human rights institutions. Now any country dissatisfied with the creation of a mandate in the Human Rights Council can attempt to overturn the decision through the Third Committee. Surely South Africa which is a member of the Human Rights Council does not want to be known as striking the first nail into the Human Rights Council?
Beyond the very good legal and policy reasons why South Africa’s support for this resolution is deeply problematic is a fundamentally ethical one, going back to the origin of the Constitutional republic of South Africa. There was a time when South Africa supported struggles based on sexual orientation and gender identity and the reason why it did so is best exemplified by the remarkable statement by Ambassador JM Matija when he moved the first resolution on sexual orientation and gender identity at the Human Rights Council in 2011. As Ambassador Matija put it
“All of us, who were engaged in liberation struggles, without exception, drew our aspiration from the 1948 Universal Declaration of Human Rights, whose very opening preambular paragraphs became a clarion call to fight for freedom…”
“When we were imprisoned, tortured and forced into exile, we received moral, political and material support from all sections of society all over the world”.
“We never said we cannot accept your support due to gender identity. Our migrants, refugees and those who are continuously visited by severe hunger, receives help from everyone and we never say, we don’t want help from you due to your sexual orientation and gender identity. When we seek jobs, investments, capacity building and technology, we never say only from that section of society and not from that section of society, depending on gender identity.”
South African leadership was crucial in breaking the false notion that LGBT rights were a western import. It was South Africa’s stewardship which helped us to assert that there were LBGT people in every part of the globe and the global scale and nature of violations faced by LGBT people required global action.
By supporting a statement which attempts to block the functioning of the first Independent Expert on SOGI, and describing the emergence of the concept of SOGI as ‘ominous’, South Africa does grave disservice to its own luminous history. One of the great contributions of the anti-apartheid struggle was that it made possible for one to see that discrimination had many facets and a true liberation movement would commit to combating the many facets of discrimination. Within Ambassador JM Matija’s vision there is no primary and secondary struggle, hence South Africa will move the resolution on violence and discrimination on grounds of sexual orientation and gender identity as well as support the anti racism agenda and the development agenda.
South Africa which in 2011 was the beacon of hope for LBGTI communities around the world, today seems to have reversed its position. A lot hinges on South Africa’s vote, and LGBT communities around the world are looking to see if the South African government hearkens to its own constitutional conscience and dissociates itself from a resolution which is a betrayal of all that South Africa has stood for at the international level.
We call on our comrades within South Africa to do all that they can to ensure that that on 7th November, 2016, their government does not betray its Constitutional commitments as well as the hopes and aspirations of millions of LGBT persons around the world.