III Understanding the SOGI Resolution 2016

The voting results

The culmination of the entire process was the vote which was held on June 30, 2016. After the resolution was introduced by Chile, there were 17 votes in all which can be grouped into four broad categories.[1]

  • The vote on a no-action motion proposed by Saudi Arabia which was rejected (15 yes, 22 no and 9 abstention).
  • The votes on the eleven separate amendments, out of which seven were passed with varying majorities.
  • The separate votes on paragraphs of the resolution, all of which were rejected.
  • The final vote on the resolution, as amended, which was passed (23 yes, 18 no and 6 abstention).

The proceedings began with the tabling of a no-action motion. The no-action motion was a strategic manoeuvre which aimed to make the point that the issue was so problematic that it should not even be brought to the floor of the Council and did not merit the dignity of discussion. Once this was defeated, the next strategy adopted by those opposed to the resolution was to introduce a slew of hostile amendments all of which sought to subvert the intent and purpose of the resolution. This strategy was partially successful, as seven out of the eleven amendments got through. This was followed by a vote on separate paragraphs that was defeated. Finally, the Council voted on the amended resolution as a whole, and this vote passed.

There were over 78 interventions made by over 31 states over the course of the debate spanning the four sections highlighted above. (A descriptive account of the vote is available in Annex II)

The resolution on protection against violence and discrimination based on sexual orientation and gender identity was finally adopted by a vote of 23 in favour, 18 against and 6 abstentions. The result of the passing of the resolution was that the Council decides to appoint, for a period of three years, an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, with the mandate to 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; raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity, and to identify and address the root causes of violence and discrimination; and engage in dialogue and to consult with States and other relevant stakeholders. The Council also requests the Independent Expert to report annually to the Human Rights Council, starting from its thirty-fifth session, and to the General Assembly, starting from its seventy-second session.

The result of the vote was as follows:

In favour (23): Albania, Belgium, Bolivia, Cuba, Ecuador, El Salvador, France, Georgia, Germany, Latvia, Mexico, Mongolia, Netherlands, Panama, Paraguay, Portugal, Republic of Korea, Slovenia, Switzerland, The former Yugoslav Republic of Macedonia, United Kingdom, Venezuela and Viet Nam.

Against (18): Algeria, Bangladesh, Burundi, China, Congo, Côte d’Ivoire, Ethiopia, Indonesia, Kenya, Kyrgyzstan, Maldives, Morocco, Nigeria, Qatar, Russian Federation, Saudi Arabia, Togo and United Arab Emirates.

Abstentions (6): Botswana, Ghana, India, Namibia, Philippines and South Africa.

It is clear that no party completely got what they wanted. The sponsors of the resolution obviously wanted the passage of the resolution and the rejection of all hostile amendments. What they got instead was the passage of the resolution in which seven out of the eleven amendments were passed. So the resolution, as passed, was very different from the resolution as tabled.[2]To understand the implications of the amended resolution will require a detailed analysis of both the amendments as well a broader understanding of what the effect of the amended resolution would be.

An analysis of the Hostile Amendments

The strategy adopted by the OIC states was to propose hostile amendments, with the aim of derailing the resolution from its stated intent and purpose. Pakistan, on behalf of all OIC states other than Albania, proposed eleven amendments to the text of the resolution. Pakistan was quite explicit about the hostile intention underlying the amendments stating that:

At a time when the Council needs to return to its foundational principles of cooperation and mutual respect for each other’s cultural and religious particularities, this draft resolution, we believe will create further mistrust within the Council which should be avoided. Mr. President, for these reasons, OIC member states, except Albania, present eleven amendments form L.71 to L.81 to the draft resolution entitled ‘Protection against violence and discrimination based on sexual orientation and gender identity.’

The amendments tabled were L.71 to L.81

L.71

‘Protection against violence and discrimination due to any basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’

Instead of:

‘Protection against violence and discrimination based on sexual orientation and gender identity’

L.72

‘Recalling further all Human Rights Council resolutions relevant to protection against violence and discrimination due to any basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’

Instead of:

Recalling further Human Rights Council resolutions 17/19 of 17th June 2011 and 27/32 of 26th September 2014’

L.73

Stressing the need to maintain joint ownership of the international human rights agenda and to consider human rights issues in an objective and non-confrontational manner.

L.74

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.

L.75

Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights issues.

L.76

Underlining the fundamental importance of respecting relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities.

L.77

Deploring the use of external pressures and coercive measures against States, particularly developing countries, including through the use and threat of use of economic sanctions and/or application of conditionality on official development assistance, with the aim of influencing the relevant domestic debates and decision-making processes at the national level.

L.78

Concerned by any attempt to undermine the international human rights system by seeking to impose concepts or notions pertaining to social matters, including private individual conduct, that fall outside the internationally agreed human rights legal framework, and taking into account that such attempts constitute an expression of disregard for the universality of human rights.

L.79

Underlining that the present resolution should be implemented while ensuring respect for the sovereign right of each country as well as its national laws, development priorities, the various religious and ethical values and cultural backgrounds of its people, and should also be in full conformity with universally recognized international human rights.

L.80

‘Deplores acts of violence and discrimination, in all regions of the world, committed against individuals because of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’

Instead of:

‘Strongly deplores acts of violence and discrimination in all regions of the world, committed against individuals because of their sexual orientation or gender identity’.

L.81

To replace Op 3, 4, 5, 6, 7 and 8 with one operative paragraph reading:

‘Requests the High Commissioner for Human Rights to present a report to the Thirty fifth session on protection of all individuals against violence and discrimination committed against individuals because of their race, colour sex, language, religion, political or other opinion, national or social origin, property, birth or other status with a focus on major challenges and best practices in this regard.’

The eleven amendments could be grouped in the following ways:

  • Amendments which sought to strip the words of the specificity of the language of sexual orientation and gender identity and replace it with other categories of discrimination such as ‘race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Amendments L 71, L72, L80). All these amendments were rejected.
  • Amendments which sought to introduce problematic notions of cultural relativity, importance of respecting domestic debates, importance of respecting regional, cultural and religious values systems in interpreting human rights (Amendments L 73, L.75, L.76, L.78 and L.79). All these amendments were passed.
  • Amendments which were not problematic on substantive grounds but were moved with hostile intent. These included an amendment on combating racism and on deploring the use of coercive measures against developing nations (Amendments L. 74 and L.77). These amendments were passed.
  • An Amendment which went to the heart of the resolution and replaced the operative paragraph setting up the mandate of the Independent Expert (Amendment L. 81)

The hostile amendments which were rejected were to do with those which sought to strip all references to sexual orientation and gender identity in the preambular paragraphs of the resolution and replace them with more general categories of discrimination. (L.71, L.72 and L.80) Thus the efforts to invisibilise sexual orientation and gender identity and to remove the references to the specificity of the oppression based on sexual orientation and gender identity failed. The other key hostile amendment that failed, sought to replace the operative paragraphs calling for the establishment of an Independent Expert with a call for a Report of the High Commissioner on protection of all individuals against violence and discrimination under more general categories of discrimination. (L.81)

What stood preserved, in unequivocal terms, was the fact that the Independent Expert stood established, that the Independent Expert had a mandate to examine violence and discrimination based on sexual orientation and gender identity, and the fact that the mandate of the Independent Expert built upon the previous resolutions of the Council on sexual orientation and gender identity.

The hostile amendments which succeeded were all made to the preambular paragraphs and could be grouped as follows:

1) Amendments (L.75, L.76, L.77 and L.78) which invoked the idea of respecting ‘regional, cultural and religious value systems’, ‘domestic debates’, ‘sovereign priorities’ and expressing concern around ‘concepts pertaining to social matters including private individual conduct’.

2) Amendment (L73) which stressed the need to ‘maintain joint ownership of the international human rights agenda and to consider human rights in an ‘objective and non confrontational manner’.

3) Amendment (L.74) which supported ‘fighting racism, racial discrimination, xenophobia and related intolerance in all its forms’.

4) Amendment (L.77) which deplored the use of ‘economic sanctions and conditionality on official development assistance’ particularly against ‘developing countries’ with the aim of influencing domestic debates.

Amendment L.74, with its commitment to fighting racism, is really an attempt at using an issue that has universal consensus, to try and dilute the agenda of fighting discrimination on grounds of sexual orientation and gender identity.  It tries to pit the importance of sexual orientation and gender identity against the importance of race as a human rights issue. However, this way of framing the two issues as mutually distinct and separate and perhaps even hostile to each other does injustice to the intent of the resolution. The resolution in operative paragraph 2(e) and 2(b) calls for fighting ‘multiple, intersecting and aggravated forms of violence’ as well as expresses commitment to addressing ‘root causes of violence and discrimination’. Ironically, though the intent of the movers of the amendment was hostile, there is no contradiction between L74 and the resolution, and in fact there is a strong synergy between the amendment and operative paragraph 2.

Amendment L.77 with its language of ‘coercive measures against developing states’ is another attempt at reframing the debate. This aims at exploiting the very real divide between developing and developed states to make the point that this resolution is a developed country issue imposed on developing countries. The fundamental point to note is that the sponsors of the resolution are not developed countries, but rather developing countries, hence the framing of the SOGI resolution as a battle between developed and developing countries is a false dichotomy. To expose the motivation of the movers of the amendment does not necessarily mean that the sponsors are against the language of the amendment. The ‘deploring of coercive measures’ is something on which the sponsors of the resolution are unlikely to differ. As the resolution movers noted in their concept note, their aim was ‘dialogue’ hence there is no disagreement on the substance of the amendment. Clearly, the substantive content of the resolution does not authorize coercive measures and hence the amendment itself exhibits misplaced anxiety at best, and at worst it is mischievous in its intent.

Amendment L.73 on the joint ownership of the human rights agenda is more problematic. The founding document of the Human Rights Council, General Assembly Resolution 60/251, clearly outlines ‘objectivity, cooperation and genuine dialogue’ as principles on which the ‘promotion and protection of human rights’ is based. Hence, while there can be no quarrel with the amendment seeking objectivity and a non confrontational manner, the question of joint ownership however raises some questions. It cannot be the case that unless and until every human rights issue has ‘joint ownership’, the issue cannot move forward. The language of joint ownership as used by the movers of the amendment has precisely that connotation. You cannot move forward on sexual orientation and gender identity until and unless the issue is jointly owned, i.e. has complete consensus. It’s interesting to note that the founding document of the Human Rights Council (GA Res 60/251) while it stressed ‘objectivity, cooperation and genuine dialogue’ did not use the language of joint ownership. The understanding is that ‘genuine dialogue’ is the basis, not joint ownership, which can only be an aspiration not a principle of fulfilling the mandate of ‘promotion of human rights’

The most noxious of the amendments to pass belonged to the first grouping (L.75, L.76, L.77 and L.78). All of these, in different tones of shrillness, sought to dilute the obligation to respect universal human rights with reiterations of the importance of culture, religion and national sovereignty.

The answer to this invocation of culture, religion, region and sovereignty has rightly been the Vienna Declaration and Programme of Action wherein the issue of the right balance between cultural and regional sensitivity was resolved in paragraph 5 which bears full citing.

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

Thus, as far as the position of international law is concerned, the balance between respect for national and regional particularities and universal human rights, is resolved in favour of the norm that ‘it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.’

The question to be asked is how do we interpret the effect of the amendments on the resolution as a whole?

What the resolution does is more important than what the resolution says

The most noxious amendments are the ones which invoke the norm of national sovereignty, religious and cultural particularity as competing norms to the norm of universal human rights. If there can be any ambivalence about this resolution at all, it would be with regard to whether these amendments in particular, succeed in altering the very shape of the resolution and whether these amendments become artillery which will in the long-term be used to dismantle the very edifice of international human rights law. In short, do these amendments result in a mutation of the very purpose of the resolution and is the SOGI mandate a pyrrhic victory? Will a SOGI win in the long term, become a loss for human rights?

To answer these questions we will have to go into a deeper analysis of the status of the resolutions of the Human Rights Council. The Human Rights Council was established by GA Resolution 60/251. The instruments invoked by GA 60/251 in setting forth the mandate of the Human Rights Council are worth noting.

Reaffirming also the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action, and recalling the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and other human rights instruments

Specifically GA Resolution 60/251 notes that:

Reaffirming further that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis.

Reaffirming that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms.

In specific terms, the resolutions of the Human Rights Council should be in conformity with what its founding mandate articulates, the Universal Declaration, the Covenant on Civil and Political Rights, Covenant on Social and Economic Right and the Vienna Declaration. Further, the resolutions should also be in conformity with Article 5 of the Vienna Declaration which is expressly cited in preambular paragraph four of GA Res 60/251, and hence a founding mandate of the Human Rights Council.

The intriguing question is what is the status of amendments (L.75, L.76, L.77 and L.78) which expressly seek to dilute the core commitment on which the Human Rights Council was founded?

The fact that the amendments were passed at all indicates a lack of institutional memory and points to a willful forgetting of the founding documents through which the mandate of the Human Rights Council was established. Within a national domestic context with a strong constitutional framework, it would be inevitable that such amendments would be struck down by a Constitutional Court as being ultra vires the Constitution. However, at the international level there is no similar mechanism for analyzing whether the Human Rights Council does indeed work within its established mandate, and there is absolutely no mechanism to ensure that amendments repugnant to the very charter of the institution are struck down.

The lack of precisely such a mechanism raises the question as to the status of the resolutions of the Human Rights Council: Are they legal instruments? Or are they political instruments? Or are they a hybrid entity comprising elements of both?

Bertrand Ramcharan argues that we need to understand the output of the Human Rights Council as playing a role in setting forth a policy agenda, but which works within the framework of relevant international law. The two are distinct but related points.

According to Ramcharan, the fundamental work of the Human Rights Council is not necessarily the making of law but would rather fall within the frame of making international policy.

The Human Rights Council is performing on the basis of general public agreement, a useful international public policy function, drawing attention to problems affecting the enjoyment of human rights being encountered by different groups of people and advancing recommendations for addressing them. [3]

Of course when one says international policy, it is international policy which as per GA Res 60/251 ‘promote(s) universal respect for the protection of all human rights’ and ‘addresses situations of violations of human rights, including gross and systematic violations’

The resolutions in themselves do not necessarily do the work outlined by GA Res 60/251. One of the most effective ways in which the Human Rights Council fulfills its mandate is through the work of the Special Procedures. The Special Procedures take three forms i.e., the Independent Expert, The Special Rapporteur and the Working Group. The former United Nations Secretary-General Kofi Annan, called the Special Procedures the ‘crown jewel’ of the international human rights system in recognition of their enormous contribution to the work of human rights protection.

Some of what the special procedures do include:

  • The development of norms through studies and reports
  • Provide channels for victims of human rights abuses to publicise their plight
  • Containment and mitigation of the problem by transmittal of the complaint to the government
  • Help pioneer new approaches through innovative analysis and framing of human rights issues

The Reports produced by the special procedures mandate holders are really examples of international fact-finding. Fact-finding reports are always powerful documents which can be used in aid of national level struggles for SOGI rights protection. [4] As Ramcharan rightly notes the ‘fact finding work of the special procedures is without doubt among the strongest protection activities of the United Nations’[5]

This emphasis on how the Human Rights Council achieves its mandate, takes us back to another form of analysis of the SOGI resolution. Within this framework of analysis what is important is not to parse the resolution with a fine legal toothcomb but rather to understand what the resolution sets into motion or effectuates.

Simply put, what the resolution does is more important than what the resolution says. To understand what the resolution does we need to go the operative paragraphs and not to the preambular paragraphs. As noted above, all successful amendments were to the preambular paragraphs, and not to the operative paragraphs. Thus the nub or heart of the resolution, which was the establishment of the mandate of the Independent Expert, was entirely preserved.

What the resolution does is to set in place a mechanism of international fact-finding and enable us to take the struggle against violence and discrimination to the next level. The reports of the Independent Expert will hopefully produce new normative understandings and give greater depth to the notion that violence and discrimination on grounds of sexual orientation and gender identity are a core violation of the human rights framework. These reports could also be key documents in different struggles at the national level.

If the work of the Human Rights Council is analysed from the point of view of its contribution to the core mandate of ‘protection’ of human rights, clearly the resolution is successful as it sets in place a mechanism that will work towards fulfilling the mandate of protection. Within this framework of analysis,the language of the amendments is largely redundant, as it has no influence on way the mandate will be fulfilled.

The question of whether this victory for the mandate, is a loss for the larger human rights agenda, is to be answered in the negative, as these preambular paragraphs do not enjoy the status of law. They are at best indications of state practise which come in conflict with the legal framework of the Vienna Convention, GA Resolution 60/251 and arguably the ICCPR and ESCR, as well. This is not a loss for the larger human rights framework as these preambular paragraphs are not law but merely indications of policy.

However, this is not to say that the extensive legal analysis carried out above is of no value but rather to contextualize the analysis. The analysis will serve the purpose of understanding the scope and ambit of resolutions and the need for even political organs of the United Nations to conform to relevant international legal standards and instruments. Thus the political organs of the UN cannot work outside a legal frame, and it’s shameful when amendments such as the ones discussed are moved and even passed. The education effort at the Human Rights Council must continue and we must continue to press states to hew closely to the original mandate and operate within the framework of the international treaties that they have ratified as well as customary international law.

Thus even while we understand the Human Rights Council as a body which is advancing a form of international policy, there is always an expectation of conformity to international law. As Ramcharan puts it:

It is legitimate to expect that governments will comply with their legal obligation under the UN Charter and under international human rights law while participating in UN organs, even political ones and that they will carry out their obligations in good faith under human rights treaties.[6]

To convert this expectation into reality is a continuing struggle.

 

Read more:

I Introduction

II The process leading up to the SOGI Resolution 2016 

The logic underlying a resolution on sexual orientation and gender identity

The draft resolution

Informals on the draft resolution

Civil Society Advocacy Efforts

Joint statements by civil society

Making the case for an Independent Expert at the Human Rights Council

III Understanding the SOGI Resolution 2016

The voting results 

An analysis of the hostile amendments 

What the resolution does is more important than what the resolution says

IV Understanding the Political: Why did states vote the way they did? 

Understanding the ‘yes’ vote

The leadership of the LAC 7

The Asian yes vote

The failed rhetoric of developed versus developing countries

The passion underlying the yes vote

 Understanding the abstentions

South Africa: Abstention as regression

Ghana, Botswana and Namibia: Abstention as progress

India’s abstention: Remaining in the same place?

The Philippines abstention: A step backwards.

 Understanding the ‘no’ vote

The leadership of the OIC

The African Group

The support of Russia and China

Wider opposition to the framework of universal human rights

The threat to the functioning of the Council

V The interconnections to other resolutions at the 32ndSession of the Council

Annex I Brief Summary of other references to SOGI in the 32nd Session of the HRC

GENERAL DEBATE ON HUMAN RIGHTS SITUATIONS THAT REQUIRE THE COUNCIL’S ATTENTION

GENERAL DEBATE ON THE IMPLEMENTATION OF THE VIENNA DECLARATION AND PROGRAMME OF ACTION

GENERAL DEBATE ON THE PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS

GENERAL DEBATE ON THE REPORT OF THE HIGH COMMISSIONER OF HUMAN RIGHTS

INTERACTIVE DIALOGUE ON EXTREME POVERTY

INTERACTIVE DIALOGUE ON FREEDOM OF PEACEFUL ASSEMBLY AND OF ASSOCIATION

INTERATIVE DIAGLOGUE ON THE RIGHT TO HEALTH

PANEL DISCUSSIONS

UN COMMISSION OF INQUIRY ON SYRIA: ISIS IS COMMITTING GENOCIDE AGAINST YAZIDIS

UNIVERSAL PERIODIC REVIEW

Annex II Description of the vote on the SOGI Resolution

Action on Draft Amendments L.71 to L.81

Action on Draft Resolution L.2/Rev.1

Action on Non-Action Motion

Action on Operative Paragraph 2

Action on the Title of Draft Resolution L.2/Rev.1

Introduction of the Resolution

Separate Action on Operative Paragraphs 3 To 7

Annex III Description of the vote on the Family Resolution

Action on the Amendments L.82, L.83, L.84 L.89

Action on Draft Resolution L.35

Annex IV Description of the vote on the Civil Society Resolution

Action on Amendments L.52, L.53, L.54, L.55, L.56, L.59, L.60, L.61, L.62, L.63, L.64, L.65

Action on the Resolution on Civil Society Space

Download full Report in PDF.

 

[1] For a copy of the resolution as tabled See http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/L.2/Rev.1

[2] A copy of the resolution as passed is available at http://www.ohchr.org/Documents/HRBodies/SP/CallApplications/HRC33/A.HRC.RES.32.2_AEV.docx

[3] Bertrand Ramcharan, The law, policy and politics of the UN Human Rights Council, Brill, 2015. p.64.

[4] To give one example, the first report produced by the High Commissioner for Human Rights was cited before the Indian Supreme Court as the most recent most authoritative finding on the status of sexual orientation and gender identity from a global perspective.

[5] Bertrand Ramcharan, The law, policy and politics of the UN Human Rights Council, Brill, 2015. p.228.

[6] Ibid. p. 125.