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
‘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’
‘Protection against violence and discrimination based on sexual orientation and gender identity’
‘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’
Recalling further Human Rights Council resolutions 17/19 of 17th June 2011 and 27/32 of 26th September 2014’
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.
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.
Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights issues.
Underlining the fundamental importance of respecting relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities.
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.
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.
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.
‘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’
‘Strongly deplores acts of violence and discrimination in all regions of the world, committed against individuals because of their sexual orientation or gender identity’.
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?