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. [1]

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. [2] As Ramcharan rightly notes the ‘fact finding work of the special procedures is without doubt among the strongest protection activities of the United Nations’[3]

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.[4]

To convert this expectation into reality is a continuing struggle.

 

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

[2] 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.

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

[4] Ibid. p. 125.