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

The Resolution on sexual orientation and gender identity passed with 23 for, 18 against and 6 abstentions. How do we understand the nature of the vote in both its separate as well as collective character? To do so, we will examine some of the key issues underpinning the yes vote, the abstentions and the no vote.

Understanding the Yes vote

The Yes vote will have to be analysed and understood within the larger trajectory of the treatment of the SOGI issue within the Human Rights Council.  There seems to be a certain fluctuation when it comes to support for SOGI issues within the Human Rights Council. In 2011, when the first SOGI resolution was passed there were 23 in favour, 19 against and three abstentions. In 2014, the second SOGI resolution was co-sponsored by 50states. It was passed with a vote of 25 in favour, 14 against, and 7 abstentions. In 2016, the third SOGI resolution was co-sponsored by 49 states. The resolution was passed by a vote of 23 in favour, 18 against and 6 abstentions.

What one can note is that from 2011 to 2014 there has been a steady increase in support. However, 2016 seems to imply a certain backsliding as the votes seem closer to the 2011 margin than the 2014 margin.

How do we explain this apparent backsliding? One way of doing so is by reference to the fact that the votes always depend upon which countries were members of the Human Rights Council. Arguably, the most favourable membership was in 2014 accounting for the larger majority. Fortuitously in 2014 the composition was such that Asia was represented by four countries from East and South East Asia (South Korea, Japan, Philippines and Vietnam) all of whom all whom voted for the resolution. In 2016, by contrast was a more difficult year for SOGI issues as some key supporters (Japan)and some of those who abstained (Sierra Leone, Kazakhstan) were no more on the Council.

Arguably what the resolution sought to do in 2016 was also way more ambitious than in 2014. The fact that the resolution sought to establish an Independent Expert, possibly got some states to turn from abstention to no (China and Congo) and from yes to abstention (Philippines and South Africa).

Finally, one should not discount the important role played by the more organized opposition lead by the OIC with strong support from Russia. The 2014 resolution was a wake up call for the OIC which went on to note that the resolution was against Islam and vowed to overturn it. The 2016 vote bears some imprints of the OIC determination to fight against SOGI issues at the UN.

The leadership of the LAC 7

What cannot be underestimated is the leadership role of the LAC 7, not only in the LAC region, but across the world. The LAC 7 were instrumental in ensuring that their region was completely behind the vote. The significance of this consensual presentation of the position of the region as whole, apart from ensuring that the bloc of votes was in support, was to demonstrate that the issue of discrimination and violence on grounds of SOGI was not a western issue but rather an issue of grave concern to global south countries.

The leadership was also evident in the degree of care with which the lobbying for the resolution was approached. There was open and close consultation with civil society and a willingness to take suggestions on board as well as an effort to get on board the maximum number of states. It is entirely possible that the Asian and African countries which either voted for or abstained on the resolution, did so because the leadership on the SOGI resolution 2016 came from the global south.

The Asian yes vote

A key part of the success of the yes vote was underpinned by the fact that three Asian countries voted for the resolution. Of the three only Vietnam, in an explanation before the vote, addressed the Council. Vietnam said:

Mr. President, Vietnam welcomes the initiative and efforts of members of international community to prevent and combat violence and discrimination based on sexual orientation and gender identity. We are going to vote in favor of draft L.2/Rev.1 as amended. Vietnam would like to stress that the mandate holder of the new Special Procedures endorsed in this draft will discharge her/his duty strictly in conformity with codes of conduct enshrined in HRC resolution 5/2 – contributing to the efforts of addressing violence and discrimination in this regard.

It is imperative that this Special Procedure when established in the future will have fostering genuine dialogue among all relevant stakeholders with a view to bringing about positive impact people around the world. In this process, differences among diversified society must be respected and taken into account instead of being negatively amplified.

The reason for Vietnam’s yes vote lay in changes both in domestic as well as international policy with respect to LGBT rights. A letter by a number of civil society organisations in Vietnam noted as below:

In recent years, as a member of the UN Human Rights Council, Vietnam has shown openness and support for the equality of LGBT people within the UN as well as on the domestic front. In 2014, Vietnam voted in favour of the UN HRC resolution on Sexual Orientation and Gender Identity. During the country’s 2nd cycle of the Universal Periodic Review, Vietnam accepted a recommendation to enact a law to fight discrimination that guarantees equality for all citizens regardless of their sexual orientation and gender identity. We note that the government has taken positive steps to realize its international commitments such as by amending the 2005 Civil Code thereby allowing transgender persons to undergo sex transition and subsequently change their gender markers in legal documents.[1]

Vietnam’s yes vote, was the result of a strong movement which has brought about dramatic changes at the national level. As Tran Tung the Director of the ICS Center observed:

When we started our movement in Vietnam in 2008, we always put community empowerment and social change at the heart of our campaign. Gradually, we gained the support of the media, and then the general public. The SOGIE issues are no longer sensitive in Vietnam. People understand that we exist, we are part of life and our rights should be protected. The social change and wider support that we enjoy in society plays a key role. On one hand, it gives us a leverage to negotiate with the government. And on the other hand, it makes it easier for people to publicly say that they are supporters/allies. As a result the government of Vietnam has started taking measures to protect rights of LGBTIQ, including revision of laws on marriage and family (to remove the prohibition on same-sex marriage) and civil codes (to allow gender transition in the country). During the process, we built good partnerships with Ministry of Justice, Ministry of Health, Ministry of Foreign Affairs, who are consulted about what to vote. All these factors played a key role in influencing the government’s position on SOGIE issues.[2]

While Mongolia did not speak in this session, a clue as to why they voted yes is offered in the statement of Undeg Purevsuren, Minister for Foreign Affairs of Mongolia, at the 31st Session of the Human Rights Council. Mr. Purevsuren stated that his country had made an enduring commitment to human rights when it embarked on the path of democracy 25 years ago, and when in 1992 it had adopted its first democratic constitution. Mongolia had abolished the death penalty in law with the adoption of the revised Criminal Code. The revised Criminal Code’s definition of torture was brought into conformity with Article 1 of the Convention against Torture. Furthermore, the revised Criminal Code criminalized domestic violence, discrimination against lesbian, gay, bisexual, transgender and intersex persons, forced child labour and corporal punishment of children.

The Mongolian yes vote can also be seen as an outcome of very advocacy for LGBT equality both at nationally as well as international levels. As Anaraa Nyamdorj, Executive Director of the LGBT Centre notes:

The Government of Mongolia received a huge wake-up call during its first UPR Review in November 2010 where issues of SOGIE-related human rights situation in Mongolia was highlighted by 9 countries of which 8 made a recommendation to start implementing concerted efforts to end discrimination against LGBT people. This review was followed a few days later by the UN Committee against Torture review of Mongolia, to which the Centre has also submitted a shadow report highlighting various issues, especially hate crimes, against LGBT people in Mongolia. Four months following that, the UN Human Rights Committee (CCPR) has also made two recommendations on the situation of LGBT people in Mongolia. These back-to-back international advocacy efforts and the response provided by the international instruments appears to have been a great reminder of the fact that there is a specific segment of the population that still is not protected equally despite the fact that both the Constitution and international law mandate equality. On top of these recommendations, the LGBT Centre continued its international advocacy at the UN level, obtaining 17 more recommendations in 2015 UPR Review of Mongolia around LGBTI and non-discrimination, CESCR recommendations in 2015, and CEDAW recommendations in 2016.

At the domestic level, the Centre continued to engage various ministries and agencies constructively through individual meetings, meetings with the government and civil society, especially through the Human Rights NGO’s Forum that has been appointed as an unofficial focal point for civil society engagement for UPR implementation by the Government. There was also continued visibility and humanising of the LGBTI rights movement throughout and visible LGBTI activists of the LGBT Centre and its public events such as Equality and Pride Days all of which played an enormous role. The continued engagement of the Government led to the inclusion of hate crimes/hate speech in a very broad conceptualisation in the present Criminal Code passed in December 2015, which now criminalises broad concept of any discrimination, with protected grounds expressly including SOGIE.

When the Centre was informed of the upcoming vote, we engaged the Government. We called the Ministry of Foreign Affairs to inform them of the impending vote and organized within the civil society to add their signatures to the international petition to civil society to establish the mandate, as well as organized with the Human Rights NGOs’ Forum to send a joint letter reminding the Mongolian government of their intentional obligation and urging them to well as urging them to maintain their leadership in the region on equality and non-discrimination, which they had assured via the new Criminal Code.[3]

South Korea did not speak during the proceedings, but South Korea also voted yes for the 2014 resolution, so there is a consistent track record of support. The consistent Korean support for LGBT rights can be attributed to a mixture of factors including domestic level activism, the aspiration of the Korean state to be seen as a ‘first world country’, the fact that Ban Ki Moon who is South Korean has been a vocal supporter of LGBT rights as well as a desire not to be seen as less progressive than Japan. [4]

The one conclusion one can make about the Asian yes vote is that the strength of domestic level activism plays a strong role in influencing the country’s foreign policy priorities. If South Korea, Vietnam and Mongolia voted yes, the vote is the result of strong domestic level campaigning on LGBT rights.

The failed rhetoric of developed versus developing countries

Part of the rhetoric of those that opposed the resolution was that it was largely an issue which concerned the developed world. On this point it would be useful to analyse the voting record.

It is worthwhile noting that the strongest support for the resolution was from the Latin American region, with all eight countries voting for the resolution. There was also complete support from Western Europe with all seven voting for the resolution. In Eastern Europe as well, apart from Russia, all five other members voted for the resolution. When it came to Asia-Pacific, while eight countries voted against the resolution, Mongolia, South Korea and Vietnam voted for the resolution. Significantly, Philippines and India abstained. When it came to Africa, 9 members voted against the resolution, while Botswana, Ghana, Namibia and South Africa choose to abstain. The key region in the global south, Latin America is almost uniformly supportive, while in Asia there is an emerging base of strong support led by East and South East Asia. Even within Africa, there was no bloc voting with four key abstentions on the resolution. It is also worth noting that the key bloc, the Organisation of Islamic Conference (OIC) was also not fully unified on opposing the resolution. Albania broke with the OIC consensus and voted in favour of the resolution. The success of the vote indicates that the myth of the global south opposition to issues of sexual orientation and gender identity needs to be laid to rest.

The passion underlying the yes vote

One of the important ways of understanding global politics is in terms of interest of national states and how issues can be instrumentalised by states to serve their own agendas of power. While one will have to apply this framework to understand the yes vote, it is also important to understand the emotion or passion, which underlay the yes vote.

Significantly, when the votes were tallied on screen and it was clear that the resolution was through, there was an eruption of emotion across the room as delegates and observers cheered and then hugged each other, exchanging congratulations. Where did this deep emotion come from?

Two specific instances during the debate captured some part of the story of where the passion underlying the yes vote came from. The speech of the Ambassador of the United Kingdom, Julian Braithwaite did something unprecedented by reminding delegates that this was not an abstract disembodied issue but rather a deeply personal one affecting people in room XX of the Palais Des Nations.

By voting against this resolution you are voting to block the UN from trying to stop violence and discrimination. How is that acceptable? This affects people in this room, and people in my team who are LGBT. Are you saying it is OK to discriminate against them based on their sexual orientation and gender identity? To hit, torture, or possibly kill them? Because that is what you are supporting, if you vote against this resolution.

Violence and discrimination has to stop. And the UN should be allowed to play its part in preventing violence and discrimination. For all these reasons, the UK strongly urges all other states to support this resolution. I urge you to remember the persons who depend on this resolution – brothers, sisters, sons, daughters, mothers and fathers.

The emotion, which was articulated by Ambassador Julian Braithwaite, found a larger political resonance in the invocations of the shooting at the gay night club in Orlando by Mexico, the United Kingdom and Ghana.

As Mexico observed:

Mr. President, at the opening of this Council session, delegations from all regions strongly condemned the recent killings in Orlando. Those dreadful attacks targeted people because of their sexual orientation and gender identity. The proposed amendment is contrary to the common condemnation, pretending the human rights of such individuals are no longer concerned for this Council.

The United Kingdom observed:

This Council opens in the shadow of the Orlando killing where individuals were targeted because of their sexual orientation and gender identity leaving 49 dead and 53 wounded. States from different regions join together to condemn the killings. It would send a tragic message about the Council’s willingness to sincerely address such acts of violence if this amendment is adopted eliminating ‘sexual orientation’ and ‘gender identity’ from the list of grounds based on which violence is deplored.

Ghana observed:

But there has been evolution in thinking – partly because of the Orlando situation and also because of the resolution of the African Commission on Human and Peoples’ Rights, which I have just cited.

The commitment of the yes vote was fuelled and fed by the experiences of discrimination and violence by LGBT people, which Orlando signified. Orlando symbolized a wider, longer and deeper history of systematic violence experienced by LGBT people across the globe. In short, it was this passion, which emerged from the LGBT grassroots which found expression through the yes vote to which the speeches of all the supporting countries including Netherlands, Uruguay, Brazil, Uruguay, Slovenia, Vietnam, Mexico and the UK were testament to.

Understanding the abstentions

The six abstentions were by South Africa, India, Philippines, Botswana, Ghana and Namibia. South Africa and Philippines shifted from a yes in 2014 to an abstention in 2016. Namibia and India abstained in both 2014 and 2016 and Botswana shifted from a no in 2014 to an abstention in 2016. Ghana voted no in 2011 and in 2016 chose to abstain. Each of these abstentions will be analysed in greater detail.

South Africa: Abstention as regression

One of the key votes, which merit further analysis, was the vote by South Africa. South Africa, it bears recalling, was the country which sponsored the first resolution on sexual orientation and gender identity at the Human Rights Council in 2011. From sponsoring the SOGI resolution in 2011, to voting in favour of the next resolution in 2014, South Africa moved to an abstention in 2016. What accounted for this fairly dramatic shift?

The vote by South Africa can perhaps be best understood through an analysis of the statement by the South African Ambassador Ms. Nozipho Mxakato-Diseko, which bears full citation:

For South Africa, respect for the promotion, protection and fulfillment of human rights and fundamental freedoms as enshrined in our Constitution constitutes the critical pillar of our foreign policy. We believe that no person should be subjected to discrimination and violence on any ground including on the basis of sexual orientation.

Guided by this conviction, South Africa tabled the original resolution on the SOGI and the LGBTI issue in 2011. Our approach on the issue of protection against violence and discrimination of LGBTI persons was and remains to focus on issues that will draw maximum unity in this Council and carry even countries that have some challenges with this issue. How the current sponsors have sought to build on South Africa’s initiative on 2011, has added divisiveness and created unnecessary acrimony in this Council. We learnt from our struggle against apartheid that if we are clear about the end goal which for us is to end the violence and the discrimination against LGBTI persons a better approach is built in maximum consensus. This could have been achieved had it not been for the arrogant and confrontational approach which adopted.

Mr. President, there is an African proverb that says, “If you want to walk fast, then walk alone. If you want to walk far, walk together with others”.

South Africa remains firmly committed to invest all its resources to ensure the violence and discrimination against LGBTI persons is eradicated, leaving no one behind. Recklessness, pointing fingers to others and brinkmanship will not take us anywhere. Lives are at stake.

It is for these reasons that while we have supported those parts of this resolution which focus primarily on ending violence and discrimination against LGBTI persons, South Africa cannot support this resolution as it stands and will therefore abstain. I thank you. (Emphasis added)

The themes Ms. Nozipho Mxakato-Diseko’s addresses were important ones. As highlighted above she emphasised the importance of the South African Constitution, the anti apartheid struggle as well as the need for dialogue as justifications of the South African vote. Interestingly these themes were also the subject of the address by Ambassador JM Matija who introduced the first resolution sponsored by South Africa on sexual orientation and gender identity in 2011. Like Ms.Nozipho Mxakato-Diseko, Ambassador Matija also invoked the anti apartheid struggle and the South African Constitution to make the case for why South Africa was sponsoring the SOGI resolution.

South Africa believes that no-one should be subjected to discrimination or violence based on their sexual orientation or gender identity. No-one should have to fear for their lives because of their sexual orientation or gender identity. No–one should be denied services because of sexual orientation and gender identity. The resolution before us today does not seek to impose values on Member States but it seeks to initiate a dialogue which will contribute towards ending discrimination and violence based on sexual orientation or gender identity. In South Africa non-discrimination on the basis of sexual orientation is constitutionally guaranteed, yet we still have challenges related to violent acts against individuals because of their sexual orientation and gender identity.

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. It says and I quote “All human beings are born free and equal in dignity and right and that everyone is entitled to all rights and freedoms set forth in that Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status”.

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. (Emphasis added)

While the anti-apartheid struggle is invoked by both speakers, they do so to make very different points. For Ms. Nozipho Mxakato-Diseko, the lesson drawn from the anti apartheid struggle is that to ‘end the violence and the discrimination against LGBTI persons a better approach is built in maximum consensus’, without being ‘arrogant and confrontational’. For JM Matija, the anti-apartheid struggle was one which broadened human rights thinking and taught one that discriminating against anyone on any ground including SOGI is unacceptable.

Perhaps one needs to go back to South African history to ponder as to whether both interpretations are equally valid. 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. Seen from this perspective, JM Matija’s statement is true to the history of the South African liberation movement and implicitly acknowledges and builds on the historic contribution of people like Simon Nkoli who played a key role in both the anti apartheid movement as well as the gay movement. As Simon Nkoli put it, “I am black and I am gay. I cannot separate the two into secondary or primary struggles.”[5] Within 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. It is precisely this unwavering commitment to liberation to which Ms. Nozipho Mxakato-Diseko does great disservice, by implying that when it comes to the core agenda of ensuring a life free of violence and discrimination for LGBT people, it’s okay for notions of consensus to take precedence over the need to combat violence and discrimination. By invoking the anti apartheid struggle in service of a vote which does grave injustice to the ideals of the struggle, Ms. Nozipho Mxakato-Diseko’s violently distorts the very meaning of the liberation struggle.

Ms. Nozipho Mxakato-Diseko’s statement should be analysed within the framework outlined by Orwell in his classic work 1984, where he describes the creation of a new language for a totalitarian state. In Orwell’s totalitarian state, Newspeak replaces English which is then called Oldspeak. The predominant characteristic of Newspeak is that words begin to lose the specificity of what they signified and begin to have the opposite meaning. The example Orwell gives is of the Declaration of Independence which begins with ‘We declare these truths to be self evident, that all men are created equal and that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness…’ In Newspeak the only word which can capture this sentiment is crimethink [6].

Ms. Nozipho Mxakato-Diseko’s ill-thought invocation of the anti-apartheid struggle seeks to empty the liberation struggle of its subversive content and replace it with the bland notion of consensus. Today the anti-apartheid struggle is used to justify not acting to rectify violence and discrimination and tomorrow, in the final Orwellian nightmare, it will be used to justify violence and discrimination.

Further, the invocation of the South African Constitutional commitment to non-discrimination on grounds of sexual orientation to abstain on a vote on violence and discrimination on grounds of SOGI has similar problems. The 2011 statement by Ambassador Matija specifically drew attention to the fact that ‘non-discrimination on the basis of sexual orientation is constitutionally guaranteed’

In 2014, in an explanation after the vote South Africa again drew support for its vote from the Constitution

No person should fear for their safety or be deprived of their dignity because of their sexual orientation or gender identity. South Africa had lent its support for similar resolutions in other multilateral fora. Guided by the principle of supremacy of its Constitution and the rule of law, the Government was enjoined to promote and respect the rights of all persons without discrimination.

In 2016, the same constitution was invoked to support an abstention. Clearly the Constitution cannot be invoked to both support a SOGI resolution in 2011 and 2014 and to abstain on a SOGI resolution in 2016. If it is so invoked, one of those doing the invoking is doing violence to the plain language of the Constitution which enshrines a fundamental commitment to non discrimination on grounds of sexual orientation.  In fact the 2016 vote abdicated Constitutional responsibility and eschewed fidelity to the Constitution in the name of the Constitution.

As South African academic Melanie Judge aptly put it:

The rights and justice principles in the Constitution mandate the terms for how leaders are to govern, both inside and outside our borders. As a consequence, retrogressive and contradictory stances on sexual orientation and gender identity must be accounted for. Leaders who determine the pace and content of sexual and gender politics in ways that undermine constitutional rights and protections are, in the words of Mxakato-Diseko herself, guilty of arrogance and recklessness.[7]

Ghana, Botswana and Namibia: Abstention as progress

The abstentions by Botswana, Namibia and Ghana can be viewed more positively than South Africa. This is because none of these countries have a domestic constitutional or policy framework that is unequivocally supportive of SOGI issues. It was interesting to note that in spite of not having a specific constitutional provision on sexual orientation or gender identity, all three countries referenced the framework of universal human rights as constitutionally prohibiting discrimination.

Botswana noted:

The Constitution of Botswana doesn’t condone violence against any person, nor does it allow discrimination against any person.

Namibia noted:

The Government of Namibia is opposed to any violence against individuals based on sexual orientation and gender identity. We have repeatedly stated that such acts are prohibited and punishable by our domestic criminal laws and there no single case has reported to the authorities alleging persecution of LGBT people in Namibia.

Article 10 of Namibian Constitution states:

All persons shall be equal before the law and no person may be discriminated against on the grounds of sex, race, color, ethnic origin, religion, creed, socio or economic status.

Ghana noted:

In 2014, the African Commission on Human and Peoples’ Rights, meeting at its 55th Ordinary Session held in Luanda, Angola, adopted a resolution No. 275 entitled, “Resolution on Protection against Violence and Other Human Rights Violations against Persons on the Basis of Their Actual or Imputed Sexual Orientation and Gender Identity”.

This resolution was adopted against the background of what the Commission found to be alarming incidents of acts of violence, discrimination and other human rights violations that continue to be committed against individuals in any part of Africa because of their actual or imputed sexual orientation or gender identity. The resolution also expressed deep concern over failure of law enforcement agencies to diligently investigate and persecute perpetrators of violence and other human rights violations against persons on the basis of their real or imputed sexual orientation and gender identity. It condemned the increasing incidents of violence and other human rights violations including murder, rape, assault and other forms of persecution of persons on the basis of their imputed or real sexual orientation and gender identity.

Mr. President, we are meeting at this time against the backdrop of what happened in Orlando. Ghana’s Constitution prohibits discrimination of all kinds. And therefore, the resolution of the African Commission of Human and Peoples’ Rights is in conformity with our Constitution. The laws of Ghana will not permit any individual to be persecuted or assaulted because of their sexual orientation.

Thus all three countries referenced a national constitutional framework of universal rights. Ghana went one step further and also referenced the Resolution on Sexual Orientation and Gender Identity at the African Commissions on People and Human Rights as well as the mass murder in Orlando.

As Ghana put it:

Mr. President in 2011 Ghana voted against the resolution that has been referred to in the preambular paragraph. But there has been evolution in thinking – partly because of the Orlando situation and also because of the resolution of the African Commission on Human and Peoples’ Rights, which I have just cited.

However, all three countries balanced this framework of universal human rights with the so-called lack of consensus on the notion of sexual orientation and gender identity.

As Botswana put it:

It must be noted, however, that at international level and within international law there is no agreed definition and acceptance on the use of the terminology on sexual orientation and gender identity as discussed under the current resolution. It is in fact a concept that is still developing even at the international level. The reason that we abstain at this stage, takes into consideration the fundamental importance of respecting the relevant domestic debates with matters associated with historical, cultural, social and religious sensitivities.

Namibia observed:

The fact that there is no binding international instrument guiding us in the field of international human rights law which provides us with an agreed definition of sexual orientation and gender identity poses a legal lacuna for us. The same lacuna exists with regards to an instrument that establishes rights based on sexual orientation and gender identity. In the absence of international human rights law that guides our work in the Council, what instrument will guide an Independent Expert while assessing our States. We are concerned that a mandate of an Independent Expert is sought to be established by this resolution as this mandate will be allowed to interfere into sensitive issues at the national level.

Ghana echoed the concerns around cultural sensitivity:

But Mr. President, this is a very sensitive matter culturally in Ghana. Attitudes have been hardened because of the behavior of certain groups within the homosexual community. The case of the Republic of Ghana versus Dr. Sulley Ali-Gabass, who was a medical practitioner in one of our leading hospitals, and ties a young boy of under 16 years old, and forcibly had anal sex with him in a car. The victim, Basheer Mohammed, later contracted HIV. He was induced with gifts such as Samsung Galaxy and cash of 20 cedis, which was less than perhaps a dollar in Ghana, because his poverty was exploited by this man. He denied responsibility, but an investigative journalist who went undercover to interview him got his confession on tape. So he was subsequently arrested and prosecuted and sentenced to several years in prison. This actually hardens attitudes towards issues like same-sex marriage or commercialization of homosexuality.

As all three countries described it, the conflict between these two positions resulted in the abstention. What was remarkable in the statements by all three countries is that while all of them choose to reference the Constitutional framework, neither Ghana, Botswana nor Namibia chose to reference their criminal law under which same-sex sexual acts are illegal in all three countries.[8] This is the correct position as clearly, it should be the Constitution and not the penal statutes that should determine the international policy of the state. Whichever way one looks at it, the vote was a brave one for both staking out their countries positions as being against discrimination and violence on grounds of SOGI and for breaking with the African group position to pioneer a more rights affirming position.

India’s abstention: Remaining in the same place?

India offered no explanation of its vote. To understand India’s abstention one will have to rely on the transcript of the response by Vikas Swarup, the Official Spokesperson of the Ministry of External Affairs to a question on India’s vote:

Question: Why did we abstain at the UN Human Rights Council on the appointment of an independent watchdog for protecting LGBT rights? Does that not reflect poorly on us as a liberal democracy interested in ensuring the human rights of the LGBT community?

Official Spokesperson, Shri Vikas Swarup: As you know, the issue of LGBT rights in India is a matter being considered by the Supreme Court under a batch of curative petitions filed by various institutions and organizations. As you also know, the Supreme Court is yet to pronounce on this issue. As such we had to take this into account in terms of our vote on the third UN resolution to institutionalize the office of an independent expert to prevent discrimination against LGBT persons. [9]

The reasoning given for the abstention, i.e. that the matter is before the Supreme Court, does not seem to be founded on a correct appreciation of the legal position. The Supreme Court in Suresh Kumar Koushal v.Naz Foundation did uphold Section 377 of the Indian Penal Code, but in doing so had clearly stated that:

Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.[10]

In an unprecedented decision the Supreme Court activated a little used self-corrective mechanism known as the curative remedy and ordered that the decision of the Supreme Court in Koushal to be re-heard before a five judge bench.

It should also be noted that the Supreme Court in NALSA v. Union of India, had passed another judgment upholding the rights of the transgender community to equality, dignity and expression. [11]

All these reasons, which indicate that the Court has made progress towards recognizing LGBT citizens as full citizens, should have emboldened the government to act. The parallel to the statements of Ghana, Botswana and Namibia in their abstention on the SOGI resolution, could not be more striking. These three countries invoked their respective Constitutional frameworks to make the case that regardless of their criminal law provision, they did not discriminate on grounds of SOGI. India instead chose to highlight the penal statute Section 377, rather than derive a policy position based on the Constitution.

While India did abstain on the resolution as a whole, it also voted for a number of the hostile amendments. Two key amendments for which India voted affirmatively cast a particularly troubling light on the government’s fidelity to the Constitution.

Amendment L 75 reads: Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights; while amendment

L 76 reads: Underlining that fundamental importance of respecting the relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities.

These amendments seek to undo the international consensus that cultural sensitivity must always yield to the duty of all states to protect universal human rights as embodied in the Vienna Declaration and Programme of Action. This deference to cultural and religious value systems is particularly problematic in the Indian context as it reinforces casteist practices and gender discrimination, not to mention discrimination on grounds of sexual orientation and gender identity. An unqualified deference to cultural and religious value systems is also antithetical to the Indian constitutional framework.

The freedom of religion clause in the constitution (Article 25) is specifically subjected to the limitations imposed by the other fundamental rights. This is because the constitution accommodates the concerns of women members of the Constituent Assembly, such as Hansa Mehta, who talked about how the freedom of religion could well become the tyranny of religion, especially over women.

Similarly the practice of untouchability is at heart a cultural practice undergirded by a religious value system. This practice was declared a constitutional crime under Article 17.[12] What the criminalisation of the practice of untouchability indicates is that the Indian Constitution is no passive supporter of culture and tradition. Rather, the Constitution prohibits cultural practices that violate fundamental rights.

When India voted for these amendments, it shows a profound lack of respect for the Constitution and its values. [13]

The Indian abstention did scant justice to the way the conversation on LGBT rights had evolved domestically. From being a fringe issue, it had become a matter of widespread concern as reflected in social movement positions, media coverage as well as the fact that major political parties were supportive of LGBT rights including the largest opposition party the Congress. This emerging base of solid support however did not embolden the government to play a leadership role and India preferred to be non committal in its vote.

From another perspective, India’s abstention could be seen as at least not as regressive as the previous position. In 2015, India under the current Modi administration, joined Russia, Pakistan, Saudi Arabia, China and Iran to vote against the extension of same-sex partner benefits to employees of the United Nations.  If that vote is taken as the benchmark, India has moved from a ‘no’ to an ‘abstention’.

The fact that India abstained instead of voting no in 2016, can be attributed to the fear of negative media coverage which would tarnish the governments international image. The overall position of the Indian government evolved from a no vote in 2015 to an abstention in 2016 because of the fear of negative publicity of the no vote in 2015 and the desire of the current Indian administration to avoid the same. It is also an indirect tribute to the strength of the national level campaign to decriminalise LGBT lives mounted vigorously by LGBT groups along with media, civil society and academia.

The Philippines abstention: A step backwards

Philippines had voted for the SOGI resolution in 2014, so the abstention in 2016 was a step backwards. The Philippines observed:

Two years ago the Philippines voted to support the resolution on Human Rights, Sexual Orientation and Gender Identity (SOGI). At that time the SOGI resolution’s purpose was to discuss discrimination and violence against individuals based on SOGI… We supported that resolution in the context of Philippines’ strong commitment to the promotion and protection of the human rights of all individuals regardless of race, color, sex, gender, religion or any other status in line with the Universal Declaration of Human Rights and other International and regional human rights agreements to which it is a State party. It is the pursuant of this commitment that the Philippines has stood against discrimination against specific individuals and sectors including discrimination and violence against individuals based on their sexual orientation and gender identity, such as those belonging to LGBT sector.

We also supported the previous resolution with the full understanding that the resolution will neither create nor lead to the creation of new human rights specific to LGBTs and other individuals with specific sexual orientation and gender identity as it will run counter to the universality of human rights. Most important of all, we understood the previous resolution would not impose, not derogate the sovereign rights of States to formulate and define its own laws.

Today we express the same commitment and understanding. However, my delegation was not ready to support the establishment of a mandate holder specially so, when mandate holder to be created by its very nature pursue a set of standards apply to a specific sector when there is no consensus on a set of universally accepted human rights standards. It is for this reason, Mr. President that my delegation voted to support the portion of the resolution that pertained to combatting violence and discrimination against LGBT. We voted against L.75 because it attempts to change the essence and message of Article 1.5 of the Vienna Declaration and Program of Action in the World Conference on Human Rights which reads in parts.

While the significant of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind. It is a duty of States regardless their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms.

Mr. President, we are abstaining on the vote to create a new mandate holder and we will abstain on the resolution as a whole.

The abstention by Philippines generated shock among civil society groups who had advocated for Philippines to follow its previous vote, and vote in favour of the resolution. The vote on the resolution occurred on the same day that the new President, Rodrigo Duterte was inaugurated. However, this was unlikely to have influenced the vote, with the more significant factor being the 2014 White paper issued by the Department of Foreign Affairs.

The white paper argues that ‘the Philippines has always been tolerant and respectful of the LGBT/SOGI community’ with the respect and tolerance being ‘firmly anchored on the equal protection clause of the 1987 Constitution.’ However the white paper notes that ‘currently there are no domestic law that ensures that upholding and respect for their rights. Specifically there is an absence of PH legislation explicitly (i) recognizing and regulating same sex marriage and civil partnerships between persons of the same sex; and (ii) regulating the effects of changes in a person’s legal status which may have been brought about by sex reassignment.’

Combined with this perceived lack of clear guidance or domestic mandate, the white paper also articulated the implications of Philippines taking a more proactive SOGI supportive position internationally.

PH’s consistent pursuit of SOGI in every CSW session without a clear resolution on this issue creates the impression that this forms part of the country’s foreign policy, which impacts on our relations with specific states and regional partners such as the OIC and Holy See.[14]

The white paper also put forth domestic concerns:

It should be noted that the Catholic Church and the Muslim community in the Philippines, which realistically influence the formulation of PH policy, may incite further the controversy that will create a difficult process towards achieving consensus on the issue. [15]

This paper, which was authored after the ‘yes’ vote by the Philippines to the SOGI resolution in 2014, was conspicuous by its silence on its analysis of the 2014 vote. However, reading between the lines, one can infer that there was significant push back both domestically as well as in terms of relations with friendly states which ensured that overt support by the Philippines for SOGI issues globally was not feasible any more.

As the white paper concluded:

It is recommended that PH adopt for now a policy of ‘strategic silence’ until such time that the country passes a law that comprehensively covers LGBT/ SOGI rights which could then serve as a framework for any change in the recommended policy.

We will have to see if the position of ‘strategic silence’ articulated in the white paper changes under the new administration of President Duterte, as Filipino LGBT groups work to ensure that respect for LGBT rights becomes a part of the national and international policy of the Philippines.

Understanding the ‘no’ vote

There were 18 countries that voted against the resolution, with 9 of them coming from Africa, 8 from Asia and one from Eastern Europe. The key points of the opposition unity were really around the African group and the OIC supported by Russia and China.

The leadership of the OIC

There were 18 countries which voted against the resolution with ten of them belonging to the OIC. Apart from Albania the other nine OIC members (Algeria, Morocco, Bangladesh, Indonesia, Maldives, Saudi Arabia, Nigeria, UAE and Qatar) voted against the resolution.

Thus, the key locus of organized opposition was really the OIC. All the OIC countries which spoke highlighted the fact that in their perception, the resolution was opposed to religion, culture, and tradition and was hence an unacceptable imposition of values.

Qatar observed:

That’s why the rights advocated by this draft proposal at the Human Rights Council are, according to us, contrary to the sound human instinct and to all values, cultures and religious beliefs. Such a selective approach is an unprecedented move that would threaten all the efforts of the Human Rights Council. We know that there are some practices that might be accepted by some people in some communities and societies. However, this does not mean at all that such practices can be imposed on other countries. And they shouldn’t be described as being collectively accepted and endorsed. This might open the way to inserting new concepts that are irrelevant to principles of human rights and this is why we need to recognize the specificities of our cultural and religious backgrounds as per the Vienna Action Plan 1993.

UAE observed:

We reject the instrumentalisation of United Nations Human Rights and the use of Human Rights Council for strange and bizarre concepts that run counter to the United Nations resolution that established the Council. I would like clarify that we are a society that rejects violence and discrimination in all forms and manifestations. We don’t want to target any specific social group that is covered in the draft resolution L.2.

On the other hand, we as  people that have nothing to do with the content of the draft resolution express our rejection of any concept that compromises our cultural and religious specificities – even if these concepts are acceptable to others societies. In addition to that, the comparative law literature and sociology literature affirm that what might be good in a specific area will not necessarily give the same outcome in the other society and area.

Saudi Arabia observed:

We would like to say once again that respecting religions and beliefs has been considered in the Universal Declaration of Human Rights. And, the universality of human rights doesn’t mean that we have to impose cultures that are contravening with our Muslim religion.

Indonesia observed:

While recognizing the mandate of the Human Rights Council to promote and protect human rights, we believe that the Council should always take a constructive and cooperative approach in the consideration of issues particularly of those involving different socio-cultural and religious norms and moralities. We believe that the members of the Council should always demonstrate the requisite sensitivity to them and refrain from imposing certain values and norms to others that do not enjoy international consensus.

Morocco observed:

Today we are facing a draft resolution that is against the values and beliefs of at least 1.5 billion that belong to one civilization. So what is the message that we would like to send to this civilization and religious community?

Algeria observed:

Yet we think that it is not useful to impose values which are not agreed upon universally upon others. This is a non-constructive approach and it will lead to divisions within the Council’s cause and we do not want this. The sexual orientation is merely an option or an alternative form of behaviors and we do not want a mandate holder for just such an issue.

The OIC opposition was quite organized and flowed from OIC policy decisions. This was outlined by Pakistan in the speech introducing the amendments.

OIC foreign ministers adopted in Kuwait a resolution at the 42nd session of the council of ministers which while referring to the Human Rights Council resolution on human rights, sexual orientation and gender identity disagreed with the resolution and the concept it espoused.  We have, therefore, informed the core group of the draft resolution that the OIC shall not be able to support this initiative and especially will not be able to support an Independent Expert for a concept that has not yet been adopted by any universal inter governmental negotiated treaty or convention

The Resolution referred to by Pakistan is Resolution no. 4/42c on Social and Family Issues A. Safeguarding the values of the Marriage and Family Institutions:

Having considered the Statement of the Independent Permanent Human Rights

Commission (IPHRC); and the resolution of the Human Rights Council A/HRC/27/L.27/ Rev.1 on “Human rights, sexual orientation and gender identity”;

Commending the decision taken by the Council of the League of Arab States at the ministerial level, which rejects this Resolution;

Lauding the position of the Muslim and non-Muslim States which opposed the Resolution within the Human Rights Council;

Considering that the Resolution includes many issues which cannot be accepted as they are in total contradiction with the teachings and values of Islam and other divine religions and with the human common sense;

Decides to:

  1. Reject the entire content of the HRC Resolution and to endeavor to take a unified Islamic and human position to repeal it.[16]

The policy decision of the OIC was arrived at following the 2014 resolution.  The OIC resolution sees the SOGI question as ‘in total contradiction of the teachings and values of Islam’.  The resolution also affirmed the commitment of the OIC countries to ‘reject’ the 2014 resolution. Thus we must see the OIC vote and the OIC lobbying to prevent countries from voting for the resolution as flowing from the policy articulated in Resolution no. 4/42c on Social and Family Issues at the OIC.

However, in spite of this clear declaration of policy it is important to note that the OIC was not successful in ensuring that all OIC members voted against the resolution. Albania, who has been a member of the OIC since 1992, voted for the resolution. Albania said:

Albania fully supports the draft resolution L.2/Rev.1 that builds upon previous resolutions of 2011 and 2014 years in addressing these discrimination and violence against persons because of their sexual orientation and gender identity. The aim of this draft resolution is to appoint an Independent Expert which will work on the protection against violence and discrimination based on sexual orientation and gender identity and the current state of the resolution doesn’t seek to create a new rights but simply affirms the application of existing human rights standards to those who are discriminated and abused because of who they are.

Albania chose not to address the OIC arguments head on, but rather articulated its position of voting for the SOGI resolution flowing from its support for universal human rights. The Albanian position may not be significant in terms of numbers, but very important in terms of ideas. Albania articulates the fact that opposition to SOGI issues is not a central tenet of Islam, that violence and discrimination on grounds of SOGI should be taken seriously and that all countries should follow the framework of universal human rights.

The African Group

The African group was by contrast more divided with eight countries voting against and four abstaining. In 2016, even without South African leadership there were four abstentions on the resolution from the African region. No African state which was not a member of the OIC choose to explain their no vote. The relative silence of the non OIC African states could possibly indicate a greater space for changes in viewpoint that was not effectively leveraged. The one state which could have effectively leveraged its leadership role to engage other non OIC African states to try and ensure at the least an abstention was South Africa. However, South Africa was obviously not comfortable with the 2016 resolution and did not do anything to ensure the success of the resolution. Thus in 2014 when there was South African leadership, Congo and Sierra Leone abstained. In 2016, even without South African leadership Ghana, Namibia and Botswana abstained. This only alerts us to the possibilities that were not tapped in 2016.

This lack of leadership by South Africa had the unfortunate impact of further amplifying the most homophobic voices on the African continent during the vote. Nigeria played this role to perfection. As Nigeria observed:

Nigeria has legislated against LGBT. Nigeria opposed it in this Council in 2011. Nigeria has no ill-feelings against those States that practice same-sex attitudes and so on. All Nigeria is saying is that its laws don’t accept it, and I think it goes for a number of countries that have made statements in rebuttal of this particular resolution.

The vast majority of nations have not accepted LGBT rights. In a world with population of over 7.4 billion, how can we say that the concept of human rights for LGBT people is right given a small fraction identify themselves as LGBT. My government and other governments seriously object to any attempt to consider LGBT rights as human rights. And we have legislated against LGBT because it offends the culture, religion and natural laws.

We object to this claim that a vote against this resolution is to instigate violence. We say “No no no”. The opposition to this resolution is to ensure the sanctity of other rights, such as rights to religious beliefs, culture and supremacy of natural laws. Certain unnatural behaviors that pose threat to natural laws must be abolished; otherwise the concepts of marriage and family will fall apart.

The support of Russia and China

The core grouping of the OIC and the African Group was further buttressed in its support by Russia and China. Russia said:

Russia believes that sexual orientation is an element of private life of a separately taken individual and one cannot interfere in this. This is a deeply individual choice according to one’s models in particular relationships which does not lead to the need for the creation of any specific conditions for the implementation of such a choice – a particular system of protection for those who take this particular choice. In Russia human rights is extended to all. Women, elderly, people with disabilities, homosexuals, teachers, or astronauts, young people or representatives of national or religious minorities.

And what we see today, is a small group of countries who are suggesting that we set up a separate legal regime for the protection of those who take a choice for a certain model of personal relationships.

We will refrain from any comments with respect to whether this choice is a natural one. We will simply note that many thousands of years of human development were carried out by those who did not have this kind of a choice.

The establishment of an Independent Expert by the Council on issues only with respect to private matters is not something that we can see as anything else other than imposing specific behavioral models and we are against such an approach, which would simply facilitate further politicization…

In conclusion, Sir, bearing in mind the aforementioned, the Russian Federation will vote against the resolution on this post of an Independent Expert on issues of discrimination on the basis of sexual orientation and will not cooperate with it if it is established.

China, speaking in an explanation of the vote after the vote, underlined the importance of respecting the different cultural and judicial systems, and stressed the need to address human rights issues through constructive dialogue, rather than to impose views on others. Further, the Council was facing financial constraints, and therefore China was opposed to the creation of new mandates.

Russian and Chinese opposition to the resolution may not have much to do with the opposition of the OIC countries (i.e. that it is against religion or culture). Rather the opposition should be viewed as a wider opposition to the norm of universal human rights. Both Russia and China are strong proponents of a state-centric vision of international law with little space for the notion of human rights. Thus the opposition to what Russia calls ‘behaviour models’ is in effect an opposition to the idea of individual rights. China in its invocation to respect different cultural and legal systems seeks to place state sovereignty on a higher pedestal than individual human rights.

Wider opposition to the framework of universal human rights

The no vote was underpinned by sustained hostility to the very idea of universal human rights. In fact the theme which underlay many of the hostile amendments was the opposition to the universality of human rights.

As Pakistan put it:

Amendments from L.73 to L.79are inspired by the decisions taken by the OIC as well as the Africa heads of States and the governments in the Kampala summit on the promotion of cooperation, dialogue and respect the diversity in the field of human rights.

The OIC decisions referred to by Pakistan are laid out in Resolution no.1/42-leg on Follow-Up and Coordination of Action in the Field of Human Rights

  1. Affirms that human rights are of a universal character and must be perceived within the framework of a dynamic non-static process for the evolvement of international standards with due consideration to national and regional specificities and to the diverse historic, cultural, and religious backgrounds.
  2. Stresses the need for the international community to tackle the issue of human rights objectively and from the perspective that these rights are indivisible and inclusive of all states on a non-selective and non-discriminatory basis.
  3. Calls for human rights to be perceived in a comprehensive manner and from all their religious, political, social, economic and cultural aspects, within a framework of international cooperation and solidarity.
  4. Reaffirms the right for states to uphold their religious, social and cultural specificities which represent legacies and intellectual underpinnings that in turn contribute to enriching common world concepts of human rights.
  5. Urges all not to use the universality of human rights as a pretext to interfere in the internal affairs of other states and to impinge on their sovereignty.
  6. Recalls the right for states to voice their reservations, when necessary, as to any international covenants, conventions or agreements which they join, inasmuch as such a right forms a sovereignty right.[17]

The points 1 to 6 of the resolution lay out a framework that goes way beyond the SOGI resolution. Clearly the objective of the OIC is to dilute the framework of universal human rights by stressing that rights are to be ‘perceived in a comprehensive manner’, by calling for rights to be understood from ‘their religious, political, social, economic and cultural aspects and by stressing that rights are to be understood within ‘the framework of international  cooperation and solidarity’. The ‘right of states’ to ‘uphold their religious, social and cultural specificities’ is affirmed. States are enjoined to not to use ‘universality of human rights as a pretext to interfere in the internal affairs of other states’.

The prefacing of ‘human rights’ by comprehensive and stressing for the contextualization of rights within religious and cultural frameworks is a clear attempt at diluting the protection of international human rights law. The other manoeuvre in the text is to pivot away from human rights as vesting in person to rights as vesting in states. The rights of states to affirm their religious and cultural specificities is set up as a norm which trumps individual human rights.

The question to be asked is whether what we are seeing is an attempt at supplanting the existing framework of international human rights law. The strategies to do so are varied. One aspect of the strategy is it misquotes, misapply and misinterpret existing human rights law. The hostile amendments are a classic case of misquoting the Vienna Declaration to achieve aims that are quite in conflict with the Vienna Declaration. The second aspect is to refocus the question away from the individual as rights holder to collective entities be it the family, the state or religion. The third aspect is to repeatedly attack the norm of universal human rights from the point of view of culture and religion. The final aspect is to reemphasize the importance of sovereignty and the fact that sovereignty must trump international human rights law.

The threat to the functioning of the Council

The implications of the fact that the resolution was passed was outlined in dark terms most strongly by Morocco:

Mr. President, I am taking the floor in a session which is considered a historical one and I do feel very sad and very bitter. We are celebrating the 10th anniversary for the establishment of the Human Rights Council, and we thought that such an occasion would be one that will allow us to send clear messages to our communities and to this world that is marred by terrorism, extremism and migration of all forms. We do think that this Council is responsible for building major consensus amongst all civilizations so that we develop human rights and defend the noble principles of human rights.

In this session, Mr. President, and while we have looked at the results of the vote, we would like to register today and record that we are facing a very divided Council. So this Council is sending a wrong message which will be distorting and will create an ambiguity for the youth.

So, we are talking about the universality, when the common ground between human civilizations is achieved, whereas today we are facing a draft resolution that is against the values and the beliefs of at least 1.5 billion that belong to one civilization. So what is the message that we would like to send this civilization and religious community?

Mr. President, Islam is against violence. It gives all dignity to human beings and refuses all abuses. And Morocco, as a Muslim State believing in human rights, shared and participated in number of initiatives taken by this Council trying to get the positions closer and to get the human rights to win at the end. But today we are calling upon the members to vote against this draft resolution just to preserve the credibility of the Council.

We are at a very dangerous turning point. This vote and this session will be the beginning of a very dark period in the life of the Council where two-thirds of humanity and humankind will feel that they are outside the Council and that the Council is not taking into account their own convictions and feelings and the values they are condoning.

This is why we vote against the draft resolution as we think this will protect the universality of the principles of human rights. We want to vote like this because we want to preserve the Human Rights Council. If given time, the Council will undoubtedly lead to a consensus I think amongst all members. The world is going through a very serious, acute period and we don’t want the Council to enter into a war between civilizations and religions, as the duty of the Council is to build upon, to draw on values that are common to all civilizations. And at least today, and in light of the outcome of the votes, we have to have this courage to say that this draft resolution will lead us to polarization to the vision and dissension, and this does not serve at all human rights and does not put an end to any injustice. My delegation that is participating with you and with other members on a lot of other initiatives will still vote against this resolution.

In the immediate context of the SOGI resolution it would take the form of non-cooperation with the Mandate Holder once the Mandate holder took office. This was articulated explicitly by Indonesia, Algeria and Russia before the vote and by UAE, Egypt, Qatar and the OIC after the vote.

Indonesia said:

Furthermore, in line with our position, we would like to put that in record that we are not in the position to support, cooperate or engage with the mandate holder created for it. I thank you Mr. President.

Russia said:

The Russian Federation will vote against the resolution on this post of an Independent Expert on issues of discrimination on the basis of sexual orientation and will not cooperate with it is it is established.

Algeria said:

This is why we will vote against this resolution that we consider that it distracts us from the noble principles upon which the Council has been built. And we refuse to deal with any such Independent Expert if such expert is created.

In explanation after the vote the same position was again outlined by a range of states:

United Arab Emirates, speaking in an explanation of the vote after the vote, said that the adoption of the resolution was a dangerous precedent. It would bring the Human Rights Council closer to exploiting human rights for the promotion of secondary rights. Despite the importance of the resolution, it was a provocation for many communities. The group in question did not respect the traditions. Hence, the United Arab Emirates did not accept the mechanism that had been created and did not plan to cooperate with it.

Qatar, speaking in an explanation of the vote after the vote on behalf of the Organization of Islamic Cooperation, except Albania, held that the values of non-violence were important. The Organization of Islamic Cooperation believed that protection against violence should be given to all. At the same time, it stated that the concepts and new language in the draft resolution held no place in the Universal Declaration of Human Rights and other human rights instruments. The adoption of topics not universally agreed upon, that directly impinged on the social culture and the religious sensitivities of Member States of the United Nations, compromised the work of the Human Rights Council.

The Organization of Islamic Cooperation believed that the passage of this draft resolution and the establishment of an Independent Expert on the protection against violence and discrimination based on sexual orientation and gender identity, in an act of cultural superiority, imposed one set of values on the rest of the world. The Organization called for respect of cultural, historic and religious backgrounds and particularities which were clearly set in the two Covenants. The countries of the Organization of Islamic Cooperation, except Albania, would not recognise the mandate created by the resolution, would boycott the Independent Expert, would not be in position to cooperate with that person.

Egypt was alarmed over the adoption of the deeply flawed L.2.Rev.1, which aimed to establish new rights for lesbian, gay, bisexual and transgender persons. The Council did not have the legislative power to create new rights, stressed Egypt. Egypt would not recognize nor would it cooperate with the Independent Expert emanating from L.2.Rev.1.

Iran, speaking on L.2.Rev.1, reiterated its commitment to pursue a variety of approaches to protect human rights against violence and discrimination, but any approach should address basic social or religious norms and values of communities. Iran would not cooperate with the mandate holder which this resolution had brought about.

What is being articulated by the OIC states as well as Russia is that the founding mandate of the Human Rights Council, GA Res 60/251 will no more be the framework within which states will operate.

In operative paragraph 4 of GA Res 60/251 establishing the Council the principles which should guide the work of the Council are elaborated:

Decides further  that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development;

The decision to not cooperate with the mandate holder does grave damage to the founding principle of ‘constructive international dialogue and cooperation’. The further question is, once this attitude of disregarding founding norms takes root, will it institutionalize ways of dealing with conflicting viewpoints in the Council?

These fears seem to be anticipated by the High Commissioner in his address to the 32 Session of the Human Rights Council:

And yet the workable space in which we function as one community – resolving disputes, coming to consensus – is under attack. The common sets of laws, the institutions – and deeper still, the values – which bind us together, are buckling. And suffering most from this onslaught are our fellow human beings – your people – who bear the brunt of the resulting deprivation, misery, injustice, and bloodshed.

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] Letter dated 24.06.16 addressed to His Excellency, Mr Pham Binh Minh, Minister of Foreign Affairs, Vietnam from ICS Center, ISEE, PFLAG Vietnam.

[2]Email communication with Tran Tung, Director of the ICS Center, Vietnam.  

[3] Based on email exchange with Anaraa Nyamdorj, Executive Director of the  LGBT Centre, Mongolia.

[4]Based on an email exchange with Minhee Ryu,Korean Lawyers for Public Interest and Human Rights(KLPH), South Korea

[5]http://lgbthistorymonth.com/simon-nkoli?tab=biography

[6] George Orwell, 1984, Penguin, London, 2000.

[7]http://mg.co.za/article/2016-07-06-00-sa-reckless-on-un-gender-and-sexual-rights-vote/

[8] Aengus Carroll, State Sponsored Homophobia,  ILGA, 2016. p.36

[9]http://www.mea.gov.in/media-briefings.htm?dtl/26979/Transcript_of_Weekly_Media_Briefing_by_Official_Spokesperson_July_01_2016

[10]Suresh Kumar Koushal v. Naz Foundation, (2014) I SCC 1.

[11]https://indiankanoon.org/doc/193543132/

[12] 17. Abolition of Untouchability.—“Untouchability’’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability’’ shall be an offence punishable in accordance with law.

[13]http://thewire.in/48613/diluting-human-rights-principles-indias-vote-on-the-resolution-on-sexual-orientation-and-gender-identity/

[14] This section is based on exchanges with members of the ASEAN SOGI Caucus, Ryan Silverio and Cornelius Darpito who shared relevant material and analysis.

[15] Ibid.

[16]http://www.oic-oci.org/oicv3/page/?p_id=68&p_ref=37&lan=en#normal

[17]http://www.oic-oci.org/oicv3/page/?p_id=68&p_ref=37&lan=en