State Responses to the Report in the 38th Session of the Human Rights Council

By Arvind Narrain and Kim Vance

Introduction

‘Negation and acknowledgment’ as a frame of the Report

Using ‘Negation and acknowledgment’ to analyze Communications issued by the mandate

State Responses to the Report in the 38th Session of the Human Rights Council

Coming to the response to the report when presented to the UN Human Rights Council on June 18, 2018, one must note that it was overwhelmingly positive. Argentina took the floor to indicate that it was honoured to be the first country to welcome the mandate holder and is working to implement some of the recommendations to them. Both Canada and the Netherlands referenced the Yogyakarta Principles+10 allowing an opportunity for the mandate holder to respond during his remarks and highlight his involvement in the drafting process and his belief that the YP+10 represent an accurate portrayal of the current state of international law with respect to SOGIESC.

The mandate holder also indicated that there are limits to the dialogue, for instance, the discussion of whether SOGI has a place in international human rights law is inappropriate. This is particularly strong and clear language and a good indication of what we can expect from this mandate holder. It could also, however, contribute to deepening geopolitical divides in the Human Rights Council and attempts need to be made to bridge those. In that light it might also not be surprising that the mandate holder noted that there were no substantive replies from countries in which communications were sent from his office. All stakeholders need to work to support engagement from countries that remain silent in their dealings with this mandate.

During the interactive dialogue in the Council, there was notable silence from most African countries, with the exception of South Africa, which welcomed the report and spoke out against violence and discrimination on the basis of SOGI. The OIC also remained mostly silent, with the exception of Albania, which affirmed the mandate and indicated its willingness to work with the Independent Expert. This silence is in stark contrast to the visible efforts to oppose the mandate creation in the Human Rights Council in 2016 and attempts to roll back that decision in the General Assembly the same year. The Independent Expert did note that he has an upcoming country visit to Mozambique this year, and at one point, Mozambique was on the speaker’s list for the interactive dialogue around the report, but then withdrew.

There was also considerable silence from the Asian region. Thailand did take the floor and thank the Independent Expert for his report and affirmed their willingness to work with the mandate, and interestingly China took the floor to welcome the report indicating that it opposes all forms of discrimination, including on the basis of SOGI. It did however, add conditionality to its statement adding that “we must pay respect to cultural values.”

In his other remarks to the Council during the interactive dialogue, the Independent Expert indicated that he intends to continue with the thematic underpinnings put forward by the previous Independent Expert, Vitit Muntarbhorn. He also noted that there is a lot to be learned with regards to data collection and he will organise an expert meeting on safe data collection. He thanked for the set of states and civil society who fought deeply for the mandate indicating it has a ‘global heritage’.

Conclusion