The Amendment Strategy

The appointment of the first Independent Expert on Sexual Orientation and Gender Identity in the 32nd session of the Human Rights Council marked an important milestone in the LGBTI struggle. However, the distance yet to be travelled was brought home in a stark fashion in the 36th session of the Human Rights Council in the debate around the death penalty.

Introduction

Understanding Resolution 36/17 of 2017 on ‘The question of the death penalty’

The Amendment Strategy

Resolution 36/17, triggered strong opposition especially among those countries which still had the death penalty on their statute books. The strategy of those opposing Resolution 36/17 unfolded through proposing eight hostile amendments.[12] All proposed amendments sought either to dilute the language of the resolution, divert the focus of the resolution, or render the resolution meaningless. Some of the more egregious of the proposed amendments sought to render the development of international law and policy to restrict the use of the death penalty nugatory. While Russia withdrew the first amendment, the rest of the amendments were voted on and defeated. Some of the key amendments proposed, which would have altered the resolution substantially included:

Egypt [13] along with other co-sponsoring states [14] proposed that

Before paragraph 1, insert a new paragraph reading

1. Recognizes that the application of a moratorium on the death penalty, abolishing the death penalty or retaining it should be a decision based on domestic debates at the national level;[15]

Saudi Arabia along with other co-sponsoring states [16] proposed that

After paragraph 1, insert a new paragraph reading:

 1 bis. Reaffirms the sovereign right of all States to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations;

Egypt along with other co-sponsoring states [17] proposed that after paragraph 7, insert a new paragraph reading:

7 bis. Urges States that have abolished the death penalty or have subjected it to a moratorium to study the impact of the discontinuation of the application of the sentence on the rights of the victims and the effective accomplishment of redress, including its elements of satisfaction and guarantees of non-recurrence, and encourages the States to share and exchange information concerning the impact of the abolition or retention of the death penalty on the rates of prevalence of serious crimes; [18]

The most egregious of the amendments were the ones focused on national sovereignty with the implication being that the decision on whether to give content to the legally binding commitment to restrict the use of the death penalty was something to be determined within the national context. The reference to sovereignty is in effect an attempt to minimize the role of international law both as a tool of persuasion and as a tool which can continue to develop the normative framework around the abolition of the death penalty.

Some of the amendments were only narrowly defeated. For example, the amendment stressing that the moratorium or abolition of the death penalty’ should be a decision based on domestic debates at the national level’ was defeated by a narrow margin of 18 for, 19 against, 9 abstentions and one Did Not Vote.  It’s also interesting to note that some countries like South Africa though they voted for the resolution abstained on all amendments including the amendments noted above, indicating that South Africa was not opposed to the resolution being diluted through the amendment process.

An analysis of the voting on the amendments, highlights the serious reservations expressed by a number of states on any attempt based upon international law to even minimize the range of offences for which the death penalty can be imposed. However, the fact that the language which allowed national sovereignty to trump international law and policy was defeated, indicates that at present a majority of the Human Rights Council, is committed to minimizing the use of the death penalty.

Analysing the vote on Resolution 36/17

Understanding the ‘Yes vote’

Understanding the ‘No vote’

The USA’s Vote

Japan’s vote  

India’s vote  

Conclusion: Towards an intersectional approach?  

Download full report here.

[12] All proposed amendments along with the details of the vote are available at http://ilga.org/un-resolution-death-penalty-same-sex-relations/
[13] The states which sponsor a resolution do not have to be members of the Human Rights Council. Thus, Egypt even while it sponsored Resolution 36/17 was not a member of the Human Rights Council.
[14]  Bangladesh, China, Nigeria, Saudi Arabia and the United Arab Emirates.
[15] https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/36thSession/Resolutions/Forms/ResolutionDS/docsethomepage.aspx?ID=148&FolderCTID=0x0120D520005A4381ABFFD48642897E02288D058A2200F5BF1C967A4FD040BB4E3F1D6EF4BA3C&List=ed7d2c05-a988-4fd8-b955-6723de83ebf2&RootFolder=%2Fsites%2Fhrc%2FHRCSessions%2FRegularSessions%2F36thSession%2FResolutions%2FA%5FHRC%5F36%5FL%2E41
[16] Azerbaijan, Bahrain, Bangladesh, Brunei Darussalam, China, Egypt, Iran, Kuwait, Malaysia, Maldives, Morocco, Nigeria, Oman, Pakistan, Saudi Arabia, Singapore, United Arab Emirates
[17] Saudi Arabia, United Arab Emirates and China
[18] https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/36thSession/Resolutions/Forms/ResolutionDS/docsethomepage.aspx?ID=150&FolderCTID=0x0120D520005A4381ABFFD48642897E02288D058A2200F5BF1C967A4FD040BB4E3F1D6EF4BA3C&List=ed7d2c05-a988-4fd8-b955-6723de83ebf2&RootFolder=%2Fsites%2Fhrc%2FHRCSessions%2FRegularSessions%2F36thSession%2FResolutions%2FA%5FHRC%5F36%5FL%2E42