In June 2016, the United Nations Human Rights Council created an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. It took years of negotiations and tireless work to get this resolution tabled – and the fact that it passed was a major success.
But there was plenty of opposition. More than 70 of the UN’s 193 member states criminalise people who are lesbian, gay, bisexual, or transgender. Many of these states claim that the rights of sexual orientation and gender identity minorities do not form part of international human rights law.
Now these countries have failed to stop the Human Rights Council creating a mandate to protect and promote such individuals, they are trying to use the UN General Assembly to justify their human rights violations. They are proposing that the assembly defer consideration of the mandate, which would sideline it for months or years. If they succeed, they could undermine the credibility and authority of the whole UN human rights system.
The Human Rights Council is the UN’s main human rights body – and one of its key methods for protecting and promoting human rights is to appoint Independent Experts and Special Rapporteurs tasked with looking into specific human rights issues.
These people are part-time, unpaid experts who visit countries to examine human rights issues, consult widely with all sectors of society, and submit reports and recommendations to the UN’s various bodies. They are viewed as the “crown jewels of the UN human rights system” and have played a crucial role in developing international human rights law. Their work has helped to protect some of the most vulnerable people and groups around the world.
Many countries don’t like it when their human rights records come in for this sort of scrutiny. The UK, Canada, Australia and others have resisted recommendations made about their human rights records, as have many other countries the world over. But there is a big difference between not wanting to be criticised and not wanting a mandate to exist in the first place.
The countries that are trying to block the sexual orientation and gender identity mandate aren’t trying to avoid criticism – they want to continue to discriminate against, imprison, torture, or execute sexual orientation and gender identity minorities. A new mechanism to protect these people’s rights is not in their interest, so they’re trying to stop it in its tracks.
Most of the 70-plus countries that criminalise sexual orientation and gender identity minorities belong either to the UN’s African Group or to the Organisation of Islamic Cooperation, a political bloc that has members in four of the UN’s five official regional groups. These countries wield significant political clout at the UN – they have plenty of political and geographical allies to rely on and pressurise.
One of the reasons it took so many years for the Human Rights Council to create an Independent Expert on sexual orientation and gender identity minorities is because these countries have used their alliances to block any advances at the Human Rights Council. They have used and will use any and all political tactics to do so, including arm-twisting and intimidation.
One victim of these tactics has been South Africa, which in 2011 sponsored the council’s first and to date only panel on Lesbian, Gay, Bisexual and Transgender rights. At the start of that panel, almost all delegates from Islamic, Arab and African countries walked out of the room.
Since then, South Africa has taken a back seat on these issues in the face of pressure from its regional allies, who have effectively silenced it from speaking out on this issue at the UN. And when it came to the 2016 Human Rights Council vote on creating the independent expert, it abstained.
South Africa was not the only country to cave under pressure – Botswana, Ghana, Namibia, and the Philippines all abstained too, despite their relatively progressive records at home. And now the General Assembly has to approve the resolution, the same anti-LGBT governments are pressuring countries such as Burkina Faso, Mauritius, Mongolia and Thailand not to vote in favour of human rights that they already recognise.
The General Assembly implements the Human Rights Council’s resolutions by adopting the council’s Annual Report. It’s become standard practice that the Assembly doesn’t reopen these reports; the only Human Rights Council resolutions it has explicit competence to act on are ones that provide recommendations for developing human rights and for standard-setting.
The General Assembly has only once voted to overturn a Human Rights Council resolution, a proposal on protecting human rights defenders. It did so by arguing that the council had gone beyond its competence by creating something that went system-wide rather than focusing solely on human rights.
This new mandate does not go beyond the council’s competence, so the African Group and its allies are trying to defer consideration of the resolution – in short, to keep kicking the can down the road. But by doing so, they are also claiming that the fact of LGBT minorities’ rights is a developing rather than existing area of international human rights law.
This is a backstairs effort to suppress the rights of these vulnerable groups. It’s being done behind the backs of the ambassadors, civil society organisations and other groups who fought long and hard to create this mandate. If the proposal being used to do this passes, those people’s efforts might all have been in vain.
Pressure and priorities
To understand this sort of backroom strategising, it pays to remember just how big the UN system is. While some countries’ ambassadors to the Human Rights Council in Geneva have large missions supporting them, others have very little, if any, communication with their counterparts across the Atlantic.
The pressures on states’ UN ambassadors are vastly different in Geneva and in New York. Negotiations conducted in one part of the UN will frequently have little if any bearing on the same discussions elsewhere. Vote-swapping is often used to ensure that a country gets its way in a priority area – and also to shift priorities from one UN body to the next.
Without clear instructions from their governments to make protecting LGBT rights a policy priority, ambassadors are very vulnerable to deal-making pressure from other states – and the states using the General Assembly to overturn this Human Rights Council resolution are no doubt using just this sort of pressure to get their own way.
To fight back, civil society and the public must exert pressure on their governments to make this issue a priority, as all fundamental rights should be. Most of the world has fought long and hard to protect various groups’ rights, many of them against the same states that now want to continue subjugating and criminalising LGBT people without outside interference.
These states are mounting an attempt to justify and enable systematic state-sponsored violations of fundamental human rights. If they succeed, they will set a dangerous precedent – and the consequences could be dire. It’s time for UN members to prioritise human rights protection over diplomatic deal-making.