The UN's Third Committee rejected efforts to halt the work of the new expert on the protection against violence and discrimination based on sexual orientation and gender identity, but the risk to the mandate is not over - resistance is expected to continue in the General Assembly.
The Human Rights Council – the world’s premier human rights body – provides the UN General Assembly with a report once a year on its work. Traditionally the Third Committee and General Assembly plenary pass resolutions in regard to the report. Generally these resolutions simply take note of the Human Rights Council’s report.
However this year the African Group introduced a resolution containing a paragraph seeking to delay the creation of the mandate of the new UN expert to allow for further consultation to determine ‘the legal basis upon which the mandate of the expert’ would be defined.
‘This attempt to scuttle the mandate fundamentally questioned the authority of the Human Rights Council and risked undermining the effective functioning of the human rights system,’ said ISHR’s Pooja Patel. ‘It also risked sending out the deeply troubling message that lesbian, gay, bisexual or trans people are not entitled to protection under international law - a ridiculous concept that has now been rejected twice, but unfortunately still has not been put completely to rest.’
— ISHR (@ISHRglobal) December 13, 2016
Eight Latin American countries introduced an amendment to remove the paragraph relating to the Independent Expert and a debate was held on the amendment.
Calls on States to defend the mandate has been made by NGOs and experts in days prior to the vote with 850 LGBTI and mainstream organisations around the world signing an open letter. The UN Coordination Committee on Special Procedures – Special Rapporteurs and Independent Experts – also issued a statement noting ‘deep concern’ about the African Group initiative to block the expert.
— ISHR (@ISHRglobal) November 21, 2016
The co-sponsors spoke to the authority of the Human Rights Council to create the Independent Expert which was based on the conclusion that the issue merited specific attention. Two prior Council resolutions and OHCHR reports spoke to that need. The threat of reopening decisions of the Human Rights Council also impressed States who expressed concern that the authority of the Council and the effective functioning of the system would be undermined.
Brazil noted that deferring decision of Human Rights Council to create Independent Expert on sexual orientation and gender identity would ‘severely jeopardise’ the Council’s ability to function. Mexico also defended the mandate of the Expert noting that the principle of non-discrimination should not be open for discussion.
A hugely welcome statement was made by South Africa – who had disappointingly abstained from the vote held in June at the Human Rights Council creating the mandate – who spoke of the question of discrimination tearing the country apart ‘for more than three hundred years’. Referring to his country’s constitution, the Ambassador added that South Africa ‘will not add more wounds due to discrimination.’
— Tom Clarke (@TomHRLC) November 22, 2016
On behalf of the co-sponsors of the resolution – the African Group, Pakistan, Qatar, Russia, Saudi Arabia, UAE and Yemen – Botswana noted that it was a discussion on ‘very controversial notion of SOGI’. Egypt took a similar line noting, in name of the Organisation of Islamic Cooperation (OIC) (with one exception), that the SOGI mandate ‘impinges’ on the culture and lifestyle of many countries.
The Botswanan Ambassador noted that the discussion was legitimate as the General Assembly was the parent body of the Human Rights Council and that stopping such discussion will ‘divide our great organisation’.
The legitimacy of the Human Rights Council decision was also questioned on the basis of representation. Singapore noted that small states are rarely on the Human Rights Council and as such, the General Assembly authority to oversee decisions of the Council was all important.
The amendment was adopted by 84-77 with 17 abstentions. Although the resolution was introduced in name of the whole African Group, 13 African countries diverged from the Group position voting in favour of, abtaining on or not voting on the amendment.
Finally, the resolution – stripped of language related to the Independent Expert – was then adopted by 111-2 with 59 abstentions.
— Keith Michael Harper (@AmbHarper) November 30, 2016
‘The Third Committee decision to reject attempts to halt the work of the mandate-holder is critical, and speaks to the huge effort by key States and NGOs around the work to defend the mandate’, said ISHR’s Eleanor Openshaw. ‘However, the General Assembly has yet to consider the decisions of the Third Committee and the potential exists for attempts to reverse the Third Committee decision in support of the mandate.’
‘It is essential States remain alert to any such attempts and resist them,’ said ISHR’s Pooja Patel. ‘This is a question of defending the principle of non-discrimination and of ensuring that all people are protected from violence and discrimination. All States should stand for that.’
— eleanor openshaw (@eleanoropenshaw) November 21, 2016