The power of a positive vision: How the Human Rights Council came to adopt a majority resolution on human rights, sexual orientation and gender identity

04.06.2016

In September 2014, the United Nations Human Rights Council adopted an important resolution on violence and discrimination based on sexual orientation and gender identity. It was the first such resolution after a period of painful inertia since 2011, and was adopted by an absolute majority, with the support of States from all regions, and a substantial increase in the margin of success. John Fisher reflects on the factors that contributed to such a positive outcome.

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By John Fisher, former Co-Director, ARC International; Geneva Director, Human Rights Watch

In September 2014, the United Nations Human Rights Council adopted an important resolution on violence and discrimination based on sexual orientation and gender identity. It was the first such resolution after a period of painful inertia since 2011, and was adopted by an absolute majority, with the support of States from all regions, and a substantial increase in the margin of success. John Fisher reflects on the factors that contributed to such a positive outcome.

When the Human Rights Council adopted the first UN resolution on human rights, sexual orientation and gender identity, presented by South Africa in June 2011, it seemed that a turning point had been reached in the international protection of LGBTI persons from violence and discrimination.

Most thematic resolutions are annual, some are biennial, but as June 2012, 2013 and 2014 each came and went with no signs of a follow-up initiative, progress seemed stalled, and many began to question when – and even whether – the Council would again take up its responsibility to address human rights violations based on sexual orientation and gender identity.

These questions became particularly acute when the June 2014 session ended on a sour note, with the adoption by a 22-20 vote of the Council’s first ever no-action motion on a thematic issue, designed to block the Council from even considering previously agreed language on the diversity of family forms. As a result, many feared a return to the dysfunctional days of the former Commission on Human Rights, when bloc politics and procedural manoeuvres frequently undermined consideration of substantive human rights issues.

And yet, the Council’s 27th session (September 2014) ended with the adoption of a resolution on sexual orientation and gender identity, by an absolute majority of the Council, with the support of States from all regions, and a substantial increase in the margin of success.

How did this become possible?
 What factors contributed to this positive outcome, and what are the lessons to be learned?


Power of a positive vision

Every initiative needs clear, committed leadership. At initial meetings, States from diverse regions were concerned that the resolution might not succeed. Understandably, no State wants to risk political capital for an initiative that might fail.

Yet no initiative can come to fruition in an atmosphere of ambiguity. A time comes when it is better to try, even with the risk of losing, than to lose by default because we were unwilling to try.

There is a saying: ‘whether you believe you’ll succeed, or whether you believe you’ll fail, you’ll be right.’ The fact that the voting outcome surpassed even our best expectations makes one wonder: how many other positive initiatives never see the light of day because of fear of failure?

Strong but constructive leadership

Once Brazil, Chile, Colombia and Uruguay, as lead States, decided to bring a resolution, they gave it their all. Subsequently, Argentina also joined the Core Group. The resolution process was marked by dedicated outreach, tenacity and conviction.

At the same time, the lead sponsors were determined to ensure a constructive process. All points of view were heard during informals, and conversations were held with all stakeholders, including those who had concerns. The lead sponsors opted for a clean process, eschewing procedural tactics to block the seven hostile amendments that were presented, instead allowing these to be debated on their merits.

Non-governmental organisations were requested not to cheer or clap when the resolution was adopted, recognising that – emotional though this milestone was for many of us – it is important not to divide the Council into ‘winners’ and ‘losers’, but to instead acknowledge that the increased base of support reflects an ongoing dialogue with States from all regions. In that light, the resolution is not an end in itself but an important step in that continuing process.

The limits of negative campaigning

Conversely, the constructive approach of the lead sponsors stood in marked contrast to the negative pressure and inflexibility of a small number of States. A barrage of hostile amendments designed to strip the resolution of all substance were defeated each in turn, there was little appetite amongst Council members to revive the much reviled no-action motion, and the most hostile States were reduced to relying upon their own inflexibility to claim that the resolution should not proceed for lack of consensus.

Engaging the debate: from polarization towards consensus

All too often, ‘lack of consensus’ or ‘polarisation’ is invoked as a reason not to advance an initiative at the UN. Consensus is a worthy goal, but it is a process that often begins with polarisation, moves forward through dialogue and results in increased understanding. It is precisely through engaging the debate and addressing sensitive issues that different points of view can be considered and common ground identified.

It is easy for the Council to address issues on which everyone agrees. The test of the Council’s effectiveness is its capacity to address the issues on which there is disagreement, with a view to protecting all persons from human rights violations in accordance with its mandate.

Building relationships

The effectiveness of an approach based on cross-regional outreach and dialogue can be seen in the increased constructive engagement by States from all regions.

In the end, the resolution was adopted with support by all States from the Latin American region, from the Western group, and by all States from the Eastern European group except Russia. There was increased support by States from the Asian region, and only 7 of the 13 member States from the African region voted against the resolution, compared with 10 in 2011. A number of States commended the process and expressed willingness to maintain the dialogue, even if they were not yet ready to commit their support.

This highlights the importance of maintaining relationships, addressing concerns and advancing discussion on an ongoing basis. As one ambassador from a country with concerns told us when the session was starting: ‘we’re only approached when our vote is wanted’, encouraging us to host briefings and maintain dialogue, not just during Council sessions, but intersessionally when the pressure is off.

Civil society collaborations

Last, but by no means least, the successful outcome highlights the importance of strong civil society collaborations – with States, with the Council, and with each other. The process involved substantial engagement by civil society organizations, working through our own diverse perspectives to articulate clear expectations for the UN human rights system, engaging with States to make these expectations known, bridging the divide between Geneva and capitals, and putting a human face on the challenges we experience.

As one of the lead diplomats wrote to me the day after the vote, ‘Your faces yesterday made me feel that my job, that sometimes I have the impression is too abstract, has a real impact on real people. This is the kind of thing that reinforces my commitment to human rights.’

Many factors came together leading into the September 2014 session to transform an initiative that had almost stalled into a positive outcome that actually succeeded in building bridges across diverse perspectives and laying the groundwork for further follow-up. As we reach mid-2016, it is time for the Council to build upon that success by creating a dedicated mechanism such as a Special Rapporteur to finally bring to these issues the systemic attention they require. The lessons of the past provide hope for what can be accomplished with leadership, conviction, a collaborative approach and a shared commitment to putting human rights first.

And that’s good not just for the issue, it’s good for the Council and for all those who care about human rights.

John Fisher was formerly Co-Director of ARC International, an NGO focused on advancing LGBTI rights internationally, and is now Geneva Director of Human Rights Watch. Follow him on Twitter @JohnFisher_hrw‪‪.