John Rizos
“It would turn back the clock on the progress made globally in relation to LGBTI rights.” The Director for ARC International lamented in response to the opposition for denouncing the UN Human Rights Council’s resolution to monitor and investigate LGBTI rights violations more closely[1]. Although the resolution is not binding, by merely calling upon and encouraging State cooperation[2], the protections it offers cover basic human rights and treatment.
On June 30, 2016 the UN Human Rights Council (UNHRC) adopted the resolution, establishing an independent expert for the protection against violence and discrimination based on sexual orientation and gender identity[3]. The UNHRC recommended the position of an independent expert after reports of widespread violence and deaths in the LGBTI community[4]. It mandates the expert with the responsibilities to assess implementation of international instruments, to raise awareness of discrimination, to work in cooperation with States, to address forms of violence, and to conduct advisory services[5]. Vitit Muntarbhorn was appointed as the independent expert on September 30, 2016[6]. However, the resolution is currently receiving strong opposition with a call for cancellation from a coalition of African states. .
Through a separate resolution to the General Assembly, the African bloc is seeking to suspend and subsequently repeal the independent expert position and the UNHRC’s resolution altogether[7]. Sierra Leone initiated a resolution on behalf of the Group of African States to “defer consideration” of the position[8], to delay monitoring and to suspend activities pursuant to a determination of the legality of the HRC’s resolution[9].
The African States are claiming that the UNHRC’s resolution violates international law. They claim that it delves into matters reserved for domestic jurisdiction, that it gives priority to sexual orientation discrimination while it ignores other types of African discrimination and development[10], and that it lacks universal support[11]. Further, the African Group claims that sexual orientation and gender identity should not be linked to international human rights instruments[12]. Amongst the countries of the African opposition is South Africa, which had also abstained from voting in the UNHRC’s resolution[13].
The opposition’s reaction is not a surprise. However, South Africa’s stance is surprising as it has contributed to and upheld the development of progressive jurisprudence[14]. It is also surprising due to the country’s discrimination struggles, Constitutional guarantees to universal rights, and recent actions regarding protection of LGBTI rights[15]. South Africa abstained from voting during the UNHRC’s resolution because of alleged “unnecessary divisiness”[16]. It currently appears to agree with the African States’ stance that the UNHRC resolution jeopardizes “the entire international human rights framework as [it] create[s] divisions” and that it does not fit within international law[17].
Even recently, the South African Department of Justice has worked to protect LGBTI rights and the Department of Home Affairs was in the center of controversy by refusing entry to a pastor who had made homophobic hate speeches[18]. So, why did South Africa choose to side with the rest of Africa? Initially abstaining from the vote, but then agreeing with the rest of Africa may be the result of strategic appeasement. South African officials have been criticized for aligning with “Western” beliefs and for persuading the rest of Africa in aligning its politics pursuant to such beliefs[19]. Further, South Africa still owes a large debt to certain African countries for aid during the apartheid and trade to the rest of Africa accounts for $20 Billion of Africa’s trade[20].
The claims that sexual orientation and gender identity should not be included in international law mechanisms are unjustified. Orientation and identity are not outside of international law as they are protected in the principles of universality and non-discrimination established in the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights[21] [22] [23]. Also, the claim that UNHRC’s agenda on sexual orientation and gender identity overlooks issues relating to racism is frivolous. The UNHRC resolution’s purpose is to support a broad agenda, to strengthen mechanisms, and to address issues of racism, discrimination, and related intolerance in any form[24]. Further, claims that the UNHRC resolution violates sovereignty and non-intervention purport a misunderstood role of the appointed expert. The expert is not a decision-making or enforcement body, but instead its purpose is to address issues, raise awareness, engage in dialogue, and to work in cooperation with States for any recommended implementations[25]. Lastly, the unprecedented suspension of the UNHRC resolution would hinder the Council’s institutional architecture and autonomy[26], which would render it “toothless” to future oppositions[27].
If the African bloc’s resolution is put forward for a vote to the General Assembly, South Africa will likely abstain in order to appease Western Countries and to be in accordance with its constitutional guarantees. The backlash from voting against the UNHRC resolution would be too damaging to the State’s reputation and politics as the champion of anti-discrimination following the end of apartheid. It would receive criticism from governments and NGOs alike. South Africa’s stance is most likely a “bluff” in order to appease other African countries until the issue has lost its “steam.”
US officials strongly support the UNHRC resolution and warn that re-opening the resolution to opposition could undermine the council’s ability to function and enforce their mandates. They noted that such review will weaken the Council, as it has never been subject to intervention by the UN General Assembly[28]. Further, a representative from the EU reminded that the States must “protect the human rights of all individuals without distinction of any kind.”[29] The representative emphasized that they have an international obligation to uphold the UNHRC resolution and the opposition lacks legal foundation to oppose it.[30] Amidst Western warnings, the African bloc’s resolution has a good chance of obtaining the necessary 97-vote simple majority to pass,[31] with the support of the African States and almost every State in the Organization of Islamic Cooperation.[32]
The vote on the African States’ resolution in the General Assembly was scheduled for Tuesday, November 8, 2016. However, the UN has delayed talks and voting on canceling the independent expert and amending the UNHRC resolution until later this month, November 2016.[33]
John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.
[1] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law
[2] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2
[3] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html
[4] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/
[5] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2
[6] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[7] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html
[8] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[9] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html
[10] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF
[11] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights
[12] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html
[13] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2
[14] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law
[15] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[16] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF
[17] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law
[18] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law
[19] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF
[20] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF
[21] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[22] http://www.un.org/en/universal-declaration-human-rights/
[23] http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[24] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[25] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[26] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights
[27] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[28] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[29] http://www.un.org/en/universal-declaration-human-rights/ at Article 2.
[30] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html
[31] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/
[32] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/
[33] https://76crimes.com/2016/11/10/opposition-and-delay-confront-anti-lgbt-push-at-u-n/
Ius Gentium 