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URGENT ACTION NEEDED: SOGI Independent Expert STILL at risk!

  1. Summary

We currently face an urgent threat the UN Independent Expert on SOGI at the General Assembly (and Fifth Committee) in UN headquarters in New York.

An attempt at the UN Third Committee of the General Assembly to halt the work of the SOGI Independent Expert through a resolution introduced by the African Group was successfully rejected last week.  This great outcome was the result of mobilization by activists around the globe, as well as concerted efforts by key States particularly 8 Latin American States:  Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Mexico, Uruguay.

However, the mandate of the Independent Expert and the integrity and independence of the Human Rights Council are still at risk. The Independent Expert mandate could still be challenged at the General Assembly plenary. States must resist any attempt to do this; civil society must influence state positions.

  1. What’s the background?

Each year the Human Rights Council delivers a report on its work to the United Nations General Assembly. This year the report contained the decision of the Council to create the mandate of the SOGI IE (Resolution 32/2).  The UN Third Committee of the General Assembly – which considers human rights issues – met in October / November.

During the most recent session, the African Group introduced a resolution on the report the Human Rights Council provides on its work that year. The African Group resolution contained a paragraph that called for the work of the expert to be halted ‘in order to allow time for further consultations to determine the legal basis upon which the mandate of the Expert is defined.’  Eight Latin American States introduced an amendment deleting this language.  It was successful – but by a tight margin of 7 votes (including 13 African governments that did not support the “African Group” language opposing the mandate).  The African Group resolution acknowledging the Human Rights Council report then passed without the language attempting to block the SOGI Independent Expert.

  1. What happens now? 

The General Assembly plenary will now consider the decisions of the Third Committee, including the resolution on the Human Rights Council report.  This provides another opportunity the African Group to try to block the work of the expert, by introducing an amendment to the resolution. If successful, this would mean the expert’s work would be halted and we again face an attack on the independence of the Human Rights Council!

  1. Why do we think that an amendment might be introduced? 

African Group States, and others, have argued that the tight vote on the creation of the mandate, and the Third Committee amendment vote show that this is an issue that divides the UN. They question the legitimacy of the decision. Based on our sources, they will attempt to introduce the same paragraph halting the work of the mandate back into the text of the resolution in the General Assembly.

There are two possibilities we’re most concerned by:

  • If the opposition wins, they can halt the work of operating mandate holder.
  • If they lose but increase their margin (even by as little as one vote), they could still claim a win for their argument that there is a global division on SOGI.

  1. Timing? 

The GA plenary will be in December.  It could be as early as the week of the 5th December and as late as the week of the 19th December.

Activists must be vigilant throughout this delicate time when many take vacation.  If activists don’t engage consistently over the next three weeks, there is no reason to think the mandate will survive the General Assembly.

  1. Fifth Committee 

The Fifth Committee considers the financing of the work of the Expert. They could decide not to approve a budget line.  They won’t meet until the second half of December.  The General Assembly Plenary is our first hurdle!

  1. Action!!!

It is vital that ‘swing’ States resist any attempts to halt the work of the expert.  They need to hear messages from national level, in Geneva and NY.  Please:

1. Reach out to States that did not vote against the LAC amendment (a yes vote or diverged from a ‘negative’ group position through an abstention) to thank them for their stand, to remain vigilant about developments at the General Assembly, and to resist any efforts to halt the work of the expert at the GA (and encourage other States to do so).

2. Reach out to States that abstained where we expected a positive vote, and to those who voted negatively to urge them to resist any efforts to halt the work of the expert.

3. Reach out to States who didn’t vote to urge them to resist any efforts to halt the work of the expert.

a. Key ‘swing’ States: 

AFRICA: 

  • Equatorial Guinea
  • Guinea-Bissau
  • Liberia
  • Mozambique
  • Rwanda
  • Sao Tome and Principe
  • Sierra Leone
  • Somalia
  • South Sudan

ASIA: 

  • Bhutan
  • India
  • Lao People’s Democratic Republic
  • Lebanon
  • Myanmar
  • Nepal
  • Philippines
  • Turkmenistan

CARIBBEAN ISLANDS: 

  • Barbados
  • Cuba
  • Dominica
  • Ecuador
  • Grenada
  • Haiti
  • Paraguay
  • Trinidad and Tobago

PACIFIC ISLANDS:

  • Micronesia
  • Papua New Guinea
  • Solomon Islands
  • Tonga
b. The African Group amendment in the General Assembly should be resisted for the following reasons: 

THE WORLD IS NOT REGIONALLY DIVIDED ON THIS ISSUE.

  • The African Group and other like-minded states want us to believe that the world is regionally divided on this issue. This is not true.
  • The African Group and the Organization of Islamic Cooperation cannot even claim consensus within their own groups in this issue. Despite the

African Group tabling the resolution as a group, 13 African Group member states did not support African Group position in their votes, including South Africa, who made a statement in support of the LAC amendment and protection from discrimination on the basis of SOGI. Albania voted against the position of the Organization of Islamic Cooperation.

  • Key countries from the Global South have led the protection of the mandate holder. The LAC amendment was co sponsored by 59 states from most regions of the world and led by 8 Latin American States:  Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Mexico, Uruguay. Countries including Thailand, South Korea and Japan made statements of support for the LAC amendment in the Third Committee vote.

A DEFERMENT IS TANTAMOUNT TO A BLOCK 

The African Group and other like-minded states want to indefinitely halt the mandate holder from any future work. The group is attempting to achieve this under the pretext of deferring the mandate holder temporarily in order to consult more widely on the definition of “sexual orientation” and “gender identity” in international law.

The African Group (as a group as opposed to as individual states) has refused to engage on dialogue on this issue when presented with the opportunity in the current session of the General Assembly. The African Group has no intention of engaging in dialogue now.

The principles of universality and non-discrimination enshrined in the Universal Declaration Human Rights, and the responsibility of the Human Rights Council under OP2 of General Assembly resolution 60/251, for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner” provide a clear legal basis for this mandate. This is the same legal basis on which all three SOGI resolutions adopted by the Human Rights Council were founded, and which is fully articulated in the two reports A/HRC/19/41 and A/HRC/29/23 requested of the United Nations High Commissioner for Human Rights by the Human Rights Council.

On the basis of two prior resolutions and two OHCHR reports on the question of violence and discrimination on the basis of sexual orientation and gender identity, the Human Rights Council decided that the issue merited the attention of a specific

THE CREATION OF THE INDEPENDENT EXPERT ON SOGI DOES NOT CREATE NEW RIGHTS

  • Sexual orientation and gender identity are well-understood concepts in the United Nations system and have been addressed in multiple United Nations reports, including Human Rights Council resolutions put forward by South Africa in 2011 and a second resolution in 2014.
  • An explicit treaty-based definition is not a requirement for a valid mandate of the Human Rights Council. Several other mandates have been created on that basis (eg on albinism, minorities, internally displaced persons) In fact, an Independent Expert or Special Rapporteur can help generate understanding and international agreement where there may be ambiguities.

Halting the work of the Independent Expert would be very harmful to anti-violence and discrimination efforts in relation to LGBT persons.  It would also send out the dangerous message that LGBT persons are not entitled to full protection under international human rights law, and imperil the rights of LGBT persons worldwide.

INSTITUTIONAL INTEGRITY / AUTHORITY OF HUMAN RIGHTS COUNCIL  

The authority of the Human Rights Council to create mandates of independent experts and special rapporteurs, such as that of the Independent Expert on Sexual Orientation and Gender Identity (SOGI), is long-standing.  The General Assembly mandates this in resolutions 60/251 and Human Rights Council resolution 5/1.

THERE ARE SEVERAL EXAMPLES OF VOTED DECISIONS CREATING SPECIAL PROCEDURES.

As with many mandate holders in the past, differing views exist on the resolution to appoint the Independent Expert on SOGI. It is clear that the creation of the Independent Expert at the June session of the Human Rights Council was fully within the mandate and authority of the Council.  While differing views on the resolution exist, it was validly adopted at the Council after an open and vibrant debate by a vote 23 – 18).  Several Special Procedures have been created by voted resolutions.

A mandate-holder was subsequently appointed at the September Council session without a vote and commenced work on November 1st. The independent expert has been appointed and started work. Overturning the decision on a fully functioning mandate holder would be an unprecedented move. Any special mandate holder could be at risk should this be allowed, which one will be next?

Overturning decisions of the Human Rights Council will seriously undermine the effective functioning of the international human rights system.  This would be contrary to the established institutional relationship between the General Assembly and the Human Rights Council, as outlined in resolution 60/251 which established the Council and affirmed by resolution 65/281 which reviewed the Council’s work and functioning.

TIME IS OF THE ESSENCE.

PLEASE TAKE ACTION NOW.

PLEASE SHARE THE RESULTS OF YOUR OUTREACH WITH OTHER NGOS.

TOGETHER, WE CAN PROTECT THE INDEPENDENT EXPERT ON SOGI + SEE POSITIVE IMPACT FOR LGBT PEOPLE EVERYWHERE!

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