Mandate Renewal of Independent Expert on Sexual Orientation and Gender Identity At Risk

Wide view of the Human Rights Council during an event on political leadership and legislative reform in ending violence and discrimination against lesbian, gay, bisexual, and transgender people. (UN Photo/Elma Okic)

In June 2016, the United Nations Human Rights Council mandated the UN secretary-general to appoint an independent expert on protection against violence and discrimination based on sexual orientation and gender identity. With more than 70 of the 193 UN member states criminalizing individuals who are lesbian, gay, bisexual, or transgender, there were many countries that opposed this new mechanism. Three years later, that mandate is up for renewal during the Human Rights Council session ending this week, and there are serious concerns about whether it will pass.

The tactics that were used to oppose the mandate in 2016 are still employed, and in some cases have expanded. When the mandate first passed, those states in opposition ignored the fact that it focused on fundamental rights that all people hold by virtue of being born human, and instead disingenuously sought to shift the conversation to whether rights related to sexual orientation and gender identity form part of international human rights law. In this way, they sought to justify violating the fundamental rights of people who belong to that vulnerable group, something akin to previous attempts to deny women, children, or racial minorities fundamental rights. Those states first tried to advance that position at the Human Rights Council then later tried, and failed, to block the mandate at the General Assembly.

If states that discriminate against, imprison, torture, or put to death sexual orientation and gender identity (SOGI) minorities are allowed to use the UN to justify doing so, the international human rights system will be in peril. The essence of international human rights law is that we all hold fundamental rights because we are human. Those rights do not change on the basis of characteristics such as race, religion, gender, age, sexual orientation, or gender identity.

The UN has a number of mechanisms to protect and promote human rights across the world. As the UN’s main human rights body, the Human Rights Council examines, discusses, and passes resolutions on any human rights issue and any country situation. It is a political body to which 47 countries are elected for three-year terms. One of its key methods for protecting and promoting human rights is to appoint independent experts and special rapporteurs.

Those individuals are part-time, unpaid appointees who hold their mandates for short, finite periods of time—three years for thematic mandates and one year for country mandates, with no individual able to hold a specific mandate for more than six years. They are highly qualified experts, usually working in academia, law, or civil society. Mandate holders visit countries to examine human rights issues, consult widely with all sectors of society, and submit reports and recommendations that are discussed not only at the Human Rights Council, but also at the General Assembly and sometimes the Security Council. This mechanism is the “crown jewel” of the UN human rights system.

Vitit Muntarbhorn served as the independent expert on SOGI for one year before resigning owing to ill health. Since that time, Victor Madrigal-Borloz has been the mandate holder. These mandate holders’ reports have already helped to develop understanding of the rights of SOGI minorities to be protected from violence and discrimination, as well as of the specific vulnerabilities these individuals face across the world.

Although the special procedures mechanism is valued by almost all stakeholders and actors involved with human rights, many countries dislike independent experts and special rapporteurs shining a spotlight on their own human rights records. Even countries with relatively good human rights records like Australia, Canada, and the United Kingdom have resisted their recommendations, as have many other countries.

But there is a big difference between not wanting to be criticized and not wanting a mandate to exist. The countries seeking to stop the mandate of the independent expert on SOGI from being renewed are not doing so because they are worried that they will be criticized or have a spotlight shone on them specifically. The tactics used demonstrate that they do not want any increase in understanding of SOGI minorities as a vulnerable group, as that might impede their ability to continue to discriminate, imprison, torture, or put to death SOGI minorities with impunity.

Of the more than 70 countries that criminalize SOGI minorities, most belong either to the African Group—one of the UN’s five official regional groups—or the Organisation of Islamic Cooperation, a political bloc that has members in four of the five regional groups. Those countries collectively wield significant political clout at the UN, with many allies based on geographic and political ties. One of the reasons that it took so many years for the Human Rights Council to mandate an independent expert on SOGI is that countries that criminalize such individuals used these alliances to block any advances, and they have continued to do so using a variety of political tactics.

In 2011, the council held its first and (to date) only panel on lesbian, gay, bisexual, and transgender rights, at the start of which almost all delegates from Islamic, Arab, and African countries walked out of the room. Ever since that panel, its sponsor, South Africa, has taken a back seat in the face of pressure from regional allies. Using backdoor routes, South Africa’s regional and political allies have silenced the country from speaking out on this issue at the UN.

Despite strong civil society and public support for protecting the human rights of SOGI minorities, South Africa’s government has taken large backwards strides away from its previous position. Indeed, when it came to the Human Rights Council vote on mandating the independent expert in 2016, South Africa abstained, and was not the only country to cave to such pressures. Other countries that abstained from the vote, despite domestic records that gave rise to expectations they might support it, included Botswana, Ghana, Namibia, and the Philippines. There is concern that other countries might face similar pressures in the renewal vote.

It took nearly five years of negotiations for the mandate resolution even to be tabled. It passed because of tireless efforts from civil society across the world, combined with ambassadors from Latin America, the European Union, and other states that recognize that all human beings are entitled to protection of their fundamental rights.

Given the Human Rights Council’s current composition and changes in national and regional priorities, there is a real risk that the independent expert’s mandate will not pass. However, it is precisely due to the current climate in the Human Rights Council—and its impact on SOGI minorities—that the mandate be passed and the work of the independent expert be strongly supported.

Rosa Freedman is a professor of law, conflict, and global development at the University of Reading.