The extent to which this non-cooperation would be taken was seen in the resolution introduced by the African Group in the Third Committee of the General Assembly in the debate on the Report of the Human Rights Council in November. Usually a routine resolution by the African Group to adopt the report of the UNHRC, this time around it stated that the group “decides to defer consideration of and action on Human Rights Council resolution 32/2 of June 30, 2016, on protection against violence and discrimination based on sexual orientation and gender identity, in order to allow time for further consultations to determine the legal basis upon which the mandate of the special procedure established therein will be defined.”
The African Group in their statement went on to call for the “suspension of the activities of the appointed independent expert pending the determination of this issue.” Among the reasons underlying this call was that “non-internationally agreed notions such as sexual orientation and gender identity are given attention, to the detriment of issues of paramount importance such as the right to development and the racism agenda.”
The African Group also stated that the appointment of the independent expert would “delve into matters which fall essentially within the domestic jurisdiction of states counter to the commitment in the United Nations Charter to respect the sovereignty of states and the principle of non-intervention.”
How should India respond to this African resolution, which will likely face vigorous opposition by the Latin American, European, North American and Asian states that voted for the establishment of the independent expert? Which way should India vote?
India’s track record on LGBT issues
For the record, India abstained on the vote to establish the independent expert on SOGI. India has a mixed record on voting on issues pertaining to LGBT rights at the UN level. In September 2014 – less than four months after the Modi government came to power – India abstained from the vote on a resolution on sexual orientation and gender identity at the UNHRC. However, in March 2015, India joined Russia, Pakistan, Saudi Arabia, China and Iran in voting against extending the benefits available to heterosexual couples to same-sex couples at the UN General Assembly. However, with respect to voting on whether the language on sexual orientation should be removed from a series of resolutions on extrajudicial executions at the UNGA, India has consistently voted to retain the language of ‘sexual orientation’.
If India votes to suspend the working of the duly-elected mandate holder on SOGI, it will send out a message that LGBT people are not entitled to full protection under international human rights laws. Sending out such a message at this moment in time would only exacerbate concerns around how the Modi government views LGBT rights. With the failure to support parliamentary efforts at decriminalising same-sex conduct as well as backsliding on the protection of transgender rights with the introduction of the highly regressive Transgender Persons (Protection of Rights) Bill, India does not have a favourable track record on LGBT issues. This vote is an opportunity for the Indian government to show that it stands by the notion that LGBT people are entitled to the full protection under human rights laws.
Do the Africa Group’s objections hold?
The logic of the African Group that the very appointment of the independent expert interferes with the “domestic jurisdiction” and “sovereignty” of the state might have some sway with India. However, the falsity of this claim needs to be exposed. The independent expert, as per his mandate in resolution 30/2, is expected to “assess the implementation of existing international human rights laws and standards”, “to raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity”, “to engage in dialogue and consult with states and other relevant stakeholders”, “to work in cooperation with states in order to foster the implementation of measures that contribute to the protection of all persons against violence and discrimination based on sexual orientation and gender identity”.
The fact that concerns with respect to violations on grounds of sexual orientation and gender identity would be raised by the independent expert cannot in itself amount to a violation of sovereignty, especially when the mandate holder’s task is laid down in language such as “assess”, “raise awareness”, “engage in dialogue” and “work in cooperation”.
The argument of the African Group that the protection of SOGI rights detracts from the right to development and anti-racism sets up a false dichotomy. It intentionally ignores the fact that the SOGI mandate is envisaged as an intersectional mandate. In a preambular paragraph, the mandate is tasked with “undertaking to support its broad and balanced agenda and to strengthen the mechanisms addressing issues of importance, including fighting racism, racial discrimination, xenophobia and related intolerance in all their forms”. Resolution 30/2 of the UNHRC in operative para two is explicitly committed to “address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity”.
Standing up for universal rights
India’s vote should factor in the understanding that as far as this resolution by the African Group is concerned, its implications are not only with respect to LGBT rights but also about the working and credibility of the human rights system. The attempt to suspend the working of the mandate holder who has been duly appointed by the UNHRC would severely impact the credibility of the UN rights body.
Challenging the resolutions passed by the UNHRC at the UNGA makes a mockery of the existence of the organisation. In effect, by doing so we are saying that decision-making at the UNHRC can be challenged by any aggrieved group of states at the Third Committee. In the year of the 20th anniversary of the UNHRC, this resolution is a blow to the functioning and decision-making of the council itself. If this resolution is passed, years from now it will be seen as the first nail in the coffin of the UNHRC.
If India wants to be seen as defending the principle of universal human rights as well as the institutional architecture of international human rights, it is imperative that it votes against the resolution calling for the suspension of the mandate of the independent expert on SOGI.
Arvind Narrain is a human rights lawyer who is currently the Geneva Director of Arc International, which works on international advocacy on LGBTI rights.