6.1 The UN, South Africa and SOGI rights
6.1.2 Evolution of SOGI Rights within the UN
Not only was South African Bev Ditsie one of the first activists to raise the issue of the violence and discrimination against lesbians at the UN, during the 1995 Beijing conference, but at the same conference the erstwhile South African Health Minister, Nkosazana Dlamini-Zuma, appealed for all forms of discrimination to end (Girard, 2007:341). Despite these early interventions, persecution based on sexual orientation had mostly only parenthetically appeared in UN special procedure mandate reports, including those on detention, disappearance, execution, freedom, housing, health, education, torture and violence against women, until 2003 when Brazil tabled resolution E/CN.4/2003/L.92, titled Human rights and sexual orientation, for debate at the UNCHR (Inman and Jernow, 2010: Jordaan, 2020:134; Brazil, 2003). This draft resolution, co-sponsored by 20 states56 and titled Human rights and sexual orientation, urged all states to “promote and protect the human rights of all persons regardless of their sexual orientation”, but faced opposition from the USA, Pakistan on behalf of the OIC and the Holy See as well as a hostile amendment (E/CN.4/2003/L.108) from Egypt seeking to remove all references to sexual orientation (Brazil, 2003; UNCHR, 2003;
Girard, 2007:343; McGill, 2014:15; Jordaan, 2017a:214; Jordaan, 2020:134).
South Africa was not a sponsor of E/CN.4/2003/L.92 and when Pakistan proposed a vote of no motion57 chose to side with neither supporters not opposition and abstained. The resolution was debated, but Libya subsequently voted to postpone further discussion, which South Africa supported, this time against the supporters of the resolution (Jordaan, 2017:2014). The following day after another long debate, South Africa abstained on a vote, which the sponsors lost, to postpone voting on the resolution until 2004. Considered a contentious issue without universal applicability a Brazilian diplomat, who participated in the drafting and debate of the statement, reported, “one African diplomat told the Brazilian ambassador that there are no homosexuals in
55 As one of the 51 founding charter members of the United Nations in 1945, which signed up to the human rights enshrined in the founding UN Charter (articles 1.3, 55c and 62.2), South Africa’s then Prime Minister, Jan Smuts, also pushed for the inclusion of a commitment to fundamental human rights in its preamble, even though domestically he was pursuing racially discriminatory policies (Lloyd, 1990:132-133).
56 Co-sponsored by Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland, Croatia, Cyprus, New Zealand, Poland, Serbia and Montenegro, Slovenia and Switzerland.
57 A vote of no motion seeks to cancel all discussion or voting on a proposed resolution.
98 their countries; that this is something that came with the white man” (Girard, 2007:344). Given the extensive objections, when the UNCHR reconvened in 2004, Brazil, under pressure from the Holy See and the OIC, decided not to raise it again. Girard noted that although approached, South Africa also refused to table it, but did not record why (2007:347).
After this controversial debate, SOGI issues subsequently only appeared in a series of joint statements. These were presented at the UNCHR in 2005, by New Zealand on behalf of 33 states58, in 2006 at the UNHRC, by Norway on behalf of 54 states59, which asked for the UNHRC President to make time for a discussion on the issue in future, and in the first SOGI statement at the UNGA by Argentina in 2008 on behalf of 66 states60 notably including African Group members Cape Verde, the Central African Republic, Gabon, Guinea-Bissau, Mauritius, and Sao Tome and Principe (UNCHR, 2005a; ARC International, 2006; Argentina, 2008; Human Rights Watch, 2008; O’Flaherty and Fisher, 2008:230; UNGA, 2008:31; McGill, 2014:16). This 2008 statement was opposed by Syria on behalf of 59 states61 alleging that it attempted to introduce new ideas, which they argued had no international legal agreement, covered personal choices with no genetic scientific basis and may include “the legitimization of many deplorable acts, including paedophilia” (UNGA, 2008:31-32).
Furthermore, the Syrian statement rejected this intervention concerned that it would infringe on the principles of sovereignty and non-interference, be to the detriment of tackling global discrimination based on race, gender, colour and religion and instead requested a focus on “protect[ing] the family as the natural and fundamental group unit of society” (UNGA, 2008:31-32).
South Africa did not sign the 2005, 2006 or 2008 statements, was not a sponsor of the 2008 Syrian response, and, according to the official Summary and Verbatim Records62, did not speak when the 2005 and two 2008 statements were presented (UNCHR, 2005a; 2006b; UNGA, 2008:31-32).
However, in January 2009 the South African Ambassador to the UN, Ambassador Dumisani Kumalo,
58 Andorra, Argentina, Austria, Belgium, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Iceland, Ireland, Luxembourg, Mexico, New Zealand, Netherlands, Norway, Portugal, Republic of Korea, Romania, Slovenia, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, Uruguay and Venezuela
59 Albania, Andorra, Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Montenegro, Netherlands, New Zealand, Panama, Peru, Poland, Portugal, the former Yugoslav republic of Macedonia, the Republic of Korea, the Republic of Moldova, Romania, Serbia, Spain, Slovakia, Slovenia, Sweden, Switzerland, Timor-Leste, Ukraine, the United Kingdom, the United States of America and Uruguay.
60 Albania, Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Central African Republic, Chile, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Montenegro, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Paraguay, Poland, Portugal, Romania, San Marino, São Tomé and Principe, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Timor-Leste, United Kingdom, Uruguay, and Venezuela
61 Afghanistan, Algeria, Bahrain, Bangladesh, Benin, Brunei Darussalam, Cameroon, Chad, Comoros, Côte d’Ivoire, Democratic People’s Republic of Korea, Djibouti, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Guinea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Libyan Arab Jamahiriya, Malawi, Malaysia, Maldives, Mali, Mauritania, Morocco, Niger, Nigeria, Oman, Pakistan, Qatar, Rwanda, Saudi Arabia, Senegal, Sierra Leone, Saint Lucia, Solomon Islands, Somalia, Sudan, Swaziland, Syria, Tajikistan, Togo, Tunisia, Turkmenistan, Uganda, United Arab Emirates, United Republic of Tanzania, Uzbekistan, Yemen and Zimbabwe.
62 There is no Summary or Verbatim Record or video or audio recording of the 2006 UNHRC session available.
99 issued a statement confirming that South Africa was in full support of the 2008 Argentinian statement in line with the values of the domestic Constitution (DIRCO, 2009). Subsequently, in 2010 the UN Secretary General, Ban Ki-moon, and UN High Commissioner for Human Rights, the South African Navi Pillay63, as well as the Archbishop Emeritus of the Anglican Church of Southern Africa, Desmond Tutu64, and several NGOs and civil society organisations and spokespeople65 delivered an address to the UNGA66 calling for the end to criminalisation, persecution and violence against LGBT people (UNHRC, 2010; ARC International, 2010).
Despite nearly 15 years of advocacy from international NGOs and escalating state support for each statement on sexual orientation and gender identity, by 2010 the UN had still not agreed a resolution on SOGI rights. Domestically, while several states had introduced legislation against SOGI discrimination in employment and the provision of services and some had introduced same-sex marriage, other states, including Russia, Nigeria and Uganda, had begun introducing more stringent domestic legislation criminalising homosexual activity, support and promotion (Msibi, 2014; Kaoma, 2018). Subsequently, between March 2011 and August 2020 SOGI dedicated resolutions, statements, mandates and reports were discussed in 15 separate annual sessions of the UNHRC and UNGA. Despite the successful passing of four SOGI resolutions within the UNHRC, the issues have met multiple hostile amendments, including a marathon UNGA session in 2016 (the 71st session) (UNGA, 2016a; 2016b; 2016c; 2016d; 2016e; 2016f; 2016g; 2016h). The discussions within these sessions form the focus of this study. The four approved resolutions (17/19; 27/32; 32/2 and 41/18), six SOGI reports and the panel discussions, interactive dialogues, statements, presentations and debates are detailed in Figure 1 (resolutions are highlighted in bold font).
63 Navanethem ‘Navi’ Pillay, from South Africa, was UN High Commissioner for Human Rights 2008-2014.
64 Also a South African.
65 Including; David Clarke from SASOD, Guyana; Sunita Kujur from CREA, India; Alice Nkom, Cameroon; Sass Rogando Sasot, Philippines; Viktor Mukasa, Uganda; Syinat Sultanalieva, Kyrgyzstan.
66 This event was co-sponsored by 13 states; Argentina, Brazil, Colombia, Finland, France, Ireland, Mexico, Norway, Romania, Slovenia, Timor-Leste, the USA and Uruguay.
100
Year UN Body Session Title (Resolutions in bold) Document No.
2011 UNHRC 16th
16/… The imperative need to respect the established procedures and practices of the General Assembly in the elaboration of new norms and standards and their subsequent integration into existing international human rights law
(Requested a working group to define SOGI)
A/HRC/16/L.27
UNHRC 17th 17/19 Human rights, sexual orientation and gender identity
(Requested report for UNHCHR) A/HRC/17/L.9/Rev.1
A/HRC/RES/17/19 2012 UNHRC 19th
Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (Panel Discussion on UNHCHR report)
A/HRC/19/41
2013 UNHRC 23rd Norway Statement on SOGI during General Debate on VDPA 2014 UNHRC 27th 27/32 Human rights, sexual orientation and gender identity
(Requested update to report of UNHCHR)
A/HRC/27/L.27/Rev.1 A/HRC/RES/27/32 2015 UNHRC 29th
Discrimination and violence against individuals based on their sexual orientation and gender identity
(Presentation of updated UNHCHR report)
A/HRC/29/23
2016 UNHRC 32nd 32/2 Protection against violence and discrimination based on sexual orientation and gender identity
(Established the mandate for the IE SOGI)
A/HRC/32/L.2/Rev.1 A/HRC/RES/32/2 UNGA 71st Report of the Human Rights Council
(Reported on the establishment of the mandate of the IE SOGI)
A/C.3/71/L.46 A/71/479
2017
UNHRC 35th Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (Presentation of the 1st report of the 1st IE SOGI)
A/HRC/35/36
UNGA 72nd
Protection against violence and discrimination based on sexual orientation and gender identity - Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
(Presentation of the 1st report of the 1st IE SOGI)
A/72/172
2018
UNHRC 38th
Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz
(Presentation of the 1st report of the 2nd IE SOGI)
A/HRC/38/43
UNGA 73rd
Protection against violence and discrimination based on sexual orientation and gender identity - Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
(Presentation of the 1st report of the 2nd IE SOGI)
A/73/152
2019
UNHRC 41st
41/18 Mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
(Extended the mandate of the IE SOGI)
A/HRC/41/L.10/Rev.1 A/HRC/RES/41/18
Data collection and management as a means to create heightened awareness of violence and discrimination based on sexual orientation and gender identity
Visit to Georgia (Add.1) Visit to Mozambique (Add.2)
(Presentation of the 2nd report of the 2nd IE SOGI)
A/HRC/41/45 A/HRC/41/45/Add.1 A/HRC/41/45/Add.2
UNGA 74th
Protection against violence and discrimination based on sexual orientation and gender identity - Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
(Presentation of the 2nd report of the 2nd IE SOGI)
A/74/181
Report of the Human Rights Council
(Reported on the extension of the mandate of the IE SOGI)
A/C.3/74/L.56 A/74/394 2020 UNHRC 44th
Practices of so-called ‘conversion therapy” – Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
(Presentation of 3rd Report of the 2nd IE SOGI)
A/HRC/44/53
Figure 1: A chronological list of SOGI specific debates within the UNGA and UNHRC (2011 – 2020).
101 This next section details, in chronological order, a summary of each of the UN dedicated SOGI rights initiatives presented, discussed and, where relevant, adopted between 2011 and 2020. Each initiative is introduced and explained, noting where relevant those states in support and in opposition, including UNHRC non-member sponsors. Particular attention is paid to South Africa’s participation and that of its continental neighbours, reflecting the recognition of the substantial role played by the African Group in these debates and the importance of “socially shared knowledge” in the development, adoption and rejection of new norms in the international system (Wendt, 1999:141-142; Van Wyk, 2004:105). If any initiative within the UNGA or UNHRC resulted in a vote, South Africa’s position and those of the African membership are highlighted.