6.2 Analysing South Africa’s Contribution to UN SOGI Rights Debates
6.2.4 Seven Hostile Amendments
The following year, at the 27th session of the UNHRC, the Brazilian delegation tabled resolution A/HRC/27/L.27/Rev.1 (27/L.27/Rev.1) on behalf of 44 sponsors71 from all regions except Africa. This resolution requested an update in time for the 2015 UNHRC 29th session to the UNHCHR’s 2012 SOGI report (A/HRC/19/41 Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity) with the inclusion of a best practice review for overcoming discrimination and violence. Although based on resolution 17/19, which had been approved by vote in 2011, Egypt presented seven amendments72 on behalf of ten states73, eight of which were members of the OIC, and seven were African. Six of the amendments sought to replace all references to “sexual orientation and gender identity” including in the title of the resolution, with the broader “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”, while 27/L.49 sought to add the following paragraph, “Reaffirming the sovereign right of each country, consistent with national laws and development priorities, with full respect for the various religious and ethical values and cultural backgrounds of its people, and in conformity with universally recognized international human rights” (UNHRC, 2014a; 2014b; 2014c;
2014d; 2014e; 2014f; 2014g).
Introducing these amendments, Egypt said that the sponsors were concerned that sexual orientation and gender identity were new notions enjoying no international consensus nor definition in international human rights law and as such would create “a new category of persons” with “special protection” based on “private sexual behaviour”. Additionally, they were deemed contrary to particular cultural, religious and ethical beliefs and portentously the delegate determined that if
71 Albania, Argentina, Australia, Austria, Belgium, Bolivia (Plurinational State of), Brazil, Bulgaria, Canada, Chile, Colombia, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America and Uruguay.
72 A/HRC/27/L.45 (27/L.45), A/HRC/27/L.46 (27/L.46), A/HRC/27/L.47 (27/L.47), A/HRC/27/L.48 (27/L.48), A/HRC/27/L.49 (27/L.49), A/HRC/27/L.50 (27/L.50) and A/HRC/27/L.51 (27/L.51).
73 Bahrain, Congo, Djibouti, Egypt, Malaysia, Nigeria, South Sudan, Sudan, Uganda and United Arab Emirates
107 passed the resolution would have created “an inevitable division that can cast its gloomy shadows on the future of the human rights council and its capacity to assume its role as an international platform for international co-operation and dialogue” (UNHRC, 2014h).
In essence these reflected the same objections tabled by Pakistan on behalf of the OIC in 2011 and 2012 (Pakistan, 2011; UNHRC, 2012). Egypt lamented that certain parties were behaving divisively through coercive imposition of their value systems that infringed upon state sovereignty to devise national legal and development strategies and called out “threats” that included “political and economic punitive actions” even though the resolution made no specific demands on individual states (UNHRC, 2014h). The delegate concluded, “Many states remain solidly proud of representing their societies and peoples, reflecting their values, cultures and social backgrounds and realities and also remain firmly committed to upholding and respecting the universality of human rights that this draft resolution aims at liquidating and undermining” (UNHRC, 2014h). In support, Saudi Arabia suggested that if the draft resolution were passed in its current form, it would itself be a violation of human rights by imposing alien values and that religious and cultural specificities must be protected from such (UNHRC, 2014h). Pakistan spoke on behalf of the OIC members of the UNHRC urging that
“the wider connotations of the term sexual orientation can be extremely detrimental and inimical to our Muslim societies in particular and to our youth as a whole” (UNHRC, 2014h).
Brazil, rejecting all the tabled revisions, called for a vote; while Ireland noted that by removing all references to SOGI the amendments would introduce “uncertainty” to the resolution (UNHRC, 2014h). Chile stressed that cultural specificities were already addressed, Italy emphasised that this was merely an extension of an already approved resolution and Montenegro noted that not only did this resolution not create any new rights, but states were also under no obligation to do anything as a result of its passing (UNHRC, 2014h). Austria even asked:
“Does anyone think there is no such thing as violence and discrimination based on sexual orientation and gender identity? Or, does anyone think that this particular form of discrimination does not merit consideration? With some reflection we should be able to conclude that this report is indeed warranted” (UNHRC, 2014h).
Subsequently, the USA stated:
“We appreciate that today’s vote is not an easy one for many states and that the issues we face today are the subject of controversy and also rapid change in many member states, including my own. But just as some, at some point in history had claimed, for cultural reasons justified slavery and discrimination and apartheid [sic], we stand firmly for the idea that human rights are universal. Cultural or regional differences simply cannot justify discrimination, it cannot excuse violence in any way or in any place or against any person” (UNHRC, 2014i).
Although not a sponsor, South Africa’s Ambassador Minty confirmed support for the resolution, in accordance with the South African Constitution and voted against all seven hostile amendments.
108 However, he deplored that “[t]he spirit of this resolution, is in stark contrast to the unhelpful and divisive use of development aid by some countries as a means to shift policies and laws in a select number of countries” (UNHRC, 2014i). Additionally, Jordaan noted that South Africa had been one of the states responsible for reducing the reporting requirement in the final proposed draft resolution from a report to the UNHRC every two years to a single update (Jordaan, 2017a:221-222).
Therefore, although South Africa supported the resolution, they had already restricted its duration.
The only other African state to explain their vote, Botswana, indicated that although domestically violence and employment discrimination on the basis of sexual orientation have both been outlawed, as the state has adapted to social change and greater inclusivity, their vote against the resolution was not a reversal, but recognised the cultural and religious values that prevented SOGI rights from achieving national or universal recognition. Nevertheless, they remained “open to dialogue at national and international level” (UNHRC, 2014i).
A regular opponent of previous SOGI resolutions, China, abstained in the vote confirming that they were concerned for the protection of cultural and religious values but agreed that discrimination should not be tolerated (UNHRC, 2014i). Indeed, in the final vote, of the seven states sponsoring the amendments only two, Congo and United Arab Emirates, were UNHRC members, yet the delegation from Congo abstained on the final resolution, despite not containing any amendments (UNHRC, 2014j). In the end 27/32 was passed without any further amendments and Burkina Faso, Namibia and Sierra Leone all abstained rather than rejected the resolution (UNHRC, 2014j).
6.2.5 “We are not gays!”
In 2015, the A/HRC/29/23 report (29/23), which resulted from 27/32 of 2014, was discussed as part of the general debate on the follow-up to and implementation of the Vienna Declaration and Programme of Action (Under Agenda Item:8) during the UNHRC 29th session. Several states, including the USA and Colombia (on behalf of an international group of states), welcomed the report and the recommendations within it (UNHRC, 2015a). However, it was not mentioned by many states and although South Africa was a member of the UNHRC, they did not speak during this meeting. Although Algeria spoke on behalf of the African Group, the delegate did not mention the report, while Pakistan, on behalf of the OIC, reiterated early concerns that sexual orientation had no place in the UN and should not be imposed “without any regard for cultural or religious sensitivities and differences” (UNHRC, 2015b).
Although the UNHRC report, A/HRC/29/23, was included in the UNHRC Annual Report resolution in the UNGA 70th session, it passed without contest. However, the session was noteworthy for an outburst from Zimbabwean President Mugabe, who stated:
“We […] reject attempts to prescribe new rights that are contrary to our values, norms, tradition, and beliefs. We are not gays! Cooperation and respect for each other will advance the cause of human rights worldwide. Confrontation, vilification and double-standards will not” (emphasis added, UNGA, 2015).
109 His speech included several negative remarks aimed at the USA and President Obama, who at the time was popular among some African publics, for pursuing the advancement of SOGI rights through US international relations and imposing sanctions against Zimbabwe for the suppression of democracy (UNGA, 2015).