On 30 June 2016, the United Nations Human Rights Council (UNHRC) adopted a historic resolution (32/2) to set up the first UN Independent Expert on Sexual Orientation and Gender Identity (SOGI) to address the serious issues of violence and discrimination against people based on their sexual identities. It is popularly called the SOGI mandate.
It was initially adopted with 23 countries voting for, 18 against with 6 abstentions. However, the countries on the losing side such as the OIC (Organsiation of Islamic Countries) including Saudi Arabia and Pakistan opposed the mandate.
Subsequently in November 2016, the African Group introduced a hostile resolution against the SOGI mandate stating that it “decides to defer consideration of and action on Human Rights Council resolution 32/2 of 30 June 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”.
In a letter dated November 7, 2016, addressed to External Affairs Minister Sushma Swaraj and to the Ambassador at the Permanent Mission of India in the UN, rights organizations and individuals have now urged India to vote against the hostile resolution brought by the 54-nation African group against the SOGI mandate.
The letter gives the following reasons for India to oppose the resolution:
The proposed resolution is in effect a no-action motion, seeking to defer action on the UNHRC resolution 32/2 indefinitely.
There is no real basis for questioning the legal validity of the adopted resolution 32/2 since it is in line with the legal basis on previous three resolutions related to SOGI adopted by the UNHRC were founded.
The argument of the African Group that protection of SOGI rights detracts from the right to development and the anti-racism does not sit well with an analysis of the mandate of the SOGI Expert because it intentionally ignores the fact that the SOGI mandate is envisaged as an intersectional mandate.
The logic of the African group that the very appointment of the Independent Expert interferes with the ‘domestic jurisdiction’ and ‘sovereignty’ of the State is inconsistent with the mandate of the Independent Expert on SOGI.
While differing views on the resolution 32/2 do exist, it was validly adopted at the Council after an open and extensive debate by a vote of 23-18.
If the Third Committee now attempts to undo a decision validly taken by the UNHRC and if India votes in favour of such an attempt, it would essentially mean that any Council resolution could be re-opened and the Council’s authority to fulfill its mandate would be substantially undermined.
The adoption of this hostile resolution will be very harmful to anti-violence and anti-discrimination efforts in relation to LGBTQI individuals as it would send out the wrong message that these groups of people are not entitled to full protection under international human rights law.
India’s vote is also important in the context of the recent development around transgender individuals’ rights in India, with the recent draft bill, entitled Transgender Persons (Protection of Rights) Bill 2016, being tabled in the Lok Sabha.