A Summary of the Brazilian Resolution on Human Rights and Sexual Orientation

UN Commission on Human Rights 2003

By Suki Beavers

 

 

In the last few years, there has been an increasing awareness of the importance of the United Nations Commission on Human Rights (CHR) including in its work the protection and promotion of human rights of lesbians, gay men, bisexuals and transgendered persons.  A recent victory at the CHR came in 2002 when both the report of the Special Rapporteur, and the resolution on extrajudicial, arbitrary and summary executions included references to sexual orientation.  A vote was called but the resolution was adopted by majority.  Again in 2003, the CHR resolution on extrajudicial, arbitrary and summary executions contained a reference to persons killed because of their sexual orientation.  This reference to sexual orientation remained contentious and was again put to a vote, but was ultimately adopted. 

 

Also at the 59th Session of the CHR, held in 2003, Brazil introduced a new resolution on “Human Rights and Sexual Orientation”.  This is the first time the CHR has been presented with a resolution with a primary focus on sexual orientation.   This Brazilian resolution is groundbreaking at the CHR and at the UN generally. 

 

The first text of the resolution presented by Brazil at informal negotiations was modeled after the Universal Declaration of Human Rights.  It was styled to show that lgbt human rights are not new rights, rather they are universal rights as contained in the Universal Declaration of Human Rights.  In response to that draft, in informal negotiations, many countries expressed support for the concept of protecting and promoting human rights of LGBT persons, however the European Union proposed a much shorter condensed text for the resolution.  NGOs working on this resolution in Geneva also proposed language for the resolution.  Eventually a text was agreed upon and tabled at the CHR (UN. document E/CN.4/2003.L.92 – see the attached copy of the draft resolution).  The co-sponsors of the resolution include: Austria, Belgium, Brazil, the Czech Republic, Canada, Croatia, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Serbia and Montenegro, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

 

At the CHR, opposition to the resolution was swift and powerful.  Ambassador Umer of Pakistan, on behalf of the OIC, sent an aide memoire and letter to all delegations, calling for them to vote against the resolution, calling it politically incorrect, procedurally flawed and substantially contentious and a direct insult to the 1.2 billion Muslims in the world. It was also reported that considerable pressure was exercised by the Vatican, particularly on some Latin American countries.

 

On April 24, 2003, Brazil introduced the resolution, stating that their aim and that of the co-sponsors was not to create new human rights but to build upon the Universal Declaration.  They also stressed respect for religious and cultural differences and referred to the Vienna Conference.

 

The first of many procedural manoeuvres used by opponents of the resolution in the final days of the 59th session, was to call for a ‘no action’ motion, which would have meant that the CHR would not take any action on the resolution and would not even consider debating or voting on the text.  Brazil called for a registered vote on the ‘no action’ motion.  The ‘no-action’ motion was defeated by a very narrow margin, with 24 votes against, 22 votes in favour and 6 abstentions.  The voting results were: 22 Yes (to have no action – Algeria, Bahrain, Burkina Faso, Cameroon, China, DRC, Gabon, India, Kenya, Libya, Malaysia, Pakistan, Saudi Arabia, Senegal, Sierra Leone, Sri Lanka, Sudan, Swaziland, Syria, Togo, Uganda, Zimbabwe); 24 No (to move on – Armenia, Australia, Austria, Belgium, Brazil, Canada, Costa Rica, Croatia, France, Germany, Guatemala, Ireland, Japan, Mexico, Paraguay, Peru, Poland, Korea, Sweden, Ukraine, UK, USA, Uruguay, Venezuela) and 6 abstentions (Argentina, Chile, Cuba, Russian Federation, South Africa, Thailand).

 

Saudi Arabia, Pakistan, Egypt, Libya and Malaysia proposed five amendments to the Brazilian resolution.  The amendments include the removal of the term sexual orientation from the title and body of the text, each time it appears.  There were challenges to whether these five proposals qualify as amendments or whether they represent five new resolutions. Proponents of the resolution quickly characterized the amendments as part of a strategy to ensure that there would not be any substantial discussion on the issue and that the whole process would be delayed long enough to prevent the resolution from going to a vote before the end of the CHR session.

 

Substantial procedural debate took place on the resolution and the amendments.  Najat El Mehdi Al-Hajjaji, the Libyan chairwoman of the Commission subsequently suggested the postponement of the vote to the next day, Friday, April 25, 2003 (the final day of the 59th session of the CHR).  After she gavelled her decision, it was widely challenged.  She then put it to a vote about whether the debate on the amendments and the resolution should be deferred until the next day.  The decision to defer to April 25 was successful.  The 26 countries voting to defer included: Algeria, Bahrain, Burkina Faso, Cameroon, China, Cuba, DRC, Gabon, Indian, Kenya, Libya, Malaysia, Pakistan, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, South Africa, Sri Lanka, Sudan, Swaziland, Syria, Thailand, Togo, Uganda and Zimbabwe.  The 21 members voting against deferral were: Australia, Austria, Belgium, Brazil, Canada, Chile, Croatia, France, Germany, Guatemala, Ireland, Japan, Paraguay, Poland, Korea, Sweden, Ukraine, UK, USA, Uruguay, and Venezuela.  The 6 abstaining members were Argentina, Armenia, Costa Rica, Mexico, Peru and Viet Nam.

 

The next day, April 25, 2003 (the last day of the 59th session), opponents of the resolution continued stalling consideration of the resolution by raising a series of procedural issues.   At several times the Chair was asked to rule immediately to allow for voting on the resolution. This did not happen however.  In the final minutes of the 59th session, at approximately 6:00 p.m., the Chair made a proposal that the CHR postpone consideration of item L92 (the resolution on sexual orientation) and the proposed amendments (L106-110) to the 60th session of the CHR, under the same agenda item.  Canada then took the floor and made a motion that the CHR not be closed, based on the importance of the agenda item to be considered.  Canada’s proposal was that the CHR recommend to ECOSOC (the Economic and Social Council) that there be a resumed session of not more than 2 days to complete the agenda items of the 59th session (this resolution being the only item left).  However, because the Chair's proposal came first, it was voted on first and passed by a vote of 24 in favour, 17 against and 10 abstentions.  There was therefore, no need for consideration of Canada's motion.

 

The 24 CHR members voting in favour of postponement to 2004 were: Algeria, Argentina, Bahrain, Burkina Faso, Cameroon, China, Democratic Republic of the Congo, Gabon, India, Kenya, Malaysia, Pakistan, Saudi Arabia, Senegal, Sierra Leone, Sri Lanka, Sudan, Syria, Thailand, Togo, Uganda, Viet Nam, and Zimbabwe.  The 17 members voting against postponement were: Austria, Belgium, Brazil, Canada, Croatia, France, Germany, Guatemala, Japan, Mexico, Poland, Republic of Korea, Sweden, Ukraine, United Kingdom, Uruguay, and Venezuela.   The 10 members registering abstentions were: Armenia, Australia, Chile, Costa Rica, Ireland, Paraguay, Peru, Russian Federation, South Africa, and United States.

 

So, in the end, opponents of the resolution were not able to defeat the resolution, rather they were able to keep it from being voted on at the UN’s most important human rights body.  Some NGOs and Governments criticized the CHR Chair for showing bias in her handling of the resolution, which allowed the postponement.  Others argue however, that the CHR members themselves, rather than the Chair were responsible for the fate of the resolution.  The question of whether the CHR will affirm the universality of human rights by protecting and promoting of human rights related to sexual orientation remains, and will no doubt be taken up at the 60th session of the CHR, to be held in Geneva from March 15 - April 23, 2004.

 

 

COMMISSION ON HUMAN RIGHTS

Fifty-ninth session

Agenda item 17

 

PROMOTION AND PROTECTION OF HUMAN RIGHTS

 

Austria, Belgium, Brazil, Canada, Czech Republic*, Denmark*, Finland*,

France, Germany, Greece*, Ireland, Italy*, Liechtenstein, Luxembourg*,

Netherlands*, Norway*, Portugal*, Spain*, Sweden and United Kingdom of

Great Britain and Northern Ireland: draft resolution

 

2003/... Human rights and sexual orientation

 

The Commission on Human Rights,

 

Reaffirming the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child,

 

Recalling that recognition of the inherent dignity and of the equal and

inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Reaffirming that the Universal Declaration of Human Rights affirms the

principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that

everyone is entitled to all the rights and freedoms set forth therein without distinction of any kind,

 

Affirming that human rights education is a key to changing attitudes and behaviour and to promoting respect for diversity in societies,

 

1. Expresses deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation;

 

2. Stresses that human rights and fundamental freedoms are the birthright of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation;

 

3. Calls upon all States to promote and protect the human rights of all

persons regardless of their sexual orientation;

 

4. Notes the attention given to human rights violations on the grounds of sexual orientation by the special procedures in their reports to the

Commission on Human Rights, as well as by the treaty monitoring bodies,

and encourages all special procedures of the Commission, within their

mandates, to give due attention to the subject;

 

5. Requests the United Nations High Commissioner for Human Rights to pay due attention to the violation of human rights on the grounds of sexual orientation;

 

6. Decides to continue consideration of the matter at its sixtieth session under the same agenda item.