“The decision facing us today is a decision on the relationship between the Council and the UN General Assembly.” — Delegation of Singapore to the UN
On Monday 21st November, towards the end of a particularly eventful session of the Third Committee of the General Assembly (see related URG blog), UN member States took the historically important decision to respect the institutional integrity and output of the Human Rights Council. What became a struggle over the prerogatives of the Council and raised question marks over the body’s place in the overall UN architecture, emerged as a consequence of deep value-based differences between States, specifically over the rights of Lesbian, Gay, Bisexual and Transgender (LGBT) persons.
The Council’s sometimes-uneasy relationship with the Third Committee of the GA is, in many ways, a consequence of ‘unfinished business’ from the time of the Council’s creation in 2006. While establishing the Council to be the UN’s primary political body responsible for the promotion and protection of human rights, the GA decided that the new entity would not be a main body of the UN (on a par with the Security Council and the ECOSOC) but would rather be a subsidiary body of the GA. Since that time, this has led to deep differences of opinion, between States, as to the exact contours of the Council’s mandate and powers, and the corresponding role of the Third Committee.
For most of the lifetime of the Council, those differences and tensions have bubbled close to the surface, evident in, for example, in the fact that since 2006, only two of the ten Third Committee resolutions ‘taking note’ of the Council’s annual report (2009 and 2011) have been adopted without a vote; or in the Third Committee’s tendency to adopt its own human rights resolutions, in many cases (20%) with very similar content (i.e. significant substantive overlap) to corresponding Council texts, or even, in 7% of cases, functionally identical (copy and pastes) to ‘Geneva’ resolutions.
But occasionally, tension bursts into the open. The most well known example of that is the Third Committee’s 2013 decision to ‘reopen’ the Council’s annual report to the GA and defer consideration of Council resolution 24/24 on ‘reprisals.’ Three years later, the exact status of resolution 24/24, and the legal question of whether the text is ‘implementable’ or not, remain unclear.
Arguments during the 2016 session of the Third Committee followed a similar pattern to this 2013 dispute. A number of developing States, especially from Africa and the Organization of Islamic Cooperation (OIC) were unhappy with the Council’s decision in June to adopt a resolution (HRC 32/2) creating a new Special Procedures mandate on protection against violence and discrimination based on sexual orientation and gender identity. According to these States, the Council’s decision lacked a legal basis, because the rights of LGBT persons are not mentioned in the International Bill of Rights and there is no agreed definition of sexual orientation and identity. (It is worth pointing out that, if this were taken as the basic criteria indicating the ‘legality’ of UN human rights texts, then the number of Council resolutions would likely drop by about a half). Some developing countries, especially those that have never held a seat on the 47 member Council or that do not have a permanent mission in Geneva, also felt that they their concerns about HRC 32/2 had been ignored, (in this regard, they pointed out – as they had in 2013 – that the Council only has 47 members, while the GA enjoys ‘universal membership.’)
Consequently, when Botswana, on behalf of the African Group, tabled its annual draft resolution at the Third Committee ‘taking note’ of the Council’s annual report for 2016, it included an extra paragraph proposing to defer consideration of resolution 32/2 to ‘allow time for further consultations to determine the legal basis upon which the mandate of the special procedure established therein will be defined.’
Notwithstanding value-based arguments over the merit or ‘legality’ of resolution 32/2, the move by Botswana, on behalf of the African Group, to ‘reopen’ the Council’s work and second-guess its decisions, raised serious questions about the prerogatives of the UN’s main human rights body. If the Third Committee was to again, as it had in 2013, simply block Council texts that some member States disliked, then it would raise the question: what is the point of having a Human Rights Council at all? In that regard, it is particularly disappointing that this initiative came from the African Group, the regional group that played the principal formative role in the establishment of the Council in 2005-2006.
In response of the African draft, Brazil — on behalf of a number of Latin American countries — called on member States to reject the proposal; asserting that ‘it is not within the Third Committee’s purview to reopen the Council’s annual report’ and that the Committee would undermine the Council’s authority if it interfered with the body’s prerogative to take decisions on matters relating to human rights. These States therefore tabled an amendment to the African text, deleting the paragraph calling for a deferment of consideration of the SOGI mandate.
Several other delegations agreed, arguing that the Council’s June 2016 debate on the establishment of the SOGI mandate provided an opportunity for States to air their opinions and/or objections. Any decision to undo or defer the outcome of those deliberations would set a dangerous precedent, critically undermining the Council’s mandate and functioning.
Although the original motivation for the African draft text was a grievance over the substantive content of resolution 32/2, the wider institutional significance of the issue was not lost on State representations in either Geneva or New York. As one New York delegation aptly put it, the Committee’s decision on the resolution to adopt the Council’s report was, in effect, ‘a decision on the relationship between the Council and the UN General Assembly.’
Fortunately, after multiple delays in taking action on the African draft (as proponents and opponents fought to secure votes) member States in the Third Committee adopted the amendment by Brazil on behalf of a group of States, by a (very close) margin of 84 in favour, 77 against, and 17 abstentions. The resolution, so amended, taking note of the Council’s report was then adopted by 94 in favour, 3 against (Belarus, Israel, Mauritius) and 80 abstentions. (The high number of abstentions – especially from members of the Western Europe and Others Group – reflects the long-held position of these States that the Third Committee does not, in any case, need to pass a resolution taking note of the Council’s report. That report should be sent to the Third Committee for information purposes only, with the adoption of a ‘welcoming’ resolution left to the General Assembly plenary).
With this important vote, the Third Committee reaffirmed the Council’s independence and prerogatives, including its mandate to establish Special Procedures. Taken together with the Third Committee’s earlier decision to (see URG blog) to reaffirm the UN’s mandate to address country-specific human rights violations, the result represents a much-needed fillip to the UN’s human rights pillar and its vital role in setting and pressing for the fulfilment of universal human rights norms. Notwithstanding, the risk remains that States in the Third Committee might one day again attempt to reopen the Council’s work and output. That risk will only be fully removed if the General Assembly decides to elevate the Council to become of a main body of the UN. A review on that very issue is due to start in 2021.
 Argentina, Chile, Colombia, Costa Rica, El Salvador, Mexico, Uruguay
Featured Image: Stu Rapley, ‘United Nations General Assembly: Panovision,’ 18 October 2012, licensed under CC BY-NC-ND 2.0.