On 21 December 2010, the General Assembly successfully voted to reinsert a reference to sexual orientation into its biannual resolution on extra-judicial killings, after its Third Committee had shamefully deleted the language from the text in November. (1) This is a crucial victory for human rights, since the resolution on extrajudicial executions is the only UN text where Member States formally acknowledge their responsibility to prevent discrimination on the basis of sexual orientation.

On 21 December 2010, the General Assembly successfully voted to reinsert a reference to sexual orientation into its biannual resolution on extra-judicial killings, after its Third Committee had shamefully deleted the language from the text in November. (1) This is a crucial victory for human rights, since the resolution on extrajudicial executions is the only UN text where Member States formally acknowledge their responsibility to prevent discrimination on the basis of sexual orientation. Following an announcement by the United States on Human Rights Day that it would try to restore the reference when the General Assembly plenary considered the Third Committee draft resolution on 21 December, lesbian, gay, bisexual and transgender (LGBT) and human rights NGOs mobilised around the world to support this effort. This, along with lobby by the US, proved sufficient to rally the UN membership to change its course.

The US amendment, was adopted by a vote of 93 for, 55 against, and 27 abstentions. (2) The United Arab Emirates (on behalf of the Arab group), Benin (on behalf of the African group), Tajikistan (on behalf of the OIC), Zimbabwe, the Sudan, and the Holy See took the floor to express their disapproval of the amendment, while Belgium (on behalf of the EU), Finland (on behalf of the Nordic countries), Canada, Argentina (on behalf of MERCOSUR and Mexico), Colombia, and Timor-Leste expressed their support for it.  In a welcome move, Angola, Cape Verde, Rwanda, and South Africa broke ranks with the African group to also vote for the amendment. The resolution as a whole was then adopted as amended by a vote of 122:1:62.

In the Third Committee, the Western and Latin American States that have consistently advocated for LGBT rights at the UN appeared caught off-guard by a hostile amendment from the African group to the extrajudicial executions resolution. (3) The amendment, which sought to replace the words ‘…any discriminatory reason, including sexual orientation’ with the words‘…discriminatory reasons on any basis’ in one provision, was adopted by a margin of nine votes, with the African group voting as a block supported by the Arab group and the OIC. (4) Consequently, a long-standing paragraph that referred to more than 15 groups that are vulnerable to extrajudicial killings no longer specifically urged States to protect against and investigate killings committed because of discrimination on the basis of sexual orientation. Moreover, the loss of the reference implied that the General Assembly was prepared to turn a blind eye to killings targeting people because of their perceived or actual sexual orientation.

With the restoration of the reference, the General Assembly rectified this terrible message. However the developments during this session only reinforce the fact that the international community has far to travel before it extends international human rights protections to LGBT people.

Death penalty

The General Assembly also took up another contentious issue this year – the death penalty. On this issue the result was also positive. A resolution renewing the General Assembly’s call for a moratorium on the use of the death penalty was adopted by a vote of 109 in favour, 41 against, with 35 abstentions.(5) The resolution also calls on States to respect international standards that safeguard the rights of those facing the death penalty, and to make available information on their use of the death penalty. Indicating that international support for a moratorium continues to increase among States, the resolution, which was the third text on the topic in four years, gained three more votes and received five fewer ‘no’ votes than in 2008. (6) Bhutan, Kiribati, Maldives, Mongolia and Togo were new supporters of the text this year. Comoros, Nigeria, Solomon Islands and Thailand changed from voting no in 2008 to abstaining in this year’s vote.

The process to achieve adoption of the resolution was less acrimonious than in recent years. This is because retentionist States, who failed to ‘kill’ the death penalty resolution in 2007, now reluctantly accept the issue as staple of the General Assembly’s work. This year, detractors instead focused on weakening the text by proposing four hostile amendments in the Third Committee, including three written amendments (proposed by Egypt, Botswana, Singapore) and one oral amendment (Bahamas). (7) Egypt’s amendment sought to insert references to specific Charter articles on State sovereignty and international cooperation, despite the fact that the resolution already references the Charter  in one of its preambular provisions.  Singapore’s amendment sought to insert a reference to reaffirming the sovereignty of States to develop their own legal systems and determine their own penalties.  This view holds that the death penalty is not a human rights issue, but a question for national criminal justice systems. Botswana’s amendment sought to insert a provision that recognised that many States “retain the death penalty on their statutes for the most serious crimes”. The amendment from Bahamas tried to limit the language of the resolution to ‘considering’ establishing a moratorium, a phrasing which would likely weaken implementation by States.  However all amendments were voted on and defeated.  (8)

To demonstrate that the resolution enjoyed wide cross-regional support, supporters created a diverse 10-member ‘task-force’ to facilitate the text’s passage through informal negotiations.(9) The task force, which by all accounts was inclusive and undertook wide consultations, focused on increasing and broadening support for the resolution rather than pushing for acceptance of  provocative new elements, especially those that might deter key African and/or other from co-sponsorship.

This strategy came at a cost. For example though the resolution includes a new provision on States’ reporting on the use of the death penalty in relation to national debates (OP3(b)), the Russian Federation, along with other States, leveraged their co-sponsorship to insist on phrasing that was weaker than some co-sponsors and NGOs preferred.  Consequently the provision does not specifically list what kind of information that States should make public (as based on a 1989 ECOSOC resolution on the protection of safeguards in relation to the death penalty), nor does it call on States to provide the information to the Secretary General. (10) Instead States are vaguely asked “to make available relevant information” on the use of the death penalty “to contribute to national debates on the issue”. A provision from the 2007 death penalty resolution, which highlighted the General Assembly’s “deep concern about the continued application of the death penalty”, was also regrettably removed this year. (11)

Given the resolution is biannual, the General Assembly will not formally consider the death penalty again until 2012. However supportive States, NGOs and the OHCHR may hold a side event in 2011 to continue to raise awareness about and maintain momentum for the call for a global moratorium on executions.

Country-specific resolutions

The General Assembly also adopted two country-specific texts. The vote on the DPRK resolution was 106 in favour, 20 against, with 57 abstaining, and on Iran was 78 in favour to 45 against, with 59 abstentions. The text on Myanmar, which was adopted by vote in the Third Committee, was deferred pending review of its programme budget implications by the Fifth Committee. (12) The resolution has costs associated with political missions and good offices.

Despite ‘in principle’ objections raised by the Non-Aligned Movement (NAM) and others (Brazil, China, Russian Federation) in the Third Committee to any country specific resolutions in either New York or Geneva, States ultimately voted this year in favour of stronger country resolutions. In fact, some NAM members chose to put the group’s policy to one side and either vote in support of one or more of the resolutions, or abstain.

In the case of the DPRK, this deviation from the NAM policy was most likely due to a combination of the Government’s rejection of all 161 recommendations provided at its UPR session, along with its long-standing refusal to cooperate with the UN human rights system. The DPRK’s failure to return abducted Japanese citizens also prompted some States to support the resolution. (13)

In the case of Iran, the motivation behind States’ voting pattern was more complicated, but it was adopted by a wider margin than in recent years, even though the text was significantly strengthened. The increase in support for the text on Iran was not widely anticipated, (14) nor was the embarrassing margin of defeat that Iran’s no-action motion suffered in the Third Committee.(15) Canada’s decision to err on the side of caution with the content of the text meant it did not take up the recommendation of several human rights organisations to establish a follow-up mechanism on Iran. It also omitted any reference to the official visit to Iran by the High Commissioner for Human Rights, which she vowed to undertake in 2011. (16) Instead, the resolution presents a range of measures that will heighten the level of scrutiny of the human rights situation in Iran over the coming year by both the General Assembly and the Human Rights Council. Key among these is the request that the Secretary-General submit an interim report to the 16th session of the Human Rights Council (March 2011), which is yet to address the situation in Iran. The Secretary-General’s annual report to the next General Assembly on the same matter should include ‘options and recommendations to improve’ the implementation of the resolution, thereby leaving the door open for the Secretary-General to suggest an appropriate follow-up mechanism.

Combating defamation of religion

The General Assembly also adopted the divisive ‘defamation of religion’ resolution by a vote of 79 in favour to 67 against, with 40 abstentions. (17) The resolution, tabled by Morocco on behalf of the Organization of the Islamic Conference (OIC),Venezuela and Belarus, passed by only twelve votes (compared to a margin of 19 votes in 2009) indicating that the international community’s support for the resolution, and the concept of ‘defamation of religion’, continues to decline.

In 2009, a similar text was adopted by 80-61, with 42 abstentions. Following the lead of other GRULAC members (Mexico, Chile, Panama, and Uruguay), who voted in the General Assembly against the resolution for the first time in 2009, Argentina this year switched its vote from abstain to ‘no’.  The Bahamas, Barbados, Fiji, Solomon Islands, and Zambia also all voted against the text for the first time this year.  Bhutan, Congo, Democratic Republic of Congo, Dominica, Togo, who switched from a ‘yes’ vote in the General Assembly in 2009 to an abstention this year at the Third Committee, also helped to continue the momentum against endorsement of the ‘defamation of religions’ concept.

The resolution contained some cosmetic changes compared to last year’s text, including the replacement of ‘defamation of religions’ with ‘vilification of religions’ in most of the text. However these, and other, supposed concessions made by the sponsors were inadequate to dispel most States’ multiple concerns with the resolution’s language.

It is not clear how the steady erosion of support for combating ‘defamation of religion’ at the General Assembly will affect the OIC’s strategy at upcoming meetings, including at the next Ad Hoc Committee on Complementary Standards (postponed from November 2010 to early 2011) and at the Council in March 2011, when the OIC is expected to table another resolution on the subject.  Certainly though the new developments create renewed momentum for human rights NGOs and supportive States to build on in their efforts to fight ‘defamation of religion’ and ensure enjoyment by all of established freedoms including freedom of expression and freedom of religion.

Human Rights Council

The Human Rights Council report as a whole was adopted by the General Assembly by a vote of 123 in favour, to 1 against (Israel), with 55 abstentions. (18)

The process for adoption of the Council’s report followed a similar complicated path to last year. The Third Committee was asked to consider numerous recommendations from the Council that required action, and the plenary of the General Assembly dealt with the report as a whole.(19)  In the Third Committee some recommendations were addressed individually in separate resolutions,(20) in addition to a general resolution sponsored by the African group that ‘acknowledged’ of all of the recommendations.(21) The EU objected to this approach on procedural grounds. It argued States should be given an opportunity to present their views on each of the Council’s recommendations, and the Third Committee should not comment on the report as a whole. Together with other delegations, the EU reiterated its objection to the Council’s report being taken up in the Third Committee, rather than the plenary of the General Assembly.(22)

At the request of Israel, the general resolution on the Council’s report was put to a vote in the Third Committee. Israel objected to being unfairly targeted by the Council and accused of serious human rights violations. Although Israel did not refer to it directly, Morocco (on behalf of the OIC) and Turkey drew attention to the Council’s recommendation that the General Assembly consider the report of the fact-finding mission that investigated Israel’s attacks on the so-called Turkish flotilla.(23) As a staunch ally of Israel, this resolution placed the US in a difficult position. The US explained that as a member of the Council, it had been proud to support a number of its resolutions over the past year. However, there were a number of resolutions which unfairly singled out Israel and excluded violations by Hamas, which it could not support. Together with the EU and some Latin American States, the US abstained.

The General Assembly also adopted numerous other resolutions recommended by its Third Committee, including on the rights of the child, violence against women, the elimination of religious intolerance and discrimination based on religion and belief, counter terrorism and human rights, and torture.  In addition to the deferral of the Myanmar draft resolution, action on a draft resolution relating to follow up to the Durban Conference was also postponed pending the Fifth Committee’s review of that resolution’s budget implications. These costs relate to the organisation of a General Assembly high-level event to celebrate the 10^th anniversary of Durban in 2011.

An analytical article covering this year’s General Assembly Third Committee session will be available in the January 2011 edition of the Human Rights Monitor Quarterly.

(1)               A/C.3/65/L.29/Rev.1. The draft resolution is available at http://bit.ly/eXnKM3

(2)               A/65/L.53 The US amendment sought to insert the words “or because of their sexual orientation” after the words “linguistic minorities” into OP6(b) of resolution A/C.3/65/L.29/Rev.1.

(3)               The African group amendment is contained in A/C.3/65/L.65. It intended to change the language in OP6(b)

(4)               The vote was 79 in favour, 70 against, 17 abstentions. For more information, see ISHR’s news story at http://bit.ly/bUmvRR In 2008, Uganda (on behalf of the OIC) proposed a very similar amendment to the resolution, which was put to a vote in the Third Committee and defeated: 59:77:25.

(5)               A/C.3/65/L. 23/Rev.1 . The draft resolution is available at http://bit.ly/eXnKM3

(6)               The vote in 2008  was 106-46-34

(7)               See A/C.3/65/L.61, A/C.3/65/L.62, A/C.3/65/L.63, available at http://bit.ly/eXnKM3

(8)                Voting sheets available at http://www.un.org/en/ga/third/65/votingsheets.shtml

(9)               The task force consisted of Angola, Burundi, EU, Croatia, New Zealand, Timor-Leste, Micronesia, Chile, Argentina, Norway.

(10)            In one of the first drafts (A/C.3/65/L.23) available at http://bit.ly/eXnKM3 the relevant provision calls on States to provide the following information: the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted upon appeal and the number of instances in which clemency had been granted. This list was based on language in ECOSOC Resolution 1989/64  “Implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty”

(11)           General Assembly Resolution 62/149 (OP1)

(12)           All country-specific draft resolutions are available at http://bit.ly/eXnKM3

(13)           Benin, a NAM member, voted in favour of the resolution to show solidarity to Japan. In the Third Committee, it explained this was the first time it ever supported a country resolution. Brazil also cited the DPRK’s record on abductions as a factor in its ‘yes’ vote. Benin and Brazil both abstained from the votes on Iran.

(14)           The GA plenary vote on Iran in 2009 was 74:49:59.

(15)           The vote on the no-action motion this year was lost by 40 votes: 51:91:32. The no-action motion was said to be a last-minute decision by the high-level delegation from Tehran that came to lobby against the resolution. Iran last ran a no-action motion in 2008, which it lost by ten votes (70:81:28), and in 2007 its no-action motion was lost by only one vote (78:79:24).

(16)           The High Commissioner made this announcement in April 2010 when she expressed concern about Iran’s violent response to protesters during and after the 2009 presidential elections. See http://reut.rs/ei3Fnh

(17)           A/C.3/65/L.46 The draft resolution is available at http://bit.ly/eXnKM3

(18)           Last year, the report of the Human Rights Council was adopted by consensus.

(19)           The annual report to the GA comprised of the reports of the 12-15^th sessions of the Council, and the report of the 13^th special session (A/65/53 and A/65/53/Add.1). The seven recommendations and requests were contained in Resolutions 15/1 (follow-up to fact-finding mission on the humanitarian flotilla); 15/7 (expansion of indigenous Voluntary Fund); 15/10 (leprosy); 15/18 (20^th anniversary of working group on arbitrary detention); 15/21 (new Special Rapporteur on rights to freedom of assembly and association); 15/23 (new working group on discrimination against women in law and practice); 15/26 (working group to consider an international regulatory framework for private military and security companies).The latter four of these resolutions contained programme budget implications.

(20)           Japan ensured that the principles and guidelines for the elimination of discrimination against persons affected by leprosy were endorsed in a separate resolution that was adopted by consensus (A/C.3/65/L.37). El Salvador and Argentina did likewise to ensure that there will now be international days for the right to truth concerning gross human rights violations, and for the victims of enforced disappearance, respectively (A/C.3/65/L.59 and L.30).

(21)           A/C.3/65/L.57.

(22)           Norway (on behalf of Iceland, Liechtenstein, New Zealand, Switzerland), Canada, Costa Rica, Mexico.

(23)           The report concluded Israel violated international humanitarian law and human rights law and that its blockade of Gaza was illegal. More information is available from ISHR’s news story at http://bit.ly/f9n7mg