In November the UN General Assembly must decide whether to approve a controversial new UN post to enforce special new rights based on the sexual preference and behavior of individuals who identify as lesbian, gay, bisexual, and transgender (LGBT).
Literally paving the way to the opening of this year’s debate, a crosswalk traversing 1st Avenue from the US mission to UN headquarters was painted with a rainbow flag so that world leaders would have to tread it on their way to the UN headquarters last week for the opening of this year’s General Assembly.
The Human Rights Council established this unprecedented mandate of “independent expert on violence and discrimination on the basis of sexual orientation and gender identity” through a resolution that narrowly passed this June.
The mandate has already escalated the tension within the United Nations over the promotion of LGBT rights at the UN and is expected to be challenged.
“You may not know how much I have been criticized by and am fighting with member states (over LGBT rights),” said outgoing Secretary General Ban Ki moon as he lauded the “hard-won victory” at the Council during an event touted as the highest level LGBT event ever held at UN headquarters.
The African Group, which normally introduces the work of the Geneva body in the General Assembly, has the opportunity to bracket the highly contested resolution and prevent the establishment of the mandate, but there are several hurdles to achieving this.
The United States and European and Nordic countries that direct millions of dollars each year to Africa through the UN system and bilateral assistance have been pressuring African countries to avoid blocking the mandate, arguing that the African Group cannot contest the action of the Human Rights Council.
If the resolution is bracketed countries that oppose the new mandate will likely argue the General Assembly has the authority through the UN Charter to review the decisions of lower UN bodies. This argument may find wide support.
The Human Rights Council, composed of only 47 out of 193 UN member states, is a subordinate body of the General Assembly and the UN Charter gives the General Assembly authority to deal with “any matter” involving the organization.
There are legitimate concerns about the legal basis for the mandate.
No UN treaty mentions sexual orientation or gender identity or can be fairly interpreted to include them, as the Family Articles, the official platform of the NGO alliance Civil Society for the Family state.
There is precedent in the work of the General Assembly to halt a resolution of the Human Rights Council. It occurred in the case of a resolution on reprisals when the council attempted to create a controversial new UN mandate in 2014. The same arguments that the mandate is too vague and not well founded in international law were used against the 2014 mandate and are applicable in the current case. Experts point out that the substantive concerns underlying action in 2014 are similar to the current case since they both called for a focal point in the UN system for a particular issue.