(Guest blogger, Durham Law School, Durham University)
On the 16th November 2010, the General Assembly Third Committee amended the Resolution on extrajudicial, summary or arbitrary executions. The amendment removed a specific reference to discrimination on the basis of sexual orientation from paragraph 6(b) and replaced it with the phrase, “discriminatory reasons on any basis”. The original phrase had been part of the resolution for more than a decade and its removal has sparked headlines such as, “United Nations Greenlights Gay Executions” and “UN General Assembly votes to allow gays to be executed without Cause”. Whilst shocking at first glance, this post will examine what impact this amendment will really have on UN action in the area of LGB rights.
The amendment was jointly proposed by the Africa Group, the Arab Group and the Organisation of the Islamic Conference. It was adopted by a vote of 79 in favour, 70 against, 17 abstentions and 26 absentees. The narrow margin determining this outcome is indicative of the precarious position of LGB rights within international law. This vote neither lends itself to reaffirm nor deny the existence of the right to be free from discrimination on the basis of sexual orientation. This is compounded by the fact that, whilst the amendment runs contrary to other statements by the General Assembly and the UN High Commissioner for Human Rights, the amended resolution was then adopted by a vote of 165 in favour, none against, 10 abstentions and 17 absentees. Given this context, what is the actual impact of this amendment?
UN Action in Preventing LGB Executions
Since the reference was introduced in 1999 there has been little liberalisation of anti-LGB policies. Very few states have decriminalised homosexuality and no change has occurred in countries where homosexuality is a capital offence. There is even less evidence to suggest that the liberalisation which has occurred is a direct result of UN action. The most significant evidence of UN action on this issue concerns the Ugandan Anti-Homosexuality Bill. In 2009 MP David Bahati introduced a Private Members Bill which, inter alia, made homosexuality a capital offence. The Bill was subjected to a Cabinet Committee investigation after President Museveni came under international pressure to prevent it becoming law. The United Nations was just one voice amongst many in condemning this Bill. We can deduce that the amendment will have a limited impact primarily because UN action in this area is already restricted. However, the symbolic impact of this amendment is more problematic.
The Importance of Normative Messages
Prior to amendment, this resolution was the only UN text where member states formally acknowledged their responsibility to prevent discrimination on the basis of sexual orientation. The reference was introduced, along with 15 other groups, because of the vulnerability of these groups cited in the reports of the relevant Special Rapporteur. Furthermore, since 1999 mandate-holders have continuously raised the issue in reports, statements and urgent appeals to other states. This reference is essential to the conception of the LGB community as a vulnerable group that both needs and deserves protection under international law. Whilst the amendment appears to assume a wider scope, it is important to note that it did not remove specific references to other vulnerable groups. Therefore, the amendment infers that the UN no longer views the LGB community, at least comparatively, as a sufficiently vulnerable or deserving population. Firstly, this message implies that there is no requirement to provide special protection to the LGB community. Secondly, without this specific reference, the ability of mandate-holders and member states to place pressure on countries that discriminate on the basis of sexual orientation is drastically inhibited.
The state of LGB rights in international law has been, and is in, a precarious position. Whilst the amendment makes little difference to the limited ability of the UN to take direct action, it does restrict the ability of the UN to place pressure on states that discriminate on the basis of sexual orientation. Sadly, the amendment demonstrates the impotence of the UN as a vehicle for protecting the LGB community.