We are delighted to welcome this guest post from Aengus Carroll, who recently completed the LLM in International Human Rights Law and Public Policy at UCC. Aengus’s LLM dissertation examined sexual orientation and gender identity rights claims and advocacy through the Universal Periodic Review mechanism.
‘A voice for sexual orientation and gender identity in the Universal Periodic Review’ (edited extract from 2013 UCC LL.M dissertation by firstname.lastname@example.org)
Perhaps one of the central problems at the UN Human Rights Council (HRC) in regards to establishing a cognisable norm around sexual orientation and gender identity (SOGI), a subject that resonates so many deeply-held cultural and personal values, is the modus operandi through which these considerations are happening. Regional groups (cross cut by organisation membership, such as the 57-State Organisation of Islamic Cooperation) make politicised and recalcitrant statements regarding human rights in dialogues and Resolutions that are then voted on, rather than having the space for expansive or explorative dialogue for what are genuine concerns to be aired in anything other than polarised terms.
The Universal Periodic Review process, completed its first four and a half year cycle in 2012. Its dialogic structure seems to facilitate an expansive understanding of the multiple perspectives existing in any one State on human rights issues, and how they intersect or relate to each other. Although the UPR is a State-centric process, engagement in the process by civil society organisations, brings to the fore uniquely situated perspectives on how cultural values interact with diversity, including diversity in gender identity and sexual orientation. The preparation for, and follow on from, the act of articulating such perspectives in the UPR reporting cycle, builds capacity for civil society organisations (CSOs), including NGOs. The process can, and frequently does, open human rights defenders and particular minorities to considerable risk, often State-sponsored and citizen-led.
The UPR enhances a potential already long realized by SOGI advocates with UN mechanisms: use the international space as an amplifier to get their issues heard at their own national levels. The UPR process acts as a ‘loudspeaker’ for CSOs’ reports and data that expose how, in the case of SOGI, the over-arching issues of discrimination and criminalisation lead to violations of positive and negative obligations under IHRL in domestic settings regarding LGBT people.
Through the UPR process, ‘action level’ categories have been designed that are indicated by the type of primary action verb used by the Recommending State (hereafter RS). These can be divided into five types, ranked on a scale from 1 (minimal action), 2 (continue doing), 3 ((to consider), 4 (general action) to 5 (specific action). The verb used defines whether the SuR is requested only to ‘consider’ the action or to complete it. In his recent analysis of the HRC, Rathberger notes that amongst all the recommendations issued through the first cycle of the UPR (sessions 1-12), the more specific or action-oriented the recommendations the lower the acceptance rate.Further, he notes that explicit or outright rejections of recommendations tended not to be articulated, reluctance being coded in such terms as “taking note of recommendations” or other general responses.
However, this conciliatory or diplomatic approach appears to apply to SOGI much less often, the subject of which has frequently elicited strong and unambiguous rejection from African (AF) and Asian & Pacific (AS-PAC) bloc States particularly, in all action categories. Their responses to recommendations reflect issues of sovereignty and tradition, most often in terms of protecting public morality. The overall acceptance rate for all recommendations in the first cycle of the UPR was 73% according to Schlanbusch, however acceptance of the recommendations related to recognition of SOGI-related human rights was only 36%.
From a total of 21,353 recommendations to all States in the first cycle, only 493 (2.3%) referred to sexual orientation and gender identity (across the five action types). The UPR-info database shows that of these 179 (36%) were ‘accepted’ – 18 by the African group, 29 by the Asian & Pacific group, 60 by the Eastern European Group; (EEG) group, 36 (by the Latin American and Caribbean Group (GRULAC) and 36 by the Western European and Others Group (WEOG) group. These 493 recommendations were issued by only 39 States in total. Schlanbusch points out that 76% of these came from 22 (of 28) WEOG States, 16% from two EEG States (Slovenia and the Czech Republic), 8% from six GRULAC States, and none from the African bloc. The only one that came from the AS+PAC bloc (Bangladesh), demonstrated a particularly novel (and ominous) use of the UPR by recommending denial of human rights by recommending that Tonga’s criminal laws regarding “consensual same sex” remain as it is “outside the purvue of human rights norms”!
The UPR-info database shows 314 (63.5%) of those recommendations that elicited negative response regarding SOGI (where no meaningful action might be expected) were either ‘rejected’, given a ‘general response’ or received ‘no response’ at all. Of these, Africa outright rejected 107 recommendations (34% of all those rejected) with negligible responses to a further 23 (8%). While at the other extreme, the Western European and Others Group (WEOG) only rejected 15, with negligible response to a further 5. African countries account for around half of the world’s criminalising States, and as described here, account for almost half (42%) of the world’s total UPR rejections of recommendations regarding SOGI. Of those 314 responses that can be read as negative, 223 are outright rejections and 91 responses comprise general responses or no comment at all. Each one of these negative responses can be seen as a statement of how a State’s understanding of how traditional and cultural values on what they consider to be ‘sensitive’ issues “trump” (to reverse Dworkin’s thesis) human rights obligations as interpreted in the body of IHRL. Regarding the question of what evidence is there of the actual effect of the UPR on national legislations, 7% of States (five countries; Seychelles; Nauru, Palau, Solomon Islands, Sao Tomé & Principe) accepted Action level 5 recommendations (take specific action) to decriminalise sexual orientation in the first cycle of the UPR. However, the actual implementation of such commitments remains to be seen. The issue of follow-up is currently a central weakness of the mechanism – although encouraged, States are not obliged to deliver mid-term assessments or develop other tracking mechanisms with indigenous CSOs between UPR cycles (such as that recently developed in India). However, the process is proving to provide an essential opportunity for CSOs to bring some scrutiny on how their intersectional priorities are addressed by their States. The process is also helping to clarify deeper questions around the limits of the reach of human rights that are perceived to clash with cultural or traditional values, in places such as Russia, Cameroon or Uganda.
 An extensive and interesting list of verb under each level are supplied in the link above.
 Of the outright rejections, 70 (65%) were in action level 5, (22%) at action level 4, 13 (12%) at level 3, and none at either action levels 2 or 1.