Quality of the SOGIESC recommendations

UPR recommendations should be SMART. More than 80 UN member states have committed themselves to make SMART recommendations in order to have greater potential for effective implementation and impact on the ground.⁶²

UPR Info classifies the recommendations in five different types of actions, based on the action verb⁶³ used by states:

1. minimal action;⁶⁴ 2. continuing action;⁶⁵ 3. considering action;⁶⁶ 4. general action;⁶⁷ and 5. specific action.⁶⁸

Following the UPR Info classification, one third of all UPR recommendations qualify as specific (type 5). The number of specific SOGIESC-related recommendations is much higher, at 55 per cent. This means that regardless of the relatively poor levels of implementation,⁶⁹ more than half of them are possible to measure, implement and follow up. Unfortunately, according to the survey 45 per cent of the respondents have noted that their government has taken no action to implement SOGIESC recommendations.

The classification of the recommendations by CTAs made in preparation for this report confirms and refines this overview.

62 Joint Statement on the Universal Periodic Review (2013). Item 6, General Debate. Human Rights Council, session 22.

63 An action verb refers to the verb indicating the main action recommended to the state under review: eg, ensure that rights of LGBTI persons are respected or consider the revision of the law.

64 Example of an action 1 recommendation: UK recommended Sweden to ‘[s]hare national best practice and policies on ensuring non-discrimination, including proposals such as to include sexual orientations in the Constitution, with states and relevant international organisations’.

65 Example of an action 2 recommendation: Thailand recommended Guyana to ‘[c]ontinue its effort in eliminating discrimination against LGBT [persons] starting with the review of its legislation’.

66 Example of an action 3 recommendation: Mexico recommended Malawi to ‘[c]ompletely overhaul the legal system to ensure the compliance of the Constitution and all other domestic legislation with international human rights obligations and standards and, in this regard, amend and/or derogate all legal provisions, including customary law, which result in discrimination, especially on the basis of sexual orientation’.

67 Example of an action 4 recommendation: the Netherlands recommended Romania to ‘[a]dopt appropriate measures to counter

discrimination of LGBT people and to develop policies in order to integrate existing legislation against discrimination at various societal levels in Romania’.

68 Example of an action 5 recommendation: Colombia recommended Belize to ‘[a]djust immigration laws to international standards to which Belize is a party, to avoid discrimination against vulnerable groups in particular persons with cognitive disabilities and LGBT’.

69 See Chapter 5.

Table 2: top 10 CTAs at the UPR

Call to action (CTA) No of CTAs

Decriminalising consensual same-sex relationships (specific recommendation) 294

Adopting measures preventing non-discrimination and/or violence against LGBTI persons (general recommendation) 172 Adopting anti-discrimination law protecting LGBTI persons (specific recommendation) 211 Abrogating, repealing or reviewing discriminating/restrictive laws against LGBTI persons (general recommendation) 158 Adopting awareness-raising and education measures on LGBTI persons and SOGIESC issues (general recommendation) 54 Investigating and prosecuting authors of crimes committed against LGBTI persons 68 Adopting hate crime or hate speech legislation/legislative measures to guarantee the security of LGBTI persons (specific recommendation)

47

Adopting laws in order to address discrimination and violence against LGBTI persons (specific recommendation) 38 Training of law enforcement officers and/or judicial officers on LGBTI persons on SOGIESC issues 36 Strengthening recognition and implementation of international instruments protecting the rights of LGBTI persons

and/or related to SOGIESC (specific recommendation)

27

For a general overview, the recommendations that have been made during both cycles have produced:

• General recommendations: 468 CTAs addressed in general terms the universal enjoyment of human rights, equality and non-discrimination and protection from violence for the protection of LGBTI persons. Among the wide spectrum of recommendations addressing violence against LGBTI persons, recommending states have, for instance, called upon the state under review to

‘strengthen protection for LGBT persons’, or ‘combat discrimination or violence based on sexual orientation and gender identity’. Also, in general terms, states under review were recommended inter alia to investigate and prosecute the authors of crimes committed against LGBTI persons (68 CTAs) or ‘take steps’, ‘strengthen’ and ‘adopt norms’ to bolster freedom of association and expression of LGBTI persons (39 CTAs).These recommendations did not propose any specific measures to combat discrimination, ensure equal treatment or prevent violence against LGBTI persons. Such recommendations are not SMART and are difficult to implement and monitor.

• Robust and SMART recommendations: more than one third of the CTAs addressed a specific action. For instance, specific recommendations have been made to ‘amend the Criminal Code to explicitly prohibit incitement to hatred, violence or discrimination against persons on the basis of sexual orientation and gender identity’ (Ireland to Cyprus); or ‘adopt an anti-discrimination law that would ensure equal treatment and non-discrimination on any grounds, including sexual orientation and gender identity’ (Slovenia to Poland).

• Another example is recommendations that are country-specific; eg, ‘Ensure the safety [of the LGBTI persons] during public events such as the Belgrade Parade’ (Austria to Serbia);

‘Facilitate the registration and activities of NGOs specialised in issues of sexual orientation and gender identity’ (Spain to Mozambique). Such relevant and specific recommendations are useful for civil society to make the state accountable and improve the specific human rights situation in the country.

• The recommendations on economic and social rights – despite being very few – addressed a number of economic and social challenges faced by LGBTI persons, such as the right to ensure non-discrimination in access to employment (nine CTAs); ensure protection in the workplace (one CTA); ensure non-discrimination in access to adequate housing and prevent forced evictions, as well as the threat of forced evictions, on the basis of sexual orientation and gender identity (five CTAs).

Table 3: examples of links between the Yogyakarta Principles and the UPR recommendations

Principle 17: Right to the highest attainable standard of health

Principle 10: Right to freedom from torture and cruel, inhuman or degrading treatment or punishment

Principle 24: Right to security

• ‘Take all necessary measures to ensure enjoyment to the highest attainable standard of health, without discrimination on the basis of sexual orientation or gender identity.’ Portugal to Swaziland

• ‘Treat equally same-sex relationships with opposite-sex relationships, including the right to equal consideration for adoption and access to reproductive medicine.’ The Netherlands to Austria

• ‘Ensure, in accordance with articles 5 and 7 of the ICCPR [International Covenant on Civil and Political Rights], freedom from torture, while in detention, for all, regardless also of sexual orientation.’

Denmark to Iran

• ‘Launch an awareness raising programme on protection of enjoyment of human rights by persons of minority sexual orientation and gender identity for law enforcement personnel as part of a wider comprehensive campaign to prevent and punish any acts of ill-treatment in detention against persons perceived as belonging to these groups.’ Czech Republic to Romania

• ‘Amend the Criminal Law to recognize hate speech against lesbian, gay, bisexual and transgender persons.’ Norway to Latvia

• ‘Implement policies and programs that promote tolerance and non-discrimination against LGBTI persons and to guarantee the compliance with the current norms in order to punish offences and violence motivated by prejudices.’

Uruguay to Honduras

A^ddressinGThe ‘^whAT’ ^AndThe ‘^how’

Notwithstanding a very limited number of recommendations that can be implemented directly;

for example, ‘free all persons imprisoned on the grounds of their sexual orientation’,⁷⁰ most recommendations will leave a greater or lesser margin of appreciation to the state under review in the implementation of these principles. In the case of the SOGIESC recommendations, it is noticeable that a great number of the UPR recommendations do suggest a specific type of action.

Recommending states have thus referred primarily to law reform. To a lesser extent, they have called for the state under review to adopt awareness-raising campaigns or training programmes or develop a social dialogue (133 CTAs). Sporadically, states have recommended collecting data on abuses;

establishing a monitoring mechanism for violations against LGBTI persons; or allocating financial resources in investigation authorities. Such implementation and monitoring measures are likely to foster the realisation of the rights on the ground, for example, ‘Adopt comprehensive law on non-discrimination based on international human rights standards, including gender identity and expression, and sexual orientation, which would enhance and specify the protection provided in article 321 of the Penal Code, and which would create an independent body to promote non-discrimination and equality, and monitor compliance with this law by public and private actors’ [emphasis added]. (Ireland to Honduras)

70 Belgium to Senegal.

followinGAhUmAnriGhTs-BAsedApproAch

States have used human rights language and referred to human rights instruments

Referring to recommendations made by prior human rights mechanisms and mentioning the relevant international standards provides legal strength and further content to a recommendation.

The Yogyakarta Principles in particular provide key benchmarks for the implementation of the recommendations. As further analysed below,⁷¹ only seven per cent of the recommendations refer to either international law in general terms or a specific instrument. Among them, the Yogyakarta Principles were referred to only 17 times in Cycle 1 and twice in Cycle 2, for example; ‘Apply the Yogyakarta Principles as a guide for new policies in the area of lesbian, gay, bisexual and transgender rights’ (the Netherlands to Serbia).

‘The fact that the Yogyakarta Principles are mentioned in one of the recommendations made to our country is important and valuable. We as civil society have used these principles in the past: it is a benchmark that the state can use and it is useful for us when engaging with the state.’ (Rossina Guerrero Vasquez, PROMSEX, Peru – cisgender straight woman)

States have integrated human rights principles into the recommendations

Among core human rights principles, non-discrimination and accountability have been central to the SOGIESC recommendations that have been made by states at the UPR. Conversely, too few recommendations have addressed the participation of the LGBTI community in, for instance, the development of a national action plan against discrimination or the debate on law reform. For example, ‘Draft and adopt a countrywide anti-discrimination strategy, in close cooperation with all relevant stakeholders, including with regard to sexual orientation and gender identity, and the Roma community’ (Germany to Bosnia-Herzegovina); and ‘Draft, in consultation with civil society, and adopt a law on gender identity for transgender persons in which their right to identity is recognised among other civil and political rights’ (Spain to El Salvador).

States have addressed the duty-bearers, rights-holders and key stakeholders

In order to address both the ‘what’ and the ‘how’, a human rights-based approach directs recommending states to identify ‘who’ is addressed; ie, rights-holders, duty-bearers and key stakeholders. To date, some attention has been brought by recommending states to the key

stakeholders, such as law enforcement officers and legal professionals. Conversely, very little attention has been brought to health professionals. For example, ‘Adopt all necessary measures to reduce prejudice and discrimination against the LGBT community, including through the training of the police, prosecutors and judges to respond effectively to violence against LGBT activists and to ensure the adequate protection of LGBT persons in the workplace’ (Ireland to Serbia); and ‘Continue innovative education programs recognising sexual diversity and adopt a health policy that further enhances awareness on, and the sensitising of, sexual orientation and gender issues amongst health personnel’ (the Netherlands to Uruguay).

71 See Chapter 4.

2.3. Classification of the recommendations by groups (LGBTI) and grounds