United Nations Human Rights Council
Background Guide
The United Nations Human Rights Program began as a minor division at the UN
Headquarters in New York during the 1940s. It was later upgraded to the Centre for Human
Rights in the 1980s upon moving to Geneva. Finally, at the World Conference on Human Rights
in 1993, the international community recognized the need for a more robust human rights
mandate with stronger institutional support. As a result, United Nations Human Rights council
(UNHRC) was created by a General Assembly Resolution during the same year. UNHRC is led by
the High Commissioner for Human Rights, and is also composed of two major divisions and four
branches. In concordance with the UN as a whole, UNHRC represents the world’s commitment
to human dignity, built upon a mandate from the international community to protect all human
rights.
I: The Death Sentence as it Relates to Individuals of Foreign Citizenship
As the world continues to globalize, international borders are becoming increasingly
porous. With many individuals traveling across borders and information able to spread around
the world in an instant, many countries are finding it incredibly difficult to maintain and enforce
their national laws, particularly in regards to criminal punishment. While the death penalty has
existed for as long as human society, an increasingly progressive wave of human rights
advocacy championed mainly by the West has brought the question of the death penalty into
consideration. While many countries have abandoned the practice, many others continue to
utilize it, causing significant international tension when a foreign individual is sentenced to
death.
As the principal of national sovereignty holds, any individual is subject to the laws of the
state in which they are physically present and the laws of a foreign country do not apply within
the borders of another. This also directly applies to a state’s methods for criminal punishment.
Under international law, it is currently legal for a country to utilize a death penalty, though they
are requested to eventually move away from the practice.1 Foreign nationals are subject to
local laws, and therefore may be sentenced to death in a country not their own. This, however
has raised considerable questions by nations of origins, who frequently cite insufficient legal
representation and unfair targeting of citizens as politically motivated. Additionally, while
many states have outlawed the death sentence as a violation of civil and human rights, their
citizens may still be subject to the punishment abroad. This makes the death sentence for
1
Res A/70/304
1
individuals of foreign citizenship a contentious issue for many countries with different
perspectives on its use.
There is debate in the international community about which crimes could warrant the
death penalty. While most countries that allow the death penalty usually reserve it for severe
crimes like murder, many others, including China, Saudi Arabia, Iran, Malaysia, Singapore,
Indonesia, and Kuwait enforce the death penalty for drug offences and other seemingly minor
offenses.2 According to article 6(2) of the International Covenant on Civil and Political Rights,
the death penalty may only be applied to the “most serious crimes”3 allowing for vague
interpretation at the national level. While some states consider drug offences, often the
smuggling of drugs, to be serious enough to warrant the death penalty because of the damage
it can cause to the local population, others vehemently refute this, claiming that drug offenses
do not fall under the category of “most serious crimes.” The United Nations Human Rights
Committee and the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary
executions have clearly stated that in their opinion, drug offences do not fall into this category
and to implement a death penalty for these crimes is to commit a violation of international
human rights law.4 This however, has done little to sway many states away from the practice.
In addition to punishments that may be considered too severe for a person’s national of
citizenship, there have also been examples of foreign nationals being treated unfairly in relation
to citizens; a claim of politically motivated punishment that has frequently been used in
international disputes of an individual’s sentence. In the “Avena and Other Mexican Nationals”
decision by the International Court of Justice, it is explained that carrying out the death penalty
on a foreign national would only be permissible “only where the most rigorous standards of
fairness and legality of international jurisprudence are scrupulously followed.”5 In addition,
there are basic recommendations for the prosecuting country, such as giving the defendant the
right to consult with their consulate.6 Oftentimes, these standards are not met for foreign
nationals. Of the 54 Mexican citizens on death row in the United States in 2003, the “Avena and
Other Mexican Nationals” case found that only 3 of them were promptly informed of this right,
which is in violation of Article 36 (1) (b) of the Vienna Convention on Consular Relations.7 It is
2
Patrick Gallahue, "New Report: Foreign Drug Offenders Facing Death in China, Saudi Arabia, Iran, Malaysia,
Singapore, Indonesia, and Kuwait," Harm Reduction International, September 14, 2011.
3
Patrick Gallahue, "New Report: Foreign Drug Offenders Facing Death in China, Saudi Arabia, Iran, Malaysia,
Singapore, Indonesia, and Kuwait," Harm Reduction International, September 14, 2011.
4
Patrick Gallahue, "New Report: Foreign Drug Offenders Facing Death in China, Saudi Arabia, Iran, Malaysia,
Singapore, Indonesia, and Kuwait," Harm Reduction International, September 14, 2011.
5
Catherine M. Amirfar, “The Avena Case in the International Court of Justice”, German Law Journal No. 4, April,
2004
6
“There are also basic recommendations for the prosecuting country, such as giving the defendant the right to
consult with their consulate.
7
“Foreign Nationals," Death Penalty Worldwide, Cornell Law School, October 31, 2011.
2
this inequality that has prompted international authorities to suggest aid from the foreign
national’s home country.
The differences in what is considered to be a severe crime punishable by death, and a
lack of knowledge on the part of foreign individuals has become significantly apparent,
particularly in Saudi Arabia. A report from Amnesty International showed that foreigners are
more than eight times more likely to be executed than Saudi citizens in Saudi Arabia, especially
among migrant workers.8 This disparity is largely due to a practice in Saudi law called diya,
which is a monetary fine that a perpetrator can pay to the family of a victim in exchange for
clemency. Many foreign workers in Saudi Arabia are too poor to afford the diya payment. Of
Saudi citizens, about one in four is spared as a result of diya; however, for foreign nationals,
only one in thirty is spared.9 In addition, trials are often carried out in a language that the
defendant does not speak10 and the defendants may also have more limited access to legal
aid.11
While there has been considerable debate in international law on the subject of the
death penalty, these issues can become contentious often due to their openness to
interpretation. Many member states strongly disagree with each other on the application of the
death penalty and under which circumstances it is warranted, leading to disagreements,
increased tensions, and political fallout between member states. While many states who
oppose the death penalty or have stricter standards for its use may wish to protect their
citizens from the practice abroad, other feel that these demands constitute a violation of a their
sovereign authority to determine their own laws.
While the death penalty is perhaps one of the oldest forms of punishment in human
history, changing cultural patterns and increasingly progressive views on the subject are
creating strong disparities regarding the practice around the world. With many issues
surrounding the issue, a balance must be achieved between protecting the lives of individuals,
and respecting national sovereignty.
Questions to Consider: In what ways does the death penalty relate to human rights? How
does culture influence a country’s form of criminal punishment? How can states ensure the
legal protection of their citizens while traveling abroad? What crimes are punishable by death
under international law?
8
Damien McElroy, "Foreigners Eight times More Likely to Be Executed in Saudi Arabia, Report Says," The
Telegraph, October 14, 2008.
9
Damien McElroy, "Foreigners Eight times More Likely to Be Executed in Saudi Arabia, Report Says," The
Telegraph, October 14, 2008.
10
Damien McElroy, "Foreigners Eight times More Likely to Be Executed in Saudi Arabia, Report Says," The
Telegraph, October 14, 2008.
11
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/70/304
3
II: Protecting the Human Rights of LGBT People
The recognition of the rights of lesbian, gay, bisexual, and transgender (LGBT)
individuals has seen considerable attention over the past decade. With a wave of countries,
mainly in Western Europe and Latin America, adopting increasingly progressive policies in
regards to the rights of the LGBT community, in many places around the world, homosexuality
considered illegal, punishable by fines, imprisonment, and in some cases even death. While
much of the conflict over LGBT rights stems from differing cultural foundations, the United
Nations has called for greater effort to protect these vulnerable individuals from the stigma and
violence they face throughout the world.
The question of internationally recognized human rights for LGBT individuals is a unique
question in international law. Because many countries claim cultural heritage as a basis for
anti-LGBT policies, along with claims that homosexuality is immoral or disruptive, opponents to
UN action on the topic has been met with criticism, claiming that it would be an imposition of
Western values, and a violation of states’ sovereign authority.12 While the United Nations
leadership has strongly advocated for the inclusion of LGBT rights as human rights, the question
arises as how to protect the human rights of LGBT individuals while also respecting the cultural
heritage and national sovereignty of states that oppose homosexuality.
To understand the full scope of the need for a global recognition of LGBT rights as
human rights, it is important to note that currently, homosexuality is considered a criminal
offense in 74 countries, and is punishable by death in 13.13 While this in itself is alarming, there
are also many countries in which LGBT individuals face social stigmas and violence, despite
same-sex relationships being legal. While many have cited these policies as purely the domain
of a sovereign state, any have argued that the treatment of LGBT individuals violates the
foundations of the Universal Declaration of Human Rights because these communities are
targeted based strictly on real or perceived elements of their identities.14
There are a number of reasons as to why anti-LGBT laws and social attitudes have
persisted in many parts of the world. Two factors most frequently cited are religious and
cultural heritage.15 It has also been argued that some countries use penalizing homosexuality as
a political tool against their opponents. The case has been made that anti-LGBT laws have been
used as blackmail and extortion16 and anti-LGBT laws are often passed in order to boost flagging
popularity to or bolster anti-Western credentials of politicians.17
12
Graeme Reid. "International Law and the Uncertainty of Rights for LGBT People." Jurist. September 6, 2014.
Siobhan Fenton, “LGBT Relationships are Illegal in 74 Countries, Research Finds”. The Independent. May 17, 2016
14
Ibid.
15
Graeme Reid. "International Law and the Uncertainty of Rights for LGBT People." Jurist. September 6, 2014.
16
Ibid.
17
Ibid
13
4
While a hotly contested issue, there has been considerable work done by the United
Nations in Recent Years. Relevant resolutions include A/HRC/RES/17/19, which was the first UN
resolution on human rights violations based on sexual orientation and gender identity.18 It
requested a study to be commissioned documenting discriminatory laws and practices based
on sexual orientation and gender identity and a panel discussion to be held to discuss
appropriate follow-up on the findings of the study.19 A/HRC/RES/27/32 was a follow-up to this
resolution which requested an update to the report completed under A/HRC/RES/17/19. The
update requested the updated report “[share] good practices and ways to overcome violence
and discrimination, in application of existing international human rights law and standards.”20
The report is a very useful resource; its reference number is A/HRC/19/41. Lastly, A/RES/69/182
discusses extrajudicial, summary or arbitrary executions. It condemns these types of killings,
and lists “sexual orientation or gender identity” as a specific group that might be targeted and
should be protected.21
In addition to these resolutions which specifically reference sexual orientation and
gender identity, protection of LGBT rights might fall under any number of human rights
resolutions. Examples of human rights violations against LGBT individuals include execution by
the state, denial of employment, housing, or health services, loss of custody of children, denial
of asylum, rape and other torture in detention, threats for campaigning for LGBT human rights,
and regular subjection to verbal abuse, among many others.22
The Yogyakarta Principles, a guide on the application of international human rights law
in relation to sexual orientation and gender identity written by a group of international human
rights experts, details the legal standards that states should adhere to in drafting laws
applicable to LGBT rights.23
In another example, the case of Toonen v. Australia was a human rights case against the
Australian government by an Australian citizen, Nicholas Toonen, in 1994 brought before the
United Nations Human Rights Committee. The case established that sexual orientation was a
protected status under the International Covenant on Civil and Political Rights (ICCPR)24, and
resulted in the repeal of Australia’s sodomy laws.25 Despite The Toonen v. Australia case
establishing that sexual orientation is a protected status under the ICCPR, many countries are
not amenable to passing national laws protecting LGBT citizens, or to passing UN resolutions
protecting LGBT people. Many countries, including Russia and many Islamic countries, have
18
"SOGI Victory at the Human Rights Council." ARC International. September 26, 2014.
A/HRC/RES/17/19
20
A/HRC/RES/27/32
21
A/RES/69/182
22
"About LGBT Human Rights." Amnesty International.
23
The Yogyakarta Principles. 2007.
24
Toonen v. Australia (United Nations Human Rights Council March 31, 1994).
25
“Human Rights Explained: Case Studies: Complaints about Australia to the Human Rights Committee." Australian
Human Rights Commission. September 16, 2010.
19
5
complained that imposing protections for LGBT individuals is a rejection of their traditional
values and is a push from the west to impose their cultural values on other nations. 26 This
coalition tends to back resolutions which are friendlier to what they call “traditional values.”27
These countries also tend to create laws as a backlash against western conceptions of LGBT
rights, which are often “guised as nationalism.”28
Examples of LGBT human rights violations include convicting gay men for producing a
video of a same-sex marriage in Egypt, sexual abuse and torture of LGBT prisoners in El
Salvador, writing a law making “aggravated homosexuality” a crime punishable by life in prison
in The Gambia, and criminalizing the spreading of LGBT “propaganda” in Russia. 29 A complete
list can be found in the U.S. State Department 2014 Human Rights Country Reports.30
Navigating how best to protect the human rights of LGBT people while being culturally
sensitive and avoiding imposition of foreign values is a tricky endeavor both politically and
morally. The United Nations is an organization which hopes to include and hear the voices of
the entire world, and therefore sensitivity to these issues is the only solution in the United
Nations. Nonetheless, it is of paramount importance that the international community protects
the human rights of all world citizens.
Questions to consider: How do questions of LGBT rights relate to standing norms for Human
Rights? How can cultural heritage be respected, while promoting the greater LGBT rights?
What are the fundamental reasons for opposition to LGBT rights around the globe?
26
Erasmus. "A New Global Force Is Fighting Liberal Social Mores." The Economist, July 11, 2015.
Ibid.
28
Rohrich, Kyle. "Human Rights Diplomacy Amidst "World War LGBT": Re-examining Western Promotion of LGBT
Rights in Light of the “Traditional Values” Discourse." Transatlantic Perspectives on Diplomacy and Diversity, 2015.
29
HRC Staff. "State Department Report Documents LGBT Human Rights Violations." Human Rights Watch (blog).
Accessed June 25, 2015.
30
“Country Reports on Human Rights Practices for 2014.” United States. United States Department of State Bureau
of Democracy, Human Rights and Labor. 2014.
27
6