BdONU :: The “nays” of India, Brazil and South Africa
Analysis by Laura Waisbich and Raísa Cetra, Conectas Human Rights
By Laura Waisbich e Raísa Cetra, Conectas Direitos Humanos
Any vote in the United Nations is the result of a foreign policy decision, which like any other is not exempt from controversy. Voting against a resolution that has been drawn up by a UN human rights body undoubtedly sends an important political message. Dissenting votes can, however, either be one-off or systematic. Exploring some of these opposing votes by India, Brazil and South Africa – the so-called IBSA countries – in the Third Committee of the UN General Assembly and the UN Human Rights Council is what we shall do in this article.
Given that an analysis of voting patterns always requires a fair amount of interpretation, we intend here only to provide an initial overview of these “nays”. Sometimes we shall make assumptions to understand the facts involved, but we do not propose to uncover all the multiple reasons behind each vote. In the Third Committee, we shall analyze the positions of the IBSA countries on resolutions, amendments and no-action motions. In the Human Rights Council, we shall analyze the votes on resolutions and decisions.
What it means to vote against
There are two types of opposing votes in international bodies that debate human rights issues: a vote against a resolution or decision and a vote against an amendment or no-action motion/motion to adjourn the debate. They are, therefore, two distinct positions. The first, more frequently mentioned and discussed, represents a rejection (full or partial) of the content of the presented text (in other words, a rejection of the authority, legitimacy and/or effectiveness of the body to rule on a given topic).
Traditionally, opposing votes have been used to prevent a human rights issue from being brought to the fore. This is based on the assumption that – even though naturally permeated with political dynamics inherent to the international system – the vast majority of resolutions are ultimately intended to improve the protection of rights on a given issue or context, not to weaken them. It is worth noting that the trend has been to produce norms (through resolutions) that aims to expand rights, even though recently there have been examples of restrictive resolutions, whose content and essence are left open to unprogressive interpretations. An example of moving in the opposite direction to the expansion of rights was the resolution on “protection of the family”, approved in June 2014 in the Human Rights Council (HRC), which, among its other setbacks, did not recognize the many different forms of the family. For an analysis of the approval process of this text, see the website of Conectas .
In the case of voting on amendments, an opposing vote can either weaken or safeguard and assure the spirit of human rights protection, depending on the content of the original resolution and the content of the proposed amendment. In the game of diplomatic politics in international bodies, it is not uncommon for amendments to be submitted that run counter to the original text and that, if approved, significantly modify the meaning intended by the proponents and sponsors. There are countless examples of harmful amendments to the overall text. One illustration of this are the six amendments proposed by Congo, Djibouti, Egypt, Malaysia, Nigeria, South Sudan, Uganda and United Arab Emirates in negotiations on the resolution on sexual orientation and gender identity, in September 2014. The amendments sought to limit the scope of the text and water it down into a generic resolution on discrimination and violence, excluding all mention of the main purpose of the original proposal: matters of sexuality and gender. The resolution was finally approved and the amendments were all rejected, but as the sponsors of the text (Brazil, Chile, Colombia and Uruguay) argued: “to vote for these proposals is to vote against the struggle against violence and discrimination on the basis of sexual orientation and gender identity – which is unjustifiable.”
Finally, a vote against a no-action motion normally expresses the political will of a State for advances to be made on the human rights agenda and demonstrates a commitment to human rights dialogue, since no-action motions generally advocate for non-debate and block the development of new norms. Occasionally, no-action motions are used to avert setbacks, like the motion led by Mexico at the 28th session of the HRC. In this motion, the country requested the postponement of the debate of the resolution on terrorism, which, according to analysts, contained setbacks compared to the previous versions. Despite these rare cases, civil society organizations, among them Conectas, have stated that no-action motions are procedural tactics that go against the principles that govern the Human Rights Council. Note that the principle of “constructive international dialogue” and the need for countries to participate in “good faith” in each of the debates and not prevent them from happening.
How often IBSA votes against
Beginning with a more general outlook, the graph below clearly illustrates that, from the overall tally of opposing votes (both against resolutions and decisions, and against amendments and motions) in the period from 2006 to 2014, the occurrence of opposing votes is greater in the Third Committee of the UNGA than in the HRC for all three countries. There are, however, some obvious differences between them: Brazil cast opposing votes primarily against amendments and motions, while India more frequently voted against resolutions. South Africa, meanwhile, displayed a combination of the voting record of its two partners: in the Third Committee, it voted more frequently against amendments and motions (like Brazil) and in the HRC against resolutions (like India).
Although the opposing votes by IBSA in proportion to the total number of resolutions is relatively small, it is still important to understand the context of the times when these countries decided to take a dissenting position. This is what we shall do in the next section, in an attempt to discover whether there is a pattern in the choice of these “times”.
Is there a pattern?
We shall now proceed with a more detailed analysis of the pattern of votes in the Third Committee of the UNGA, given that this is the forum where the most votes were cast against resolutions and amendments/motions. The position of Brazil in the Third Committee is characteristic for never having voted against a resolution and for having repeatedly voted against amendments and motions that alter the substance of the resolution. An example of this systematic opposition to amendments that violate the protective spirit of the original text is the recommendation for a “Moratorium on the application of the death penalty” (an issue raised at the 63rd, 65th, 67th and 69th sessions). On this issue, the country has shown to be consistently in favor of the resolution and, therefore, against the amendments that attempt to restrict the influence of the UN in domestic legislation and would grant recognition to countries that apply capital punishment; such as, for example, the amendment proposed by Botswana in 2010 (A/C.3/65/L.62), which would recognize the use of the death penalty by some Member States.
Another voting pattern that jumps out from the analysis is the position relating to country resolutions, particularly in specific cases such as Myanmar/Burma, Iran and Belarus. It is well known that the IBSA members are quite skeptical about the treatment of human rights situations in specific countries, particularly when the debate occurs in the United Nations General Assembly in New York.
In the case of the resolutions on Myanmar/Burma in the Third Committee, between 2007 and 2011, there were some discrepancies between the IBSA countries, with India taking an opposing position and Brazil and South Africa alternating between abstention and voting in favor. For the resolutions on Iran, the position of the three countries oscillated between voting against and abstention. South Africa voted against the resolution on just two occasions and India, seven times. Finally, in the resolutions on Belarus, only India took an opposing position on some occasions (between 2012 and 2014 in the HRC and in 2007 in the Third Committee).
These examples illustrate that India, in particular, more openly opposes country resolutions both in the HRC and in the Third Committee, albeit not in all situations. Running counter to this trend, however, are the cases of the human rights situation in North Korea and the resolutions addressing violations committed by Israel in the Palestinian Territories. In the former case, India has alternated between supporting the consensus and abstention, while in the case of Palestine, it has voted in support almost every time.
Therefore, despite being principle-based, the skepticism of New Delhi in relation to this type of resolution is not absolute, meaning that the country also operates according to individual analysis on a case-by-case basis. In diplomatic rhetoric, India theoretically believes it to be counterproductive to adopt procedures that are “intrusive or uncooperative” (terms used by the Indian government in its explanation of vote after abstaining on a resolution, in 2014, on accountability in Sri Lanka), when UN human rights bodies debate issues in specific countries without their consent. Nevertheless, in practice we can see that there are cases in which the individual analysis of the situation leads the country to stray from this “principle-based” position.
To a lesser extent, Brazil and South Africa also have a principled discourse when it comes to country resolutions – although for these two countries this caution is demonstrated less by opposing votes and more by abstentions. For Brazil, for example, a resolution addressing a specific situation in some country must have an “impact on the ground” in order to secure the support of the Brazilian government. This opinion is widely expressed by Brazilian diplomats, as in the video conference ahead of the 28th session of the HRC, in March 2015, organized by the Brazilian Foreign Policy and Human Rights Committee, in which the Baha’i Community asked what Brazil’s position would be on the resolution on Iran in that session. The subsequent abstention by Brazil on this resolution could be related to this “principle-based” position of the country, besides the official justification given by the Brazilian delegation in Geneva. Or it could also be related to other internal political dynamics, such as the greater importance placed on economic and trade interests by the country at the start of President Dilma Rousseff’s second term.
Concerning thematic resolutions, it is worth pointing out the systematic opposition of India to the resolutions on a “Moratorium on the application of the death penalty” in the Third Committee, on the grounds that the UN is mistaken in not “recognizing the sovereign right of each nation to choose its legal system and to punish crimes in accordance with its domestic legislation”. In this case the opposition is obvious, since the Indian legal system permits the use of the death penalty. It is interesting to note that this resolution on the death penalty gives rise to a profusion of amendments every year in the Third Committee, against which Brazil has consistently voted against since 2008 (as previously mentioned), in an attempt to safeguard the spirit of the resolution that condemns the use of the death penalty.
Finally, a brief comment about the opposing votes by India, Brazil and South Africa in the Human Rights Council. Since 2006, Brazil has only cast an opposing vote on one occasion, in the case of a decision in 2009 on the “Publication of reports completed by the Sub-Commission on the Promotion and Protection of Human Rights” (A/HRC/DEC/10/117), which was a subsidiary of the former Commission on Human Rights (which preceded the creation of the Council).
India and South Africa, meanwhile, started in 2009 to vote against a number of resolutions in the HRC. New Delhi, for example, opposed texts on the death penalty (in 2013 and 2014) and the protection of human rights in the context of peaceful protests (2014), as well as resolutions on the human rights situation in Iran (2014) and in Belarus (2012 and 2013). It is important to remember that, in the Iran case, India had abstained in 2012 and 2013. The South Africans, meanwhile, opposed texts such as those dealing with human rights in Syria (2014) and in Sudan (2009), as well as thematic resolutions on peaceful protests (2014) and on the impact of religious discrimination on the enjoyment of social, economic and cultural rights (2009). As is turns out, the “nays” in Geneva are less systematic than the “nays” in New York. It also turns out that the frequency of opposing votes has increased in the HRC since 2012. Moreover, it should also be noted that the number of opposing votes by India in the Council peaked in 2014: 4 such votes, after the country had voted against a resolution just once each year in 2012 and 2013. Another peak in opposing votes in 2014 by South Africa has also raised concerns. The last time this happened was in 2009. Could it be a new pattern emerging? Can we associate it with the rising politicization of/in the Council (ironically, the very same problem that undermined the legitimacy of the former Commission on Human Rights)? And if these hunches are correct, is it a warning sign for civil society organizations in the IBSA countries and a wake-up call for them to monitor the conduct of their countries even more closely?
One last comment. Given the criticisms levelled by the IBSA countries against the politicization and selectivity of human rights bodies, and the use of opposing votes only in some thematic cases, it looks as though, in the HRC, it will be the pattern of abstentions that produces the most thought-provoking elements for analyzing the positions of these countries in the Council. But this will be another chapter in this story, one of “perhaps”, indicating when a country does not want to take a position.
 The data are contained in the “Database – how India, Brazil and South Africa vote in the UN” available at <http://conectas.org/bdonu>
 Available at <http://conectas.org/pt/acoes/politica-externa/noticia/24199-termina-a-26a-sessao-do-conselho-de-direitos-humanos>
 The so-called no-action motion refers to the “motion for adjournment of debate”, established in Rule 74 of the General Assembly, available at <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/520/rev.17&Lang=E>
 For more information, see “HRC27: Council members must reject procedural tactics that foreclose substantive debate” available at <http://www.forum-asia.org/?p=17737>
 This position had already been defined and defended in 2010 by Brazil’s Foreign Relations Minister at the time: “A harsh condemnation of this or that country in Geneva or New York, based on a self-ascribed position of high moral ground, does little to ameliorate the situation of those perishing in the field”. Available at < http://www.scielo.br/scielo.php?pid=S0034-73292010000300013&script=sci_abstract&tlng=pt>
 “Brazil understands that the renewed commitment of Iran to the human rights system should be recognized, particularly the acceptance of the majority of the recommendations made during the country’s participation in the second cycle of the Universal Periodic Review and the invitations extended to the High Commissioner and the Special Rapporteurs on the right to food and on the right to health to visit Iran.” The complete justification can be found at < http://www.itamaraty.gov.br/index.php?option=com_content&view=article&id=8480&catid=42&Itemid=280&lang=pt-BR>.
 According to the database “The Council decided that all reports of the Sub-Commission on the Promotion and Protection of Human Rights mandated by the Commission on Human Rights that have been completed and submitted to the OHCHR pursuant to the resolutions and decisions of the Sub-Commission at its 58th session be issued as United Nations documents”. This resolution had 29 votes in favor, 3 votes against (including those of Brazil and India) and 15 abstentions.