To keep tabs on the lives and rights of people across the world, the United Nations Human Rights Council has the help of 44 independent monitors supposedly chosen for their expertise on a range of themes, from harsh government abuses to often-overlooked individual special needs. A dozen others are assigned specific countries to watch.
Like so many appointments in the UN, the choices of these unpaid “special rapporteurs,” as they are officially described, cannot escape political pressures from national leaders and regional blocs eager to score a “win.” Powerful advocates and rich foundation funders outside the UN also exert influence. Critics may question the relevant qualifications of winners.
Council selections can include controversial choices. Several of those are present in the mix now, among them the appointment in July of Tlaleng Mofokeng as the special rapporteur for physical and mental health.
The sweeping mandate for this position is: “To gather, request, receive and exchange information from all relevant sources . . . on the realization of the right of everyone to the highest attainable standard of physical and mental health. . . . ” The monitor is expected to study and report on national health policies and practices for children and adults.
It is a difficult time for global health and rights, with a viral pandemic raging while other concurrent crises, such as treatment of chronic noninfectious diseases, are pushed into second place and childhood vaccinations decline.
The appointment of Mofokeng, a South African, was recommended by a Human Rights Council consultative panel of member nations and confirmed by this year’s Council president, Elisabeth Tichy-Fisslberger of Austria, her country’s ambassador to the UN in Geneva.
The choice immediately reopened a debate over women’s sexual rights and protections ahead of the 25th anniversary in September of the international conference on women, held in Beijing in September 1995. (The commemoration is to be held virtually on Oct. 1.)
Mofokeng, a physician and recognized specialist on reproductive health, has been widely noted for her work in areas such as family planning and women’s health care. She is a member of the Commission on Gender Equality in her home country. Internationally, in 2016 she was given a “120 Under 40” leadership award for family planning by the Bill and Melinda Gates Foundation’s Institute for Population and Reproductive Health.
In recent years, however, most of her career has been focused on sexual behavior and sex therapy, as she demonstrated in her 2019 book, “Dr T: A Guide to Sexual Health and Pleasure.” She did not include the book among her published works on her application to the Human Rights Council in April 2020.
She is also a leader in an international campaign to decriminalize — legitimize — prostitution. In April 2019, Mofokeng published an opinion article in Teen Vogue in which she wrote:
“I believe sex work and sex worker rights are women’s rights, health rights, labor rights, and the litmus test for intersectional feminism. Further, the impact of continued criminalization of the majority of sex workers, most of whom are cisgender women [who retain their birth gender identities] and transgender women, mean that sex worker rights are a feminist issue.”
In a tweet on Aug. 6 after her appointment as a human-rights rapporteur, she said that while a year ago, she had to rely on favors from civil society organizations to press her cause in the UN . . . “now, the next time I enter there, I will be carrying all the Black Women in me as the United Nations independent expert.” She plans to take her decriminalization campaign global.
The most urgent concern among opponents of decriminalization is the appointment of Mofokeng as board chair of SWEAT, a South African nongovernmental organization whose name stands for Sex Workers Education and Advocacy Taskforce. She begins her term as a UN rapporteur while also heading the organization, which supports decriminalization and assists sex workers in many ways.
Mofokeng did not respond to several requests for comment on the opposition to her appointment.
Sex work is no longer called prostitution in many UN agencies and programs, though the terminology has not been officially changed.
In 2013, asked about a new terminology purged of the word “prostitution,” Navi Pillay, then the UN high commissioner for human rights, wrote in a letter to Equality Now, which PassBlue has seen, that “OHCHR developed a set of Principles and Guidelines on Human Rights and Human Trafficking, which are neutral in relation to the criminalization of prostitution or sex work.”
The Office of the UN High Commissioner for Human Rights, OHCHR, is a permanent UN Secretariat body with a high commissioner appointed by the secretary-general. It provides technical and institutional support to the 47-member Human Rights Council, a self-governing intergovernmental body.
In November 2019, Phumzile Mlambo-Ngcuka, the executive director of UN Women, reaffirmed that neutrality.
Taina Bien-Aimé, a lawyer and a former executive director of Equality Now, is the executive director of the Coalition Against Trafficking in Women. With international partners, the New York-based coalition advocates for strong laws to deal with violence against women and girls and sexual exploitation. In her view, reflecting broad opinion in developing nations and other countries where women are especially vulnerable to trafficking, decriminalizing prostitution/sex work does not make sense.
“It is astounding,” Bien-Aimé wrote in an email interview with PassBlue, “that of all the experienced medical experts, the Human Rights Council would pick someone who encourages adolescent girls to consider prostitution as a job as she did in her opinion piece in Teen Vogue, asking them to be open to sex buyers’ ‘kinks,’ and openly calling for the decriminalization of the sex trade.
“Alas, she is not the only UN independent expert to do so,” Bien-Aimé continued. “The last special rapporteur on trafficking recently called on governments to decriminalize all aspects of prostitution, including sex buying and pimping. As for her successor in that role, the jury is still out as to her views on this issue.
“We rely on special rapporteurs to document human rights violations and urge governments to protect their most vulnerable populations from debilitating harm, inequalities, sexual exploitation and violence,” Bien-Aimé wrote. “Instead, it appears that OHCHR, which supports the Human Rights Council, is signaling that it too endorses legal frameworks that empower sex buyers and brothel owners.
“Member states should know that too many UN agencies are ignoring ratified conventions when endorsing a global sex trade that jeopardizes lives, especially those of the most marginalized women and girls from the global south. It’s a pattern that reflects poorly on the UN’s purported goals to secure equality and justice for all.”
In an interview with PassBlue in 2019, Ruchira Gupta, who has won numerous awards, including an Emmy, for advocating on behalf of poor and low-caste South Asian women and girls, said that for these most-vulnerable people, often very young victims, “Prostitution chooses them; they do not choose prostitution.”
In South Africa, Nozizwe Madlala-Routledge, founder of the nonprofit group Embrace Dignity and a former deputy minister of defense, wrote in a memo to PassBlue that while Mofokeng’s appointment as a UN specialist for health was being celebrated by the South African media, “Dr T [for Tlaleng] represents a minority in my country who think the commodification of women’s bodies should be promoted and recognized as ‘work.’
“The campaign for the decriminalization of sex work has been ongoing since the dawn of democracy in South Africa, with renewed calls during the 2010 FIFA World Cup hosted here,” Madlala-Routledge wrote. “If this is what South Africa wanted, as Dr T claims, why has their campaign hardly made a dent on policy on prostitution?
“In 2009, the South African Law Reform Commission was charged with conducting public participation and research ‘to explore the need for law reform in relation to adult prostitution against the backdrop of some of the complex realities South Africans face,’ ” she wrote.
“Clearly, the aim was to deter rather than promote prostitution,” Madlala-Routledge said. “The report issued in 2017 totally rejected full decriminalization as a legal option. Instead, it recommended either keeping prostitution totally criminalized [the status quo] or partial decriminalization [a version of the Equality Law pioneered in Sweden].
“There have been other processes since then, including a high level panel led by former President Kgalema Motlanthe,” she wrote. “It recommends decriminalizing only those who sell sex so that they can be supported to exit. Also, a resolution of the National Council of Provinces [upper house, or Senate] recommended the Swedish model law after a two year process involving public participation and a site visit to Sweden.”
Keith Harper was the United States ambassador to the UN in Geneva while also the American envoy to the Human Rights Council under the Obama administration, from 2014 until 2017, when Trump became president. In June 2018, he pulled the US out of the Council.
Harper, chairman of the Native American law practice at the Washington firm of Jenner&Block and a citizen of the Cherokee Nation, spoke with PassBlue about his experience with the Human Rights Council and the mandates it assigns to special rapporteurs.
“As in much of the UN, everything is broken down into regions,” he said, adding that they are represented at all levels, including through rotation of the Council’s presidency. How the regional system works is basic to understanding the UN.
A consultative group within the Council sends recommendations for appointments to the Council president, who picks the winners. The group is composed of five ambassadors, one from each of the five regional groups: African, Asia-Pacific, Eastern European, Latin America and the Caribbean and Western European and Others, which includes Australia, Canada, New Zealand and the US (as only an observer since its withdrawal).
“In my experience these appointments are hit or miss,” Harper said. “They are decided by ambassadors in that group of five, and there is horse-trading.
“Some of these rapporteurs are just the most brilliant folks out there,” he said. He mentioned, among others, Marzuki Darusman of Indonesia, reporting on Myanmar/Burma and the Rohingya; and David Kaye, an American law professor who just completed a term as special rapporteur on the promotion and protection of the right to freedom of opinion and expression.
Not all rapporteurs meet the highest standards, Harper said, and some mandates are vague or inexplicable.
“Because of the dynamics of the selection process, the result is that you always have folks that either don’t fully appreciate the mandate, or just are not up to the task.”
This article was updated on Aug. 25.
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