State responses to COVID-19 have revealed that many national governments are not prioritizing access to safe abortion and other reproductive health care services, despite their vital importance to ensure the well-being of all persons. In this free webinar, Professor Dipika Jain and Payal Shah will offer comparative perspectives on reproductive justice in India and globally, in the context of COVID-19 and beyond the pandemic.  In a new article just published in the Columbia Journal of Gender and Law, the speakers examine the transformative potential of jurisprudence from the Indian Supreme Court on reproductive rights. They argue that it is critical for the judiciary to move beyond privacy-based arguments and incorporate a comprehensive equality-based analysis that accounts for the impact of gender, caste, indigeneity, age, and socioeconomic status. The COVID-19 pandemic has brought to light deep-rooted inequalities in access to healthcare services, in India and other countries. In these circumstances, restrictions on access to abortion disproportionately impact marginalized persons, making it imperative for law and policy-making to adopt an equality analysis in their approach.

Friday, May 15
12:00 PM EST/9:30 PM IST
Please register through the following link: https://indialawcenter.lawschool.cornell.edu/ReproductiveJustice

 

by Sital Kalantry**

Although nearly seventy-five percent of the countries in the world have adopted a uniform approach to refugees, India privileges people from certain groups and countries over others. Nearly 150 countries around the world, including the United States, are party to the 1951 UN Convention on Refugees or the 1967 Protocol adopted pursuant to the Convention. Signatories to the 1951 UN Refugee Convention cannot deport people who have a fear of persecution or have been persecuted on the basis of their religion, nationality, race, political opinion, or particular social group. This world consensus on refugees developed in response to the Nazi’s persecution and killing of Jews and other minorities.

India, however, is not party to nor has it acceded to the 1951 UN Refugee Convention nor the 1967 Protocol to that Convention.  Consequently, it can pick and choose which types of refugees it will accept and which it will reject.  Buddhists from Tibet fleeing China’s persecution have been welcomed in India, but Rohingyas fleeing from religious persecution in Myanmar are generally denied entry into India. This selective approach that gives priority to certain refugees while rejecting others is reflected in the law that lead to widespread protests and violence in India recently, the Citizenship Amendment Act of 2019(the “CAA”). By that amendment, the Indian Parliament amended its nationality law, the Citizenship Act of 1955, to give a fast-track pathway to citizenship to Hindu, Sikhs, Buddhists, Jains, Parsis, and Christians (but Muslims) who had entered India before 2014 from Pakistan, Afghanistan, or Bangladesh.

Widespread protests around India erupted immediately after this law was passed.  People gathered to read the preamble of the Indian Constitution to suggest that the government had violated the principles of the Constitution that requires it to treat all its residents equally. The CAA was seen to reflect a vision of India as Hindu where Muslims are not welcome. These protests went on for months with protestors continuously protesting in Shaheen Bagh, New Delhi shortly after the CAA was passed. Then pro-CAA protestsemerged and shortly before Trump’s visit to India, violence began. Recent reportssuggest that forty-four people died in the violence in Delhi and most of them were Muslims. The Indian government refuses to give a pathway to citizenship to Muslims minorities who were persecuted in Pakistan and Bangladesh.

While the objections to the CAA were forceful and from many corners, few people realize that the Indian government had already adopted the same approachto refugees as found in the CAA with two notifications from the Ministry of Home Affairs years earlier in 2015and 2016.  In those notifications, the Ministry of Home Affairs amended the Passport (Entry into India) Rules of 1950to allow “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the December 31, 2014” to travel without valid travel document into India.  Although the CAA is seen as a uniquely discriminatory law, the reality is that the unequal treatment of refugees and the privileging of certain group over others it not a new policy approach of the Indian government.

On the other hand, if, like most of the countries in the world, India had signed or acceded to the 1951 UN Refugee Conventionor 1967 Protocol, it would not be permitted to privilege certain types of refugees over others. The 1951 UN Refugee Convention requires countries to admit and refrain from deporting refugees. To qualify as a refugee, a person must fear or have been subject to religious persecution (or certain other forms of persecution) in the country of his or her residence.  If it were party to the UN Refugee Convention or Protocol, India could not adopt a policy that excluded Muslims or one that allowed refugees only from certain countries. Nearly 150 countries in the world follow the same approach to refugees, India should also accede to the 1951 UN Convention.

**The authoris a Clinical Professor of Law, Cornell Law School, has published a book on Women’s Rights and Migrationin 2017, is faculty director of the Cornell India Law Center, and teaches international human rights and immigration law.

Republished from The Hindustan Times, March 12, 2020: https://www.hindustantimes.com/analysis/india-should-also-accede-to-the-un-refugee-convention/story-6XP68ZzpFZGBXkTFMGD6EM.html

 

After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.

On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief.  Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection.

In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he inappropriately quotes an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.

Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.

The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.

For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts.

[cross-posted on the Human Rights at Home Law Professor Blog]

cross-posted from the American Society of International Law’s “ASIL Insight” available at https://www.asil.org/insights/volume/21/issue/15/veil-bans-european-court-human-rights

In recent years a number of European countries have prohibited women from publicly wearing veils that cover their faces.[1] The European Court of Human Rights (the ECtHR or the Court) recently found that Belgium’s veil ban did not violate the European Convention on Human Rights (the Convention).[2]

Restrictions on Muslim women’s clothing first appeared before the Court in a case from Turkey in 2004 involving bans on headscarves in educational institutions.[3] In 2014, the Court found that France’s veil ban did not violate the Convention.[4] In the most recent cases concerning Belgium, the Court also left the Turkish veil ban undisturbed.[5] In this Insight, we explain the relevant rights in the Convention that were in question in the veil bans. Thereafter, we discuss how each of the Court’s decisions have appeared to rely on its prior veil ban decisions and have reached the same legal conclusion to uphold the veil ban, despite contextual differences among the three countries that could have affected the Court’s application of the law to the facts.

Continue reading →

  Meryl Streep recently opened the U.S. premier of the controversial documentary India’s Daugther about the rape victim who died in December 2012 in India. In the film by Leslee Udwin, the world learns for the first time the motive for the attacks directly from the mouth of one of the accused rapists. Mukesh Singh says that his co-conspirators wanted to teach Jyoti Singh, a medical student, a lesson that she should not be out at night with man that is not her husband. According to him, her death was an accident and that she would not have died if she did not resist. The Indian government has banned the film and asked the BBC not to air it, because the filmmaker failed to follow the guidelines of the prison where the interview of the accused was conducted.

Even before this, feminist lawyers and activists wrote a letter to a TV station in India that was planning to screen the documentary asking that they delay its showing for a host of legal reasons — that it contains hate speech, it incites violence, and interferes with fair trial rights of the defendant whose appeal is currently pending in the Supreme Court. Many Indian women’s movement leaders object to the documentary because it feeds the triumvirate troupe of the Western woman as savior, the Indian woman as oppressed, and the Indian man as rapist.

The real contribution of the documentary and the reactions to it is that exposes the vast divide between the “many Indias.” The discussion around the film neglects the important information we learn about Jyoti, she is like a new generation of Indians who have been raised with Western media, American food, and the values that follow it. She challenged societal norms and insisted that her parents allow her to pursue a medical education and worked at a call center to support herself. Following economic liberalization in 1991, a growing middle class emerged that is increasingly indistinguishable from those in many Western cities — they watch American movies, eat hamburgers, drink their version of Starbucks coffee, and date. These young Indians may work at call centers, Indian-subsidiaries for foreign corporation, banks, and other emerging businesses.

To read the full post, please visit: http://www.huffingtonpost.com/sital-kalantry/indias-daughter-sexual-violence-and-the-many-indias_b_6842334.html

Co-Author: Miriam Yeung, Executive Director, National Asian Pacific Women’s Forum

Reprinted from the Huffington Post Blog: http://www.huffingtonpost.com/sital-kalantry/stereotyping-asian-americans-as-misogynist-_b_5584130.html

In recent years, politicians in almost half the states in the United States as well as a majority of the U.S. House of Representatives have tried to pass anti-abortion laws to, purportedly, address a bias against girl children among Asian Americans and eight states have passed such laws. At this moment, the Asian American population is the fastest-growing racial group in the United States, in part due to the growing number of Asian immigrants — which now surpasses the number of immigrants from Latin American countries. This legislation has been fueled by a combination of implicit bias, factual inaccuracies and harmful racial stereotypes that Asian Americans have a preference for sons. People assume that just because there are so many more boys than girls born in some Asian countries that when people from those countries migrate to the United States, they also abort female fetuses due to a preference for sons.

Setting aside abortion politicking, political ideology and religious dogma, we set out to closely examine the claims fueling legislation banning sex-selective abortion in the United States. Legal scholars from the University of Chicago Law School led a multidisciplinary team that undertook an exhaustive review of U.S. census data and conducted field-work in India, and recently published a new study that finally unravels the “evidence” fueling this anti-Asian campaign.

In our new report, Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States, we find that this legislation is based on myths and misinformation. In fact, while sex-selective abortion bans have proliferated based on a supposed concern over Asian immigrant birth patterns, the reality is that Asian Americans tend to have more girls than white Americans.

The main empirical data on which legislators have relied to pass laws banning sex-selective abortion is a study of 15-year-old U.S. census data. In analyzing more recent U.S. census data from 2007 to 2011, our team of economists found that Asian Americans do not exhibit a preference for sons (or an aversion for daughters). These birthing patterns are very different than what is happening in India and China.

Continue reading →

   The European Court of Human Rights ruled last week that France’s ban on wearing the full veil in public places did not contravene the European Convention on Human Rights.   Although Article 9 of the Convention protects individual religious freedom, the freedom to manifest one’s religion can be limited if it is necessary for “public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”  In S.A.S. v. France, the Court found that the French ban was a permissible restriction on religious freedom because it was undertaken for the “protection of the rights and freedoms of others.”  The Court agreed with France that the full veil undermines the idea of “living together.” In other words, if some women wore a full veil, it would breach the rights of others to live in a space, which made socialization easier. This privileges the view that immigrants should assimilate in society over the notion that a country should embrace diversity. The dissenting opinion pointed out that that concept of “living together” is vague and should not outweigh a person’s religious freedom.

But one of the real issues motivating the ban was dismissed by the Court without much discussion.  Many argue that the hijab is repressive to women and banning it would enhance women’s equality. Others have argued that this position denies agency to individual women who choose to veil. The Court rejected France’s argument that the ban was necessary for women’s equality, because it noted that it was a woman who was challenging the ban.  Indeed, the petitioner argued that it was emancipating for her to wear the veil.

In justifying its decision, the Court relied on a 2005 decision where it found that Turkey’s ban on headscarves in educational institutions did not violate religious freedom, because it was undertaken for the purpose of promoting democracy and secularism.   However,  when considering whether or not the full veil or headscarf is repressive to women, the country context is rarely taken into account by commentators.  In other words, a ban in one country may violate human rights, but it might not in another country. Thus, just because the Court found Turkey’s headscarf ban permissible, it doesn’t automatically follow that France’s ban is also legitimate.        

Amnesty International, Open Society Justice Initiative and a host of other organizations submitted briefs opposing the full veil ban in France.   But if Saudi Arabia (a stark example) bans the hijab (which will never happen), would these groups object? Probably not.  In that country, the hijab is common practice and there is societal pressure for women to wear it.  Whereas in France, some woman have argued that the veil is an assertion of their identity as Muslim and distinguishes them from the majority group.  Additionally, when a state that is Muslim-majority bans the headscarf (like Turkey), there may be different motivations at play than when a state like France (where Muslims are a minority) bans the hijab.  When discussing the question of whether or not the veil ban promotes women’s equality, it is important to take the country context into account.  Even if we assume that the full veil is repressive to women in certain countries, when that practice is imported into another country by immigrants, its significance changes.

ILG Editor and Professor Milena Sterio, a leading expert on international law, has been promoted to the position of associate dean for academic enrichment at Cleveland State University’s Cleveland-Marshall College of Law.

Sterio, the Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, has been a faculty member at Cleveland-Marshall since 2006, and is nationally known for her work on maritime piracy.

“Professor Sterio brings a set of competencies that are particularly well-suited to this position as it has evolved over the last few years,” said Cleveland-Marshall Dean Craig M. Boise. “I look forward to her working with our faculty to enrich both the internal and external intellectual life of Cleveland-Marshall.”

As a maritime piracy law expert, Sterio has participated in meetings of the United Nations Contact Group on Piracy off the Coast of Somalia. She is a member of the Piracy Expert Group, an academic think tank functioning within the auspices of the Public International Law and Policy Group, and is one of six permanent editors of the prestigious IntLawGrrls blog. Sterio has presented her paper on the legality of the United States’ use of drones in the war on terror to groups throughout the country, including at the International Criminal Law Interest Group Annual Workshop.

In the spring of 2013, Sterio was selected as a Fulbright Scholar, spending the semester in Baku, Azerbaijan, at Baku State University. While in Baku, she had the opportunity to teach and conduct research on secession under international law as it related to the province of Azerbaijan, Nagorno-Karabakh.

 

The Board of Immigration Appeals on February 7, 2014 released a twin set of decisions—Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and –,  Matter of W-G-Rec. 20 26 I&N Dec.20 (BIA 2014)— in which it repackaged what constitutes a “particular social group.”  In order for someone to obtain asylum, she must prove that she has a well-founded fear of persecution based on religion, nationality, race, political opinion, and particular social group.   Survivors of domestic violence must fashion themselves into a “particular social group” to be considered for asylum since gender is not included as a separate category.  Prior to these decisions, a group such as “married Guatemalan women unable to leave their relationships” would be considered a “particular social group,” if it can be shown that the group (1) is composed of members who share a common immutable characteristic, (2) is defined with particularity, and (3) has “social visibility.”  The Board’s recent decisions changed the requirement of “social visibility” to “social distinction.”

Many have pointed out that victims of domestic violence found the “social visibility” requirement difficult to satisfy, because such victims are not typically clearly visible in society.  (See for example, Fatima Marouf, “The Emerging Importance of Social Visibility in Defining Particular Social Group, 27 Yale Policy Review 47(2008)).  In adopting the “social distinction” concept, the Board rejected the UNHCR and other advocates’ position that the Board return to the test it articulated in 1985 in Matter of Acosta, which included only the immutable characteristics requirement.  In other words, they wanted the Board to remove the “particularity” and “social visibility” requirements all together. In response to the new Board decisions, the National Immigrant Justice Center recently issued a statement saying that “the new BIA decisions undermine U.S. obligations to protect asylum seekers.”

Claiming asylum for domestic violence survivors is like putting a square peg in a round hole.  The standard for asylum used in the United States comes from the 1951 UN Convention Relating to the Status of Refugees, which never anticipated these kinds of claims.   Acknowledging that domestic violence should entitle someone from asylum, in 2000, the DOJ proposed regulations that articulated clearer asylum standards. However, to date no final regulations have been released.

Whether or not the standards articulated in the new BIA decisions will benefit survivors of domestic violence is not entirely clear, but there is at least one success story.  The Cleveland immigration court applied the new standards to grant asylum to a domestic victim. The opinion entered on February 24, 2014. To view the Cleveland case click here. The truth is that there will continue to be inconsistent immigration judge decisions and those domestic violence victims who appeal will be placed in limbo by the Board until the U.S. government articulates a coherent policy.

This piece was re-posted from a new blog called “Human Rights at Home” which can be found at: http://lawprofessors.typepad.com/human_rights/2014/03/domestic-violence-survivors-and-board-of-immigration-appeals.html