Launching a Global Campaign Against Gender Apartheid in Afghanistan

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Time to act, UN Human Rights Committee

Afghanistan, which ratified the ICCPR in 1983, was last reviewed by the UN Human Rights Committee in 1995 – and it was a truncated review at that. The Afghan head of delegation was unable to be present due to delays en route, so the Chair suspended the review that had barely begun, saying that consideration of the report would be resumed at a subsequent meeting.

No subsequent review has ever taken place. Instead, there has been one postponement after another, as shown by the timeline below.  Why the neglect by the premier human rights treaty body authorized to monitor compliance with civil and political rights?  

Prompted by concerns we heard from Afghan women human rights defenders and Afghan human rights defenders more broadly, three of us wrote to the Human Rights Committee last week urging them to schedule a review of Afghanistan without further delay: Felice Gaer, Former Vice Chairperson and member, Committee against Torture, and Director, Jacob Blaustein Institute for the Advancement of Human Rights; Karima Bennoune, Professor of Law, University of Michigan, and immediate past UN Special Rapporteur in the field of cultural rights; and yours truly, Stephanie Farrior, professor of international law for 30 years and past Legal Director of Amnesty International. We await a response. The Committee has reportedly already set its calendar of reviews for the next several years. If a review of Afghanistan is not already scheduled, it should be, and without yet more delay.  

Afghanistan has seen significant political turmoil in the years since that partial Committee review held in 1995 – from the Taliban, to the Karzai government after the US invasion and now, back to the Taliban, which is not recognized by the United Nations as the official representative of Afghanistan. This has not prevented other UN human rights treaty bodies from holding a review of the implementation of their treaty in Afghanistan (see below).

The Human Rights Committee did schedule review of Afghanistan for March 2000, but the government requested and received a postponement.  

The review was next scheduled to take place in October 2001, and in the preceding session in May, the Committee developed its “List of issues prior to reporting.” However, the events of 9/11 intervened, and the Committee decided “to postpone review of implementation of the Covenant in Afghanistan to a later and more favorable date.” A concern expressed in that meeting by the late Sir Nigel Rodley and shared by other Committee members at the time was that their statement postponing the review “should not be interpreted in such a way as to suggest that the Committee will henceforth no longer consider the reports of States Parties in which an armed conflict is taking place.” Christine Chanet added that the presence of armed conflict does not only not prevent consideration of a state party, but it actually “adds to the concerns of the Committee.”

It was not until a decade later, in July 2011, that a review of Afghanistan was once again on the table, when the Human Rights Committee announced it would develop a “List of issues prior to reporting” at its July 2012 session.  It did indeed adopt a list of issues at that 2012 session, but in the ensuing ten years, no review of implementation of the Covenant in Afghanistan was ever scheduled or held.

Today, the human rights situation in Afghanistan is dire. For women and girls, as a journalist quoted in Amnesty International’s recent report has stated, “it’s death in slow motion.” For some, it’s more than one can bear. According to UN News: “The situation for women is so desperate in Afghanistan that they are committing suicide at a rate of one or two every day, the Human Rights Council has heard.”

In light of the dire situation in Afghanistan, the Human Rights Committee could take action and schedule a long overdue review of the civil and political rights situation there. The Committee’s Rule of Procedure 70 allows for review of a state party in the absence of a report. In this case, the last report submitted by Afghanistan could be updated with the significant body of information documented by UNAMA, the UN Special Rapporteur on Afghanistan, and human rights NGOs.  In addition, Afghan human rights defenders are keen to submit shadow reports. They are also keen to see every human rights mechanism engaged to the extent possible, to keep up international attention and pressure.

In a situation where the de facto entity in control of a state’s territory is not a recognized government, the Committee could nonetheless follow normal procedures and send an invitation to participate in a review to the office of the Permanent Mission of Afghanistan in New York. The UN-recognized (former) government officials could attend, present an oral (or written) report – or not. It should be noted that Rule of Procedure 68.2 allows for consideration of a report if the state party does not send a representative.   

The timeline below shows year after year after year of postponements of a review of Afghanistan by the Human Rights Committee. Other treaty bodies have engaged in periodic reviews of Afghanistan in the years when the Human Rights Committee was not scheduling a review, most recently the Committee against Torture in 2017-2018, and CEDAW in both 2016 and 2020.

It is time for the UN Human Rights Committee to re-engage, and schedule a review as soon as possible, given the critical situation there and the importance of continued international scrutiny. The record of neglect by the Human Rights Committee means that there has been no authoritative analysis of the implementation of the Covenant on Civil and Political Rights in Afghanistan for 27 years. The Committee should correct this situation promptly.  

October 1991: Afghanistan submitted 2nd periodic report to the UN Human Rights Committee. 

October 1995: Committee began review of the 2nd report, but soon suspended the review due to the absence of the head of delegation caused by travel delays. “The Chairman said that consideration of the report of Afghanistan would be resumed at a subsequent meeting,” and the Committee requested the Government of Afghanistan to submit information updating the report before 31 May 1996 for consideration at” its session in July 1996.  No additional information was received.

The next mention of Afghanistan in Summary Records after October 1995:

October 1999: The Committee invited Afghanistan to present its report at its March 2000 session. The State party asked for a postponement.

November 1999:  The Committee discussed and adopted a list of issues to be taken up in connection with the consideration of the second periodic report of Afghanistan.  Materials used in the preparation of the list included the report of the Special Rapporteur on the situation of human rights in Afghanistan and a report by Amnesty International on the situation of women in Afghanistan.

May 2001: The Committee decided to consider the situation of Afghanistan during its session in October/November 2001, applying Rule of Procedure 68.2, which allows for consideration of a report if the state does not send a representative.

October 2001: The Committee decided to postpone consideration of Afghanistan to a later date, “pending consolidation of the new Government.” “The Committee has very serious concerns regarding the implementation of the provisions of the Covenant in Afghanistan, particularly with regard to the situation of women in Afghanistan, public and extrajudicial executions, and religious intolerance. . . . Despite the fact that, with the current situation of armed conflict in Afghanistan, other serious concerns concerning the protection of the rights guaranteed by the Covenant have been added, the Committee considers that reviewing the report would not be productive in the current situation. [The Chairman] has therefore decided to postpone consideration of the report to a later and more favorable date for the purposes of article 40 of the Covenant.”

Continued postponements: In succeeding annual reports, the Committee duly recorded the previous postponements, but never scheduled a review:

A/58/40(Vol.I)    2002-2003

A/59/40(Vol.I)    2003-2004

A/60/40(Vol.I)    2004-2005

A/61/40(Vol.I)    2005-2006

A/62/40(Vol.I)    2006-2007

A/63/40(Vol.I)    2007-2008

A/64/40(Vol.I)    2008-2009

A/65/40(Vol.I)    2009-2010

A/66/40(Vol.I)    2010-2011

May 2011: “Afghanistan accepted the new optional procedure on focused reports based on replies to the list of issues prior to reporting. It is thus waiting for the Committee to adopt a list of issues prior to reporting.”

July 2011:  The Committee report notes: “The timetable for consideration of reports posted on the Committee website would . . . take account of the States parties for which a list of issues prior to reporting was to be adopted in July 2012, namely Afghanistan, Croatia, Israel, San Marino and New Zealand.”

July 2012:  The Committee adopted a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. In the Committee’s July 2012 LOIPR includes the following  “Please provide any other information on measures taken to disseminate and implement the Committee’s previous recommendations (CCPR/C/AFG/CO/2), including any necessary statistical data.”

For those interested in seeing what those previous recommendations were: Per the UN Library Services, “despite the fact that document CCPR/C/AFG/Q/3 clearly mentions CCPR/C/AFG/CO/2, this document symbol is not recorded in any other source or index and according to the historical research above, the second report issued in 1992 was never fully considered – so no formal documented outcome must have been issued.”

Over the ten years that have passed since it adopted the list of issues, the Human Rights Committee has never reviewed implementation of the Covenant in Afghanistan.

2013-2014: The Annual Report notes the Committee’s adoption of a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. “This report has still not been received.”

Note: The Human Rights Committee’s Rule of Procedure 70 allows for consideration of a State Party in the absence of a report.

2014-2019: The next five Annual Reports of the Human Rights Committee stop giving the prior history of postponed reviews, and only mention Afghanistan in the list of states that are 10 or more years overdue in submitting a report.

There is no further mention of Afghanistan in Annual Reports or Summary Records.

Adoption as Secondary to Childbirth: India’s Maternity Benefit Act

The joyous moments of childhood often include parents cheering on their children on their simplest yet the most beautiful achievements. Sadly, not all children are able to share ‘firsts’ or experience the thrill of their gleaming parents on their achievements. These children who are left abandoned or have lost their parents often feel a disconnect with the world, the feeling of not belonging. According to a recent report of National Commission for Protection of Children’s Rights (NCPCR), at least 10094 children were orphaned during the pandemic. Adoption, thus, presents an opportunity for these children to live a happy and secure life. 

Framework of Maternity law in India

In India, firstly, there is no scope of paternal or paternity leave and the leave is limited to the extent of mothers. The Indian legislation is drafted in such a way that it is believed only women have the sole duty of nurturing and taking care of their child. Thus, fathers are kept out of the purview of the legislation of granting paternity benefits. On the other hand, it is often seen that employers refuse maternity leave for adoptive mothers because the law does not mandate it. Adoptive mothers are treated to be a class apart from biological mothers and provide an absolute legislative cover to the latter and an exceptional layer to the former.

Under the current Maternity Benefit Act (1961), according to Section 5(4), a woman is allowed a maternity leave of 12 weeks only if the adopted child is below 3 months of age. If a woman adopts a child who is more than 3 months of age, she is not considered for maternity leave at all. On the other hand, biological mothers are allowed a maternity leave of 26 weeks. The most unsettling aspect is the age limit of the adopted child that is set in the Act. 

After the 2017 amendment, The Maternity Benefits Act has considered adoptive mothers to be deserving of a maternity leave, but the amendment doesn’t solve the cause. Not only is it treating adoptive mothers unequally, but is also snatching away a secured life of the adopted child. Firstly, the age limit of 3 months of the adopted child is keeping adoptive mothers outside the purview of the Act because the adoption process itself is very time-consuming. Secondly, it is disincentivizing adoption of children who are not a newborn baby. Thirdly, it is remiss to think that only children in the 0-3 months of age require continuous care and support. 

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UN Special Rapporteurship on Afghanistan

On Friday 1 April, the UN Human Rights Council relinquished an opportunity to put talk into action and send an important message to the Taliban by appointing what would have been the first woman UN Special Rapporteur on the human rights situation in Afghanistan.   (All those who held the position during its previous existence from 1984-2005 were men.)  

The UN Consultative Group, the body that screens Special Rapporteur applications (made up this year of three men and a woman, representing El Salvador, Malaysia, South Africa and Canada), had short-listed five candidates: four women — three of whom are Muslim or of Muslim heritage — and a man.  As the candidates’ applications show, all five short-listed candidates were well-qualified, all five had relevant experience, and several had considerable direct experience in Afghanistan and other conflict zones.   

CONSULTATIVE GROUP REPORT TO HUMAN RIGHTS COUNCIL PRESIDENT
Short-listed Candidates for the Position of
Special Rapporteur on the situation of human rights in Afghanistan

First nameLast nameNationalityGender
LeilaALIKARAMIIslamic Republic of IranF
RichardBENNETTNew ZealandM
KarimaBENNOUNEUnited States of AmericaF
KamalaCHANDRAKIRANAIndonesiaF
Kimberley Cy.MOTLEYUnited States of AmericaF

Despite having such highly qualified women candidates for the position . . . the Human Rights Council appointed the only man on the shortlist.  Curiously, in sending its recommendations of candidates to the Council president, the Consultative Group significantly understated relevant experience in its bios of the two women finalists among the final three (Leila Alikarami and Karima Bennoune), even omitting any mention of one candidate’s direct experience in Afghanistan.

Moreover, there was virtually no mention of women’s human rights in the Consultative Group’s entire report on this mandate (except for a brief reference in Alikarami’s bio) — including no mention of any experience at all that the candidate they ranked first might have in this area.   This despite the fact that the Council resolution creating the mandate emphasizes women’s rights and calls on the use of a gender perspective throughout the work of the mandate.    

The new mandate-holder, Richard Bennett, does have considerable experience on and commitment to human rights in Afghanistan, and deserves support in his critically important work.  The statement in his application that if appointed he would give priority to the human rights of women and girls is welcome indeed.  One wonders about the message the Human Rights Council sends, though, as it joins a long list of countries and organizations that are sending all-male delegations to Kabul.  The timing is especially unfortunate coming a week after the Taliban refused to reopen secondary schools for girls, reneging on an earlier pledge to do so.     

Anti-LGBTQ+ Protests in Hungary: Limiting Representations of Homosexuality to Minors

In June 2021, the Hungarian Parliament amended various laws that limit the spread of information regarding homosexuality and sex reassignment (H&SR) for juveniles and school children. Among other things, the law: 1) prohibits minors from accessing material encouraging or depicting H&SR or any other type of deviance from one’s sex designated at birth; 2) forbids delivering instruction about the aforesaid information and restricts sex education in registered organizations; and 3) forbids broadcasts exhibiting H&SR while bringing a new rating – Category V (not intended for children) – to any such programming. On August 6, 2021, the scope of this decree was expanded to include places near churches and also in schools. 

These modifications are due to rising anti-LGBTQ+ views, which fall on the heels of previous legislative backsliding, including: 1) restrictions on same-sex marriage, as well as the heteronormative definition of conjugal relationships and family groups (2013); 2) university prohibitions on gender studies (2018); 3) denial of official gender acknowledgment by substituting ‘gender’ with ‘sex at birth’ in the Civil Registry (2020); and 4) the constitutional restriction on child adoption for unmarried adults (2020). 

Despite repeated requests from the European Commission (EC) and many European Union (EU) legislators, Prime Minister (PM) Viktor Orban’s government refused to remove the modifications. This comes after international condemnation of Hungary’s apparent association of sexual and gender identity [“SGI”] with pornography and pedophilia. In reaction, the EC has initiated a “rule of law” action against the Hungarian administration, claiming a breach of the values of dignity and equality as mentioned under Article 2 of the Treaty on the Functioning of the European Union. Violations are likely to occur for a variety of reasons, including:

  1. Article 1 [dignity], 7 [expression & information], 11 [respect for private life], and 21 [non-discrimination] of the EU Charter of Fundamental Rights for failing to substantiate the damage that such exposure has brought to children’s general well-being;
  2. Article 34 & 56 of the Treaty on the Functioning of the EU by failing to show that the limitations were properly reasoned, non-discriminatory, and ;
  3. Article 3 of the Audiovisual Media Services Directive, which imposes excessive and discriminatory constraints on the open dissemination of audio-visual media across borders; and 
  4. Disproportionate limitations on ‘information community services’ from other Member State under Article 3 of the E-Commerce Directive. Those limits may be enforced for the ‘safeguard of juveniles’ if there is a detriment to the cause or a substantial and grave danger of harm.
  5. Article 10 [ right to freedom of expression] & 14 [ right to non-discrimination] of the European Convention of Human Rights for limiting free discussions about gender identity and sexual orientation out of concern of ‘brainwashing youngsters’, and for expressly labeling LGBTQ+ material as undesirable and immoral.

The latest law of the Hungarian Parliament prohibits problems relating to the LGBTQIA+ population from being presented on prime time media. This has  the consequence of entirely eliminating the opinions of the community from public debate, thereby depriving them of their right to be heard. Similarly, while the amendments affected the rights of LGBTQIA+ people, their opinions were largely ignored during the legislative process. Furthermore, by prohibiting the simple representation of homosexuality to children, the legislation seeks to obscure the population. The purposeful obfuscation of the LGBTQIA+ population undermines its presence in society. As a consequence, familiarity and behaviorals standards are not sufficiently formed, thereby causing the interplay to be defined by the status quo inequality. 

Similar to Russia’s controversial ‘Gay Propaganda’ Law [2013], which, prohibited minors from being encouraged to engage in ‘non-traditional sexual unions,’ these modifications must be subjected to the same level of worldwide outrage and examination. Russian legislation made it illegal to make public declarations or posts about SGI, resulting in the imprisonment of numerous gay rights advocates. The European Court of Human Rights (“ECtHR”) found an infringement of Article 10 [freedom of expression] & 14 [non-discrimination] following the petition of three such advocates. While the Russian government contended that societal acceptance of homosexuality was inconsistent with Russian societal norms and family ideals, the ECtHR cited a broad European agreement concerning the acknowledgment of gender identity and self-determination. The ECtHR found that the administration had failed to show how open homosexuality would have an adverse influence on Russian family ideals and norms. On the contrary, the Court found that sharing impartial information and scientific on SGI has a good impact on public health care and awareness. The right to exhaustive and non-discriminatory sexual education [Article 28], the right to acquire and transmit knowledge and thoughts of all forms [Article 13], and the right to receive contents targeted at devotional, social, physical well-being, and moral [Article 17] are all guaranteed by the Convention on the Rights of the Child, which binds both Hungary and Russia. The ECtHR stated in a detailed dissection of the claims made by Russian attorneys, by passing such laws, the Russian government promotes discrimination and ecnourages hompobhia, which is inconsistent with the values of fairness, diversity, and tolerance in a democratic country”. 

Opponents have compared the amendments with this propaganda, which according to independent experts has exacerbated societal hatred and fueled vigilante assaults against LGBT persons in the EU’s eastern neighbour. Nevertheless, if left unaddressed, the implications of these institutional reforms in Hungary could be disastrous. For one, this kind of nationalist discourse creates in-groups and out-groups, gaining support by inventing imagined concerns to the nation-state.  As a result, the LGBTQ+ group is regarded as a domestic threat as well as a foreign impact. The introduction of the phrase ‘gender ideology’ implies a refusal of fundamental sexual liberty and privacy rights. Conservative nationalists frequently give the phrase a stereotyped connotation, blaming it on so-called ‘Western liberal innovations’ of transgenderism, gender flexibility, and feminism, etc. 

As evidenced by multiple empirical studies performed over the last decade, Hungary’s persistent and intrusive effort against the LGBTQ+ community has left the population incredibly insecure in their own country. In 2010 & 2017, the Hatter Society conducted a comprehensive survey, finding that LGBTQ+ students face constant discrimination in schools.  According to a 2010 study [n=1991], 1 in every 5 students has faced discrimination at school. As per the findings of a 2017 survey, in an online poll of 928 LGBTQ+ students aged 13 to 21, more than 51% & 70% of participants indicated they had heard transphobic and homophobic statements from other classmates, professors, and school personnel regularly or often in the prior school session, respectively. In fact, 35% of those polled stated that the school officials never interfered. In addition, approximately 64% had experienced vocal and 22% had experienced physical abuse at school s due to their sexual identity. More than 56% of individuals who had revealed their sexual identity had been verbally abused (and 19% physically abused) in the prior school session. 

These emotions of uneasiness and insecurity at school can have a negative impact on an individual’s potential to not only achieve academically but also to create effective connections with classmates and participate in intra/inter-school activities. As per the Millennium Cohort Study, prejudice in academic institutions, resulting in a nearly threefold increase in degrees of depression, low-life contentment, and self-harm characteristics in LGBTQ+ adults as contrary to non-LGBTQ+ adults. This not only hinders physical and emotional development, but the atmosphere of disinformation and a lack of discussion produces a stagnant repressive environment for future generations. 

Hungary’s amendments, on the other hand, are certain to collide with the same legal currents that brought down its Russian equivalent. The post-COVID-19 rehabilitation package earmarked for Budapest [a sum of about 7.2 Billion Euros] has been vetoed by the European Commission. While PM Orban contends that the same is true in the case of the LGBTQ+ policy, the European Union has repetitively reiterated that it is founded on Hungary’s failure to follow through on anti-corruption and autonomous judiciary commitments. Hungary, therefore, has only a few months to answer to the European Commission and confronts imminent dangers of being directed to the European Court of Justice for a judgment. As an instant response, Orban pledged to hold a national vote on issues like facilitating gender identity workshops, the accessibility, and promotion of gender reassignment surgery, as well as the exposure of information that may influence a child’s gender identity. Nonetheless, no referendum has been conducted as of October 2021, with questions about its legitimacy still lingering. 

Persistent prejudices and the execution of prohibited legislation, as demonstrated in Russia’s history, are frequently unaffected by the simple favorable outcome of such judicial procedures. It is critical, then, to keep a constant eye out for such new and hidden forms of social tyranny. 

CONCLUSION

The proposed legislative reforms are in violation of international and European human rights principles. Hungary has failed to fulfil its obligations as a member state by passing this law that targets homosexuals. The major argument given for doing so is to ensure that the mental and moral development is preserved. Moreover, in the matter of Alekseyev vs Russia, the ECtHR specifically stated that there is no scientific evidence to support the conclusion that the simple mention of homosexuality has a negative influence on children. The modifications leave no room for anything except one-sided and biased education, allowing stigmatisation and harassment of LGBTQ+ individuals to flourish.

Past Time for Respect for Indigenous Peoples and the Environment

Despite the challenges of 2021, it closed with some important milestones. At long last, the U.N. Human Rights Council recognized “the human right to a clean, healthy and sustainable environment” and appointed a Special Rapporteur to focus on rights in the context of climate change. Additionally, the U.S. officially designated Indigenous Peoples’ Day on October 11. President Biden’s proclamation acknowledges “the centuries-long campaign of violence, displacement, assimilation, and terror wrought upon Native communities” and celebrates Indigenous Peoples’ “resilience and strength” and “immeasurable positive impact . . . on every aspect of American society.”

Violence against Indigenous Peoples and nature is deeply intertwined. For generations, Indigenous lands have been exploited as a “hunting ground” for resources with colonialism propped up by racial and gender hierarchies. In the U.S., Native American and Alaska Native women experience sexual assault at a rate 2.5 times higher than other women, with 86% of perpetrators non-Native men. For example, the oil boom in the Bakken region brought a 75% increase in sexual assaults and a 53% increase in violence with the influx of hundreds of transient male workers, housed in “Man Camps” near Indian territories. Moreover, with strained infrastructure and Indian tribes lacking jurisdiction to prosecute non-Indian defendants, there is often no accountability. Indigenous leaders have highlighted the link between sovereignty over land and bodily autonomy.

Against this backdrop of abuse, the climate crisis is displacing Indigenous communities at increasing rates and leading to economic instability, land disputes, and disruptions in social safety nets, contributing to increased risk of gender-based violence. Moreover, Indigenous leaders have been at the forefront of sounding the alarm on climate change and may also experience violence as retaliation for their actions as human rights defenders confronting environmental degradation. Further, the COVID-19 pandemic has disproportionately impacted Indigenous Peoples, aggravating preexisting inequalities and resulting in heightened rates of infection and  increased environmental degradation, economic insecurity, and gender-based violence, threatening Indigenous cultures. 

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Women Refugees and Gender Persecution

The UN AudioVisual Library invited me to give a lecture on Women Refugees and Gender Persecution. It gives an overview of gender-based violence, the context of forced migration faced by women, the application of the due diligence principle in Refugee Status Determination, assessment of risk, evidentiary issues, credibility determination, gender-related persecution, nexus to protection categories, and the application of cessation clauses and the Internal Flight Alternative. It will be made available on March 7th on the eve of International Women’s Day! Please check the UN AVL website

The Human Rights Brief of American University Washington College of Law published my article titled Examination of the Effects of Deportation as a Result of Revocation of Status Upon the Rights to Non-Discrimination, Family Unity, and the Best Interests of the Child: An Empirical Case from Norway, This article discusses the European and Nordic trend of non-European/Schengen nationals to their countries of origin or transit countries and implementing deportation as a principal mechanism of immigration control. It examines a particular case from Norway resulting from a review of cases involving select nationalities extending back in time beyond five years. This review identified persons who lied about their country of nationality and were subject to revocation of status and deportation in spite of their ties to family and integration within the community. The article discusses the role of the judiciary as a resistant gatekeeper to international human rights, in particular the right to family unity and the best interests of the child, as well as the right to non-discrimination. It calls for reform of review of old cases based on nationality, instead acting only an individualized security risk assessment and the adoption of a human rights based approach to revocation and deportation.

ECtHR’s Lost Opportunities in its Transformative Rulings: Queer Interpretation of Right to Privacy and Protection from Discrimination

European Court of Human Rights © Christian Lemâle

Previous year the European Court of Human Rights [‘the Court’ or ‘ECtHR’] delivered some significant rulings strengthening ECtHR’s jurisprudence on Article 8 and Article 14 of the European Convention on Human Rights [‘Convention’] concerning Queer rights. The author in this article revisits three rulings of the ECtHR to argue that, nevertheless of being progressive rulings, the Court did fall short in addressing some major issues.

Firstly, in AM v. Russia, the Court ruled that Russian Court violated Trans individual’s rights under Article 8 read with Article 14 of the Convention by ending all contact between a trans woman and her children without a balanced and reasonable assertion of the legitimate interests [see here & here].

In the AM case, the Russian authorities and the applicant’s wife argued that the applicant is suffering from Transsexualism and further contended that the applicant’s intention to disclose her gender transition information to her children will impact their mental health and psychological development. This institutionalised prejudice of Russian authorities, nevertheless of ‘homosexuality propaganda law’ being held as unconstitutional in the state, exacerbates the ‘vicious wheel’ connected with prejudiced perceptions against trans individuals and a lack of education and awareness on Queer rights. The Court fails to address this elephant in the room, that how these prejudiced notions could impact the children’s education and perception about their parent’s gender identity.

When addressing the ‘best interests of the children’s, the Court had the chance to conceptualise the children’s right to non-discrimination on the grounds of their parents’ gender identity under Article 2 Convention on the Rights of the Child [‘CRC’], and the right to preserve personal relations and direct communication with both parents continuously under Article 9/3 CRC. Further, the UN Committee on the Rights of the Child General Comment no. 14 also stipulates their right to receive information on Queer Community challenges as well as gender identity and transition under Article 13 CRC and the right to education under Article 28 and, Article 29 of the CRC. Arguably, the ECtHR could have delved into significant length concerning the challenges with utilizing negative preconceptions about transgender individuals to rationalize restraining relationships and communication between transgender parents and their children.

In the second ruling, the Fedotova v. Russia, the Court ruled that Russia’s failure to provide same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form is in violation of Article 8 & 10 [see here and here].

Nevertheless, the application was brought for recognition of same-sex marriage, the Court doesn’t feel adequate to discuss Article 12 [‘right to marry’] anywhere in the ruling. The Court concluded that the moral views of the majority cannot be used to deny sexual minorities access to forms of legal recognition. Taking reference from queer interpretations of the ECHR (here and here), which consider the inherent heteronormative (i.e. bi-genderism) notion of most of the Convention’s rights and how to transgress this dialectic. Regardless of the fact (which is still unclear), whether the applicant didn’t include Article 12 or not, the Court itself could have incorporated Article 12 of its own volition.

Not only Supreme Courts of other jurisdictions [the US and South Africa] but also the international institutions like Inter American Court of Human Rights [‘IACtHR’] have rejected the anti-majoritarian notion. It can be argued, that the Court’s rationale of Schalk and Kopf v. Austria, i.e. the appreciation of the majority opinion, remains viable. Furthermore, it can be argued that the ECtHR entirely embraces Article 12’s “heterosexual structure,” principally rendering the article inapplicable to same-sex relationships.

The second issue is the necessity of the non-discrimination principle under Article 14. The applicants did claim on Article 14, however, the Court concluded that it was not relevant because it heretofore ruled the violation of Article 8. Since Dudgeon v. UK, it has been a well-established tenet of the ECtHR that rules that discrimination does not need to be investigated if it is not “a crucial element of the case“. It is unrealistic to contend that the lack of legal recognition does not have a severe discriminatory intent in a nation where same-sex individuals are continuously stigmatised and marginalised, where even the Constitutional Court supported the law on prohibition on “homosexuality propaganda.”

Lastly, in the  X v. Poland case, the Court ruled that there had been a violation of Articles 8 and 14 of the Convention after the domestic courts had refused to grant custody of the child on the grounds of the mother’s sexual orientation [on mother’s relationship with another woman].

Nevertheless, the observations that the Court concluded in its rationale, which was first observed in the Hoffmann v. Austria and have been repetitively reaffirmed in many of its rulings about allegations of discriminatory treatment against divorced parents, the Court overlooked an outstanding opportunity to state unequivocally that a parent’s sexual orientation does not influence their parental capabilities. The Court could have gone a step forward like it did in Vojnity v. Hungary, where the Court made clear that parents’ religious beliefs per se cannot influence their capacity to raise their children.

In Atala Riffo v. Chile, the IACtHR concluded that the Chilean Courts’ judgement to take children from their homosexual mother’s custody based on her sexual orientation was discriminatory, emphasising that ‘an abstract reference to the child’s best interest… without specific proof of the risks or damage to children that could result from the mother’s sexual orientation’ is not acceptable’

What is more disappointing is that the third-party intervention also highlighted Poland inequalities and prejudices in legal and practical matters concerning rainbow families and the attitude towards the Queer community being negative and Queerphobic. Later, the same was also emphasized by Judge Wojtyczek in his dissenting opinion. However, the Court still neglected to address this concern.

Conclusion: The Test Continues

These judgements are undoubtedly significant and are progressive in protecting trans parents’ rights, same-sex marriage recognition and discrimination on gender identity & sexual orientation. The author doesn’t question their contribution, however, the abovementioned arguments do signify the ECtHR’s inherent narrow approach in Queer Interpretation of Article 8 and 14. The ECtHR’s upcoming opportunities here, here and here, will further demonstrate the extent to which the Court is inclined to tread unprecedented ground in terms of acknowledging rainbow family relationships.

Hilary Charlesworth elected to International Court of Justice

Delighted to report that the UN General Assembly and UN Security Council today elected Hilary Charlesworth to the International Court of Justice, to fill the seat prematurely vacated due to the untimely death of James Crawford (see previous IntLawGrrls post here). The appointment, which takes immediate effect, brings to four the number of women sitting on the 15-judge court.

>> Heartfelt congratulations, Hilary! <<

Question for the UN Human Rights Council: So, should only men apply?

At its session concluded earlier this month, the UN Human Rights Council established two new country rapporteurships, one on Afghanistan, and one on Burundi.  The call for applicants has now been posted. However, even before any applications have been collected and reviewed, the Office of the High Commissioner for Human Rights seems to have already decided that both appointees will be men, based on the Name of Mandate-holder column (click screen shot below to enlarge). They’ve done this for the two thematic mandate openings, as well.

UPDATE on 29 October 2021: I see that today the OHCHR has now fixed this issue on the country rapporteur page by removing the “Mr.” from the two open positions in the Mandate-holder column, and on the thematic rapporteur page it has removed the “Mr.” from this column for the newly-created thematic rapporteurship on climate change, but has still left in place the “Mr.” in the opening on the Working Group of Experts on People of African Descent.

FURTHER UPDATE, 5 November 2021: The OHCHR has now removed the remaining “Mr.” from the vacancy listing in the Mandate-holder column on the thematic procedures webpage.