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.

International Solidarity

Professor Cecilia M. Bailliet has been chosen to Chair the Expert Advisory Group to the UN Independent Expert on Human Rights and International Solidarity Obiora Okafor. Together with other members of the group, Bailliet will prepare a report and suggest revisions to the current draft declaration on the right to international solidarity.

In addition to Bailliet, the group consists of Professor Obijiofor Aginam of the UN University, Professor Mihir Kanade of the University of Peace in Costa Rica, Professor. Vesselin Popovski of the Jindal Global Law School, and Professor Jaya Ramji-Nogales of Temple University.

The group will present its report and recommendations for a revised draft in April 2022 to the Independent Expert who then will share with key states within the UN Human Rights Council in order to make a presentation to the Council for adoption.

The group benefits from the findings provided by the research assistance of UiO law students Solveig Hodnemyr and Julie Skomakerstuen Larsen and Johns Hopkins University student Jeff Baek. The right to solidarity is described as being part of “the second wave of third generation rights” including the right to peace (adopted as a Declaration by the UN General Assembly); the right to development (currently being drafted as a convention); and the right to a healthy environment (recognized by the UN Human Rights Council).

This work complements Professor Bailliet’s current project editing the Research Handbook on International Solidarity to be published by Edward Elgar 2022-23; it includes chapters by other women scholars (including Jaya Ramji-Nogales): Beate Sjåfjell, Alla Pozdnakova, Vasuki Nesiah, Sylvia Bawa, Usha Natarajan, Elizabeth Salmon, Karin Frode and Shyami Puvimanasinghe.

For those of you attending the 2022 ASIL Conference virtually, there will be a session on solidarity in Track 6 on Competing Values of International Law. This roundtable will include Noura Erakat, Maha Hillal, Azadeh Shashahani, Nia Houston, and Cecilia Bailliet.

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.

“Conflicting areas”: Brazilian energy planning at odds with the protection of Indigenous Peoples and the Amazon Rainforest

Fernanda Frizzo Bragato*

Lara Santos Zangerolame Taroco*


Amazon is the largest tropical rainforest globally, and Brazil is home of 60% of its full extension. Although the Amazon rainforest is an essential global repository of carbon, mitigating climate change,[i] it also awakens deep economic interests, given its potential in untapped natural resources and rich biodiversity. 

The advancement of deforestation in the region backs to the 1960s, when the military took power and adopted economic plans to develop and integrate the Amazon into the rest of the country.[ii] In that period, the government boosted the opening of roads, the discovery of minerals, and the beginning of agricultural colonization in region.[iii] For instance, the herd grew from just 2 million in 1970 to around 80 million heads in 2010. Until 1975, deforestation affected less than 1% of the forest, reaching almost 19% in 2013. Social conflicts caused by violent land tenure disputes also intensified in the late 20th century due to the increasing availability of lands through recently opened roads and the intensification of land grabbing. [iv]   

In the civil-military dictatorship, studies discovered “the existence of an immense hydraulic potential in the Amazon region, mainly on the Tocantins and Xingu rivers.” [v]  The government then initiated the construction of hydroelectric power plants in the region, marked by environmental impacts and violation of the indigenous rights.

Since then, Brazil has been largely relying on hydropower as the main source of electricity generation.[vi] According to the National Energy Plan – 2050 (thereinafter PNE 2050), [vii] which came out in 2020, hydroelectricity supplied almost 2/3 of the electricity demand in October 2019.[viii]

In 1988, the new Constitution restricted the exploitation of hydroelectric resources in Indigenous lands, and environmental legislation established protected biodiversity zones. Convention no. 169 of the ILO, ratified by Brazil in 2002,[ix] reinforced this restriction by providing the FPIC with indigenous peoples before undertaking, or authorizing, any resources’ exploitation within their lands.

Brazil also ratified, in 1998, the Convention on Biological Diversity,[x] and created the National System of Nature Conservation Units in 2000, which established several Conservation Units. In 2004, Brazil reserved more than 500 thousand square kilometers for new Conservation Units. This effort resulted in an expressive reduction in deforestation, which fell from almost 28 thousand square kilometers in 2004 to around 5.8 thousand square kilometers in 2013.[xi]

Nonetheless, the electricity plans continued to prescribe hydroelectricity as the primary energy source, including its exploitation in protected areas, such as Amazonian Indigenous lands and conservation units.

The 2030 National Energy Plan (thereinafter PNE 2030), published in 2007,[xii] identified hydroelectric energy as the main source of energy generation, contributing for 79% of total generation, and 70% of the Brazilian energy potential in the Amazon and Tocantins/Araguaia basins. The document mentioned the existence of “issues” to be solved by the National Congress, citing as an example the possibility of “exploitation of energy potential in Indigenous lands”. [xiii]

In addition, the Decennial Energy Expansion Plan 2006-2015 (thereinafter PDEE 2006-2015)[xiv] pointed out that 41% of the Amazon Biome’s total area comprises “conflicting areas.” This expression refers to legally protected areas that make it impossible or difficult to expand energy production. Of the 41% mentioned, 16% are Conservation Units, and 25% are Indigenous lands. Moreover, neither the PDEE 2006-2015 nor the PNE 2030 mentioned Indigenous demands for more land demarcations in the Amazon. The non-demarcation of Indigenous lands leads the main claims and conflicts involving Indigenous Peoples in Brazil.[xv]

The Growth Acceleration Program (thereinafter PAC),[xvi] formulated by the Federal Government in 2007, provided energy infrastructure as one of its four pillars. The PAC maintained the creation of the Belo Monte HPP, and planned to build another 31 plants in the country’s northern region. Recently, the PNE 2050 also predicted the high participation of hydroelectricity as the country’s primary energy source.

Unlike the previous plans, the PNE 2050 mentions the “socio-environmental complexity for hydroelectric expansion,” [xvii] given that the hydroelectric potential is located predominantly in “areas of high socio-environmental sensitivity, especially in the Amazon region, which has half of its extension covered by legally protected areas.”[xviii]

According to the PNE 2050, 77% of the identified hydroelectric potential overlap with legally protected areas in the national territory, such as Indigenous lands or conservation units. Only 23% of the potential capacity of hydroelectric plants does not overlap with protected areas, which makes it difficult to reconcile “the purposes of a Conservation Unit with the expansion of energy supply.” [xix]  However, the PNE 2050 does not propose any alternative for the overlaps.

Considering the 204 conservation units in the Brazilian Amazon, which comprises around 104 thousand hectares,[xx] the energetic Brazilian plans look inconsistent with the urgent need to curb deforestation.  Likewise, deforestation within Amazonian conservation units jumped from 441km2 in 2018 to 953km2 in 2019, increasing more than 110%.[xxi]  In 2019, the Amazon was the Brazilian biome most affected by deforestation, amounting to 63.2% of the country’s deforested area (totaling 770,148 hectares). [xxii] The total deforested area increases every year. It is estimated that  20% of the rainforest has already been deforested, close to the tipping point, rated between 20-25%,[xxiii] in which ecosystemic changes would cause an irreversible cascade effect.

Also, the impacts of the electricity sector in Indigenous lands are severe and irreversible. Among them, the following stand out: the relocation of communities to other regions, often accompanied by disruptions in their livelihood; the flooding of large land parcels, including sacred areas, such as traditional burial sites, and rich biodiversity; the invasion of traditional lands; the decrease of hunting, fishing and the reduction of arable areas; and the proliferation of insect populations, including arthropods and mollusks, leading to increased incidences of malaria and other infectious diseases.[xxiv]

Considering the Brazilian history and the horizon of 2050, the incompatibility between what is defined by the government’s planning and protected areas – called inappropriately “conflicting areas”-  seems extremely clear. Therefore, state planning for the energy sector predicts conflict situations that tend to escalate in the following years, leading to more human rights violations against Brazilian indigenous peoples and increasing deforestation of the Amazon rainforest.


* Professor at UNISINOS Law Graduate Program. CNPQ Researcher. Coordinator of UNISINOS Human Rights Center. E-mail: fbragato@unisinos.br.

* Law PhD Candidate at UNISINOS. Law Master Degree from Vitoria Law School  – FDV. Member of Unisinos Human Rights Center. E-mail: larasantosz@hotmail.com.

[i] HUMAN RIGHTS WATCH. Rainforest Mafias. How violence and impunity fuel deforestation in Brazil’s Amazon. 2019. Available at: https://www.hrw.org/sites/default/files/report_pdf/brazil0919_web.pdf . Access on: Nov 09, 2021.

[ii] PRATES, Rodolfo Coelho, Carlos José Caetano BACHA. Os processos de desenvolvimento e desmatamento da Amazônia. Economia e Sociedade, dez. 2011, v. 20, n. 3 (43), pp. 601-636. Available at: < https://www.scielo.br/pdf/ecos/v20n3/a06v20n3.pdf. Access on Nov 9, 2021.

[iii] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[iv] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[v] MINISTÉRIO DE MINAS E ENERGIA. Centro da memória da eletricidade no Brasil. Disponível em: http://memoriadaeletricidade.com.br . Access on Nov 9, 2021.

[vi] BRASIL. Presidência da República. II Plano Nacional de Desenvolvimento (1975-1979). Brasília, 1974. Available at: http://www.planalto.gov.br/ccivil_03/leis/1970-1979/anexo/ANL6151-74.PDF . Access on Nov 9, 2021, p.65.

[vii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.75.

[viii] U.S. Energy Information Administration. Hydropower made up 66% of Brazil’s electricity generation in 2020. Sep 7, 2021. Avaliable at: https://www.eia.gov/todayinenergy/detail.php?id=49436. Access on Nov 9, 2021.

[ix] BRASIL. Decreto n. 10.088/2019. Anexo LXXII. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D10088.htm#anexo72. Access on Nov 9, 2021.

[x] BRASIL. Decreto n.2.519/1998. Available at: http://www.planalto.gov.br/ccivil_03/decreto/d2519.htm. Access on Nov 9, 2021.

[xi] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021

[xii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiv] MINISTÉRIO DE MINAS E ENERGIA. Plano Decenal de Expansão Elétrica: 2006-2015. Brasília: EPE, 2006. Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Decenal-de-Expansao-de-Energia-2015. Access on Nov 9, 2021.

[xv] CAVALCANTE, Thiago Leandro Vieira. “Terra Indígena”: aspectos históricos da construção e aplicação de um conceito jurídico. Revista História. Franca, v.35, 2016. Available at:http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0101-90742016000100501&lng=en&nrm=is. Access on Nov 9, 2021.

[xvi] MINISTÉRIO DO PLANEJAMENTO. Sobre o PAC. Available at:http://www.pac.gov.br/sobre-o-pac  Access on Nov 9, 2021.

[xvii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xviii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xix] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xx] ISA. Instituto Socioambiental. Placar de Unidades de Conservação. Pará – Belém do Pará. 2020. Available at: https://widgets.socioambiental.org/placar/ucs/674  Access on Nov 9, 2021.

[xxi]  NOTÍCIAS MPF. Ação do MPF requer atuação imediata do governo federal para combater desmatamento na Amazônia. 2020 Available at: http://www.mpf.mp.br/am/sala-de-imprensa/noticias-am/acao-do-mpf-requer-atuacao-imediata-do-governo-federal-para-combater-desmatamento-na-amazonia . Access on Nov 9, 2021.

[xxii] MAPBIOMAS. Relatório Anual do Desmatamento no Brasil – 2019. Available at: https://mapbiomas.org/relatorio-anual-do-desmatamento-do-brasil-aponta-perda-de-12-milhao-de-hectares-de-vegetacao-nativa-no-pais-em-2019 Access on Nov 9, 2021.

[xxiii] LOVEJOY, Thomas and Carlos NOBRE. AMAZON TIPPING POINT. Science Advances, Feb. 2018, Vol. 4, No. 2. Available at: https://advances.sciencemag.org/content/4/2/eaat2340  Access on Nov 9, 2021.

[xxiv] TADEI, W. P., 1994. Proliferação de mosquitos na Hidrelétrica de Tucuruí, Pará. In: A Questão Energética na Amazônia. Avaliação e Perspectivas Sócio Ambientais. Anais do Seminário Internacional, pp. 2-13, Belém: Núcleo de Altos Estudos na Amazônia, Universidade Federal do Pará/Museu Paraense Emílio Goeldi; ARRUDA, M. E., 1985. Presença de plasmódio brasilianum em macacos capturados na área de enchimento do reservatório da usina hidroelétrica de Tucuruí, Pará. Memórias do Instituto Oswaldo Cruz, 80:367-369; BULCÃO, J. A. P., 1994. Proposta de um Modelo para Avaliação do Impacto dos Empreendimentos Hidroelétricos sobre as Doenças Transmitidas por Vetores com Especial Referência à Malária. Dissertação de Mestrado, Rio de Janeiro: Instituto Oswaldo Cruz, Fundação Oswaldo Cruz.; COUTO, R. C. S., 1996. Hidrelétricas e Saúde na Amazônia: Um Estudo sobre a Tendência da Malária na Área do lago da Hidrelétrica de Tucuruí, Pará. Tese de Doutorado, Rio de Janeiro: Escola Nacional de Saúde Pública, Fundação Instituto Oswaldo Cruz.

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.

Event Tuesday 26 October: Mixing Cultures is a Human Right

An impressive line-up of speakers is scheduled to discuss a human rights approach to cultural mixing at a side event on Tuesday 26 October for the final report of UN Special Rapporteur in the field of cultural rights, Karima Bennoune, in an event co-organized with the Coalition for Religious Equality and Inclusive Development (CREID).

Tuesday 26 October 2021  |  12.00-13.30 EST  |  17.00-18.30 BST

Faced with rising claims about monolithic cultures and cultural “purity” around the world, and with rising threats in many contexts, whether of the destruction of the cultural diversity of Afghanistan or the erasure of mixed identities in Japan, the speakers will address how those who value rights-respecting cultural openness and hybridity can defend these practices. How can we preserve histories of cultural mixing in the past and ensure their possibilities in the present and future so as to protect cultural rights for all?

Link to Report and to Annex with the legal framework on cultural mixing and mixed cultural identities.

Link to report press release: Mixing Cultures is a Human Right

SPEAKERS

Karima Bennoune, UN Special Rapporteur in the field of cultural rights and Visiting Professor, University of Michigan Law School (Algeria/USA)

Wole Soyinka, Writer, Winner of the Nobel Prize for Literature, 1986 (Nigeria)

Omaid Sharifi, Artivist and Co-Founder, ArtLords (Afghanistan)

Pragna Patel, Founder and Director, Southall Black Sisters (UK)

Hiroko Tsuboi-Friedman, UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions Expert Facility member (Japan)

Mariz Tadros, Director of the Coalition for Religious Equality and Inclusive Development and Professor of Politics and Development at the Institute of Development Studies (Egypt/UK)

>>> Register here. <<<

This event is co-sponsored by:

Donia Human Rights Center
Feminist Dissent
Southall Black Sisters
Artists at Risk Connection
PEN America

Go On! Book Launch: The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights

You are welcome to register for participation in the book launch of The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights on October 1st at 5pm, live streamed via Zoom:

https://www.jus.uio.no/ior/english/research/news-and-events/events/other/latin-america.html

At present, Latin America may be characterized as a region that has enjoyed an epoch of “long peace”, due to the lack of inter-state wars. Simultaneously we have seen a diametric rise in intra-state violence, evidenced by its ranking as having the highest level of violence in the world, and in particular having the highest levels of violence against workers and women.

This book explores the regional normative evolution of peace from its negative form (absence of violence) to its positive form (equality, non-discrimination, and social justice) and the challenge of articulating a pro homine peace in an increasing authoritarian populist context.

Bailliet has interviewed the sitting judges in The Inter-American Court of Human Rights. The court has established a large amount of case law regarding migrants, indigenous and elderly people’s rights. The court also employs orders demanding protection of human right advocates and other civil society actors participating in protests subject to state repression.

The sitting president for The Inter-American Court of Human Rights, Elizabeth Odio Benito, views women as the heart of peace, and concludes that the court protects peace because it protects women’s rights. At present there is a high level of polarization in the region, evident by societal mobilization and counter-mobilization regarding abortion, access to IVF, violence against women and family rights.

The book seeks to explore to what degree The Inter-American Court of Human Rights is capable of developing a framework for sustainable peace within the context of the triad human rights, democracy and development.

PROGRAMME:

17:00 Welcome and introduction by Cecilia Bailliet

17: 10 Prepared comment by Professor Thomas Antkowiak, Professor of Law and Director of the International Human Rights Clinic at the Seattle University School of Law (live streamed from the US).

17:30 Prepared comment by Professor Benedicte Bull, UiO.

Discussion:   Challenges to peace in Latin America 

Hilary Charlesworth nominated to International Court of Justice

Delighted to see that Australia has nominated Hilary Charlesworth for election to the International Court of Justice.  The election will take place on November 5, 2021, for the seat that opened upon the untimely passing in May 2021 of James Crawford, whose term was to end in 2024.

Hilary Charlesworth, the Harrison Moore Chair in Law and Laureate Professor at Melbourne Law School and a Distinguished Professor at Australian National University, served on the ICJ as judge ad hoc for Australia in Whaling in the Antarctic (Australia v. Japan) (2011-2014), and is currently serving as judge ad hoc for Guyana in Arbitral Award of 3 October 1899 (Guyana v. Venezuela)

Photo from the ILG2 post, Women of the ICJ: Judge Xue Hanqin (China), Judge ad hoc Hilary Charlesworth (Australia), Judge Joan E. Donoghue (USA) and Judge Julia Sebutinde (Uganda), next to a portrait of Judge Rosalyn Higgins (Great Britain), the first woman to serve on the ICJ.

Hilary has twice been recognized for her accomplishments by the American Society of International Law, receiving the award for “preeminent contribution to creative scholarship” with Christine Chinkin for the book they co-authored, The Boundaries of International Law: A Feminist Analysis, as well as the Goler Teal Butcher Award, together with Prof. Chinkin, “for outstanding contributions to the development or effective realization of international human rights law.” In 2021 she received the Distinguished Scholar Award from the International Studies Association, and was previously awarded an Honorary Doctorate by the Université Catholique de Louvain in Belgium.

Hilary Charlesworth has been a member of the Executive Council of both the Asian Society of International Law and the American Society of International Law, and served as President of the Australian and New Zealand Society of International Law. She has been a visiting professor at a number of institutions including Harvard, Columbia, New York University, Michigan, UCLA, Paris I and the London School of Economics, and has delivered the General Course in Public International Law at the Hague Academy. 

Hilary is also a fellow IntLawGrrl (her ILG profile here).  In 2012 she and her co-authors Christine Chinkin and Shelley Wright shared their reflections as they looked back on their pathbreaking article, “Feminist Approaches to International Law,” 85 American Journal of International Law 613-645 (October 1991). Their post capped a fascinating month-long IntLawGrrls series on the work.

Heartfelt congratulations on the nomination, Hilary!

Migrant Worker Women Advancing Gender Equity through the USMCA

Men only, 1835 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women.