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.

Chronicles of an Unsung Village:  Analysing the legality of a Chinese Hamlet in Arunachal Pradesh through an International Law Perspective 

The term “territorial integrity” has a broad definition, embracing both territorial sovereignty and territorial preservation. The principle’s origins may be traced back to the Treaty of Westphalia, which established the territorial integrity and non-intervention principle as two key principles in international law in 1648. The idea of territorial integrity is incorporated into the UN Charter’s first chapter, as evidenced by the phrase “All members shall refrain from threatening or using force against the territorial integrity of any state…”

Many international treaties, such as the Organisation of Arab States (1948), the African Union (2000), and the Helsinki Final Act (1975), emphasise the need for territorial integrity protection. While highlighting the significance of a nation’s territorial integrity in his magnum opus, Just and Unjust Wars, Michael Walzer noted that it is founded on the assumption of non-interventionist approaches by states to safeguard a nation’s internal as well as external sovereignty. It ensures the integrity of a country’s border and denotes a country’s autonomy within its own borders. Unfortunately, nations are often victims of territorial integrity violations, and India is one of them this time. The recent building of a hamlet by China in Arunachal Pradesh, as verified by satellite imagery, poses a significant threat for India’s territorial integrity. “The Chinese foreign ministry has justified this construction on the grounds of construction on its own territory and has labelled it a subject of China’s sovereign rights,” according to media sources. Without a doubt, China has long asserted Arunachal Pradesh as part of its territory; however, India has always denied this claim by asserting sovereignty over the north-eastern state. The author in this article seeks to show that China’s actions amount to a violation of the established principle of non-intervention, a violation of UN Charter Article 2(4) against the background of this unlawful construction .

Violation of the Non-Intervention Principle

China’s building of a hamlet in Arunachal Pradesh, a state under India’s territorial sovereignty, is a breach of the non-intervention principle. The principle basically asserts that no country can influence or engage in the internal affairs of another nation, either directly or indirectly. It is based on the principle of preserving international peace and order while respecting each nation’s geographical boundaries. “The concept of non-intervention is a consequence of the principle of sovereign equality of States since it bans States or groups of States from intervening directly or indirectly in the internal or external affairs of other States,” the ICJ said in Nicaragua v. United States. In the Lotus Case (France v. Turkey), the PCIJ said that “the first and main restraint placed by international law upon a state is that a state may not use its authority in any form in the territory of another state.” As a result, every State must be able to conduct its activities without intervention from the outside world. The concept is fundamental in international law and it has been designated as a ‘jus cogens restriction,’ as also shown by the UN Charter and the judgements in the Nicaragua and Lotus cases, in other words, the concept has been elevated to the level of customary international law, and non-compliance is disallowed, subject to specific limitations. Scholars have often used terms like “sovereignty,” “state dignity,” “inviolability of state territory,” and “jus cogens” to emphasise the principle’s critical role in preserving a nation’s territorial integrity. The ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 1965, G.A. Res. 2131 (XX)’ also recognises it and by the International Court of Justice in the issue of Armed Activities on Congo’s Territories (DRC v. Uganda). China’s non-interventionist policy is constantly criticised, notwithstanding its importance.

China, without a doubt, has strongly proclaimed the non-interventionist stance at the Bandung Conference and on countless other occasions, but its interventionist acts have exibited that there is a contradiction between China’s words and deeds. China, as the world’s economic and military superpower, has often crossed international borders to further its own objectives. Similarly, China has engaged in “quiet intervention” by erecting Hamlets on Indian soil, thus intervening in India’s internal issues. China participates in certain interventions quietly, but refuses to use the word “intervention” to excuse its intrusive behaviour. China is promoting itself as a “New Assertive China” in the guise of constructive involvement. As a result, it would not be inaccurate to remark that China’s uncertain foreign policy is a double-edged sword. On the one hand, it has the potential to provide the best possible results, on the other side, it is frowned upon.

The violation of UN Charter’s Article 2(4)

Two cornerstone concepts of international law are reflected in Article 2(4) of the UN Charter: first, the principle of non-intervention, and second, the sovereign equality of all countries. The usage of the phrase “refrain from using force against territorial integrity” in Article 2(4) of the UN Charter encompasses unlawful expansion into the borders of other states as well as cross-border occurrences that infringe on the nation’s territorial sovereignty. Applying this Article to China, as a UN Charter member, the building of a village in Indian territory of Arunachal Pradesh is comparable to cross-border unlawful conduct, thus breaching India’s territorial sovereignty and the UN Charter’s aims, as defined under Article 2(4) of the UN Charter. Furthermore, China cannot use Article 51 of the UN Charter’s right of self-defence mechanism since the condition of a “armed attack by another nation” is obviously lacking in the present situation, as India has not initiated any kind of military attack against China’s village development.

Conclusion

In conclusion, China has placed a question mark on the implementation of the above cited principles by establishing an apparent Hamlet inside India’s geographical boundaries, based on a study of a globally recognised legal framework to safeguard a country’s territorial integrity. The alleged Sino operation has not only violated India’s sovereignty in the area, but also the recognised principle of non-intervention, as well as the UN Charter’s Article 2(4). The well-established concept of Non-Intervention, as its name indicates, demands a state to refrain from interfering in the internal affairs of another state, either directly or indirectly. As a signatory to the United States Charter, China is obligated by its regulations, which stipulate in Article 2 that the principles of non-intervention and sovereign equality of all nations are the cornerstones of international law. China, on the other hand, has failed to comply with both. China has even gone so far as to breach other Treaty duties, including the requirement in the Declaration on Friendly Relations, the Declaration on the Right to Development, and the Manila Declaration that nations maintain each other’s territorial integrity. Though the Indo-China Border Dispute extends back centuries, the Sino side’s continued violations of international law reveal that diplomatic discussions have been ineffective, and there is a foreshadowing of a catastrophic confrontation to come.

To build a more equal global system, the UN General Assembly must first turn to remedying the UN’s own past human rights violations

To build a more equal global system, the UN General Assembly must first turn to remedying the UN’s own past human rights violations

As the United Nations (UN) General Assembly, the main deliberative and policy-making body of the UN, meets this month to address and debate the most pressing issues around the globe, it must finally ensure reparations to survivors of human rights violations in Haiti who continue to live without justice and restitution and for which the UN bears responsibility.

The overall theme for the meetings includes revitalizing the UN and respecting the rights of people. UN Secretary-General Guterres wants us to re-imagine the international system in the wake of COVID-19 and to address inequality by reforming global institutions like the UN to ensure power, wealth, and opportunity are shared more fairly. While these ambitions are commendable, the UN’s rhetoric does not line up with its (in)action. Among its other moral abdications, the UN has failed to take meaningful responsibility and offer restitution for human rights violations in Haiti, most notably with respect to a deadly epidemic that it caused and sexual exploitation and abuse (SEA) of vulnerable women and girls perpetrated by its peacekeeping troops. The UN’s calls for a fairer global system and respect for human rights cannot hold water when they are failing to deliver on accountability to populations it is meant to serve.

The many challenges facing Haiti in the fulfilment of its population’s human rights are rooted in the policies of, and engagement by, foreign states and non-state actors. Of major concern is that foreign actors often fail to take responsibility where they don’t deliver on their promises and where their work directly causes more suffering. 

For example, the UN’s fifteen-year long peacekeeping presence in Haiti that ended in 2019 resulted in several human rights violations. In October 2010, ten months after a catastrophic earthquake, UN peacekeepers introduced cholera to Haiti, which had not previously had the disease. The result was one of the largest and deadliest cholera outbreaks of the 21st century that caused at least 10,000 deaths and infected almost a million. Families were further ravaged by the financial burdens of seeking medical care and losing breadwinners. In what one senior UN human rights official has called “the single greatest example of hypocrisy in our 75-year history,” the UN failed to accept legal responsibility for the epidemic, resulting in a pitiful response that has provided no compensation to victims, in violation of their internationally recognized right to effective remedy

The UN’s failure to provide redress for cholera victims has meant that Haiti was still recovering from cholera when COVID-19 hit and when, on August 14 of this year, a 7.2 magnitude earthquake struck its southern peninsula. The continuing devastating impacts of the epidemic on thousands of Haitian families has contributed to the country’s extreme vulnerability to man-made and natural disasters

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

I am happy to announce the publication of my book. It traces the evolution of peace as a normative value within the region. It examines challenges presented by structural inequality, corruption, and exclusionary practices made evident by recent protests. I interviewed the judges of the Court who explained the pluralistic nature of peace and their quest to provide a sustainable gendered peace through innovative reparation orders and recognition of the justiciability of socio-economic rights.

Cecilia Bailliet’s book is an insightful view on the relationship between peace, as the core value of international law, and regional human rights law in Latin America. Her meticulous analysis of legal doctrine, international norms, history, and current human rights challenges, coupled with first-hand knowledge of the Inter-American Court of Human Rights, brings to light new understandings of how the Court articulates regional norms and principles on peace and human dignity. Anyone interested in Latin American human rights law should read Bailliet’s work.’
– Jorge Contesse, Rutgers Law School, US

https://www.e-elgar.com/shop/gbp/the-construction-of-the-customary-law-of-peace-9781800371866.html

CEPAZ/UPEACE Webinar on the Role of the Security Council and other UN bodies in the Venezuelan situation


The United Nations Security Council has the primary responsibility of maintaining international peace and security pursuant to the powers granted in Chapters VI, VII, and VIII of the Charter. At the core of this competence to decide on non-coercive and coercive measures is the construction of what constitutes a threat to international peace and security according to Article 39 of the Charter. Although initially threats to international peace and security referred almost exclusively to conflicts between states, currently it could also refer to situations within states, including civil wars, humanitarian crises, and coups d’état. Nevertheless, there is still difficulty in conceptualizing the role that the international community can have, especially through the action of the Security Council, when atrocities occur at the hands of a government within state borders without a nexus to an armed conflict.
The response given by the Security Council and other UN political bodies to the situation in Venezuela serves as an example of these contentious issues. Venezuela is currently suffering one of the worst humanitarian crises in the world. The country has experienced 7 years of economic contraction, hyperinflation, political polarization and institutional challenges, which have caused large-scale human suffering. OCHA has estimated that there are 7 million people in need in the country, and according to ACAPS this number reaches more than 13 million. The severity Index of the Venezuelan crisis has been estimated at 4.1/5, which is considered as very high and is similar to the index of other crises which have gotten a stronger response by the international community, namely Syria (4.9), Myanmar (3.5), Libya (4.2) and Yemen (4.6). In spite of the gravity and complexity of this crisis, there has not been an appropriate response from the international community. The 2020 Venezuelan Human Response Plan was one of the world’s lowest funded.

Importantly, the Security Council and other political bodies of the United Nations have failed to play an important role in its resolution. The Council has met nine times to discuss the situation in Venezuela but has not managed to provide a unified response to support Venezuelans in finding a solution to the crisis. This lack of response may be partly given to the fact that the situation is understood primarily as a domestic issue where the principles of sovereignty and non-interference trump the responsibility to protect even in the face of mass atrocity crimes. An ineffective response from the international community in the face of a humanitarian crisis and gross human rights violations has a direct impact in exacerbating the situation. States continue to commit atrocity crimes if they calculate that they will be protected from a strong response by international actors and that the cost of breaching human rights is bearable.
The seminar addressed the concepts and theoretical analysis which would allow the understanding of the humanitarian and political crisis in Venezuela as a threat to international peace and security. The event was moderated by Mariateresa Garrido and included presentations by Professor Cecilia M. Bailliet, University of Oslo, Norway, Adriana Salcedo, UPeace Costa Rica, and Richard Gowan, UN Director, International Crisis Group. The webinar is available here

Interview with Jaime Todd-Gher (Part-1)

Jaime Todd-Gher is a human rights lawyer specializing in issues of gender, sexuality, and health. She is working as an Independent Consultant and a Reproductive and Sexual Health Law Fellow with the University of Toronto, International Reproductive and Sexual Health Law Program, Faculty of Law. She recently worked as a Legal Advisor and Strategic Litigation Specialist with Amnesty International. She has also worked as a Human Rights Advisor and Programme Officer with the WHO and UNAIDS, and in the Global Legal Program with the Center for Reproductive Rights. Jaime regularly engages in human rights litigation and advocacy before United Nations and regional human rights bodies. She has also served on the Board of Directors for the AIDS Legal Referral Program and the National LGBT Bar Association and is currently a sitting Board Member for Women Enabled International.

Jaime holds an LL.M. in International law and gender from American University, Washington College of law, a J.D. from the University of San Francisco, School of Law, and a B.A. in sociology from the University of California, Santa Barbara. I had the honor of interviewing her. I thank her for this meaningful conversation. The interview is transcribed below.

Question: As per your observation, do you feel women in today’s time are more aware and vocal about their sexual and reproductive rights? What do you think led to this change?

Answer: Yes, I do think that women in many contexts are more mobilized today. More and more women are completing primary, secondary and collegiate education, which is a significant source of empowerment. We are also seeing a rise in progressive movements. There is a collective energy around making change. However, what I really see as a key factor leading to an increase in mobilization is the retrenchment of women’s rights that we are witnessing around the world. This is compelling women to take to the streets, to file lawsuits, to go to the media, and to demand their rights. So, in essence, a lot of our mobilization is reactionary, which of course is necessary.

We are also seeing a rise in nationalism and anti-gender movements that ascribe to the notion that gender diverse individuals are destroying the nuclear, heteronormative family, a re-assertion of women’s purported “rightful role” as mothers and caretakers, and law and policy reform explicitly aimed at restricting access to contraception, abortion, and comprehensive sexuality education. All of this leads to a collective feeling of women’s rights being under attack. I really think that this has given women, especially younger women, a motivation to push back because this is not happening in just one country or one region, but worldwide. So, despite all the positive developments we have seen over the years, I do think there is a retrenchment of women’s rights which is significant, so we must stand up!

Question: Do you think the international norms and standards around sexual and reproductive health and rights are up to mark?

Answer: I certainly think that there has been a remarkable evolution of international norms and standards around sexual and reproductive health and rights in the past few decades. We are light years ahead, in terms of seeing an explicit articulation of sexual and reproductive rights as core human rights issues that implicate a wide range of states’ international legal obligations. But, of course, there is always room for improvement. Given that women’s rights were not originally conceived as human rights within the original treaties and instruments of the UN human rights system, it continues to be an uphill battle to convince people that sexual and reproductive rights are human rights. This is just the reality we are working in.

While progress has been made, a lot of gaps remain. For example, we still do not have an explicit recognition of personal, decisional and bodily autonomy in the realms of sexuality and reproduction. Our strongest human rights hooks continue to be the rights to health, life, freedom from torture and other ill-treatment, privacy, and equality and non-discrimination. These are useful and compelling advocacy frames, but women’s rights movements will be stronger and more powerful once we can gain widely accepted recognition that women, girls, and all people who can become pregnant have full autonomy over their bodies, sexualities, and reproduction. Until that time, we still have a lot of work to do.

Question: Unsafe abortions are a public health issue. Why is there a level of insensitivity among policymakers and politicians around this issue?

Answer: Unsafe abortions is a significant health and human rights issue. It is one of the leading causes of maternal mortality and morbidity, as well as preventable infertility. Unsafe abortion leads to significant physical and mental harm. One of the most unjust aspects of unsafe abortion is that pregnant individuals are often compelled to resort to unsafe abortions due to restrictive abortion laws around the world, and in many contexts, they can be thrown in jail for years for having an abortion. The same restrictive abortion laws can even lead to women who have suffered miscarriages and stillbirths to being arrested and prosecuted – based on the presumption that they had an abortion.

It is baffling to me that law and policy makers – many of which are men who have never experienced and will never experience an unwanted pregnancy – continue to address abortion with such great insensitivity. I still try to wrap my head around it, but I tend to believe that it boils down to a complete lack of valuing of women’s lives and bodies. I am also astonished by the mental gymnastics that people undertake to think that a pregnant woman and her fetus are separate entities pitted against each other, when, that is just not the case. Only a pregnant person can know and understand whether they are able to bear, birth and raise a child—something that has lifelong implications for their life, and the lives of their partners and families. It is also a matter of patriarchy, sexism, and a dehumanization of pregnant people, which translates to controlling people who do not want to be pregnant because they are “committing a moral wrong”.

Interview with Jaime Todd-Gher (Part-2)

Question: As per your understanding, what could be done so that national governments take the issue of reproductive rights and sexual health more seriously?

Answer: I think, foremost, we need large-scale law and policy reform to remove the vast number of restrictions imposed on the bodies, sexualities, reproduction and lives of all women, children and people who can become pregnant. If we look at the disproportionate number of restrictive laws and policies that dictate our bodies, health, and reproduction, it is outrageous. There is also a need for structural reforms that work against patriarchy which accords greater value and trust to men and boys. By contrast, women, and girls, and really all people who transgress gender norms, are accorded less value and not trusted. Also, like the structural reform that needs to take place to address systemic and institutionalized racism, sexism must be tackled at all levels.

I further believe that community change initiatives to transform gender norms is essential. We can no longer live with the status quo where women’s bodies and lives continue to be the subject of public debate and law and policy making. We are all humans and as a community, men, women, and any person should not be restricted in terms of how they act, live, work, express themselves, etc. We need to think about how we can flourish as a community where everyone’s strengths, interests, health, and rights are equally valid and valued. Along these lines, I think a lot needs to happen in terms of information and education provision, and sensitization around gender. I really believe that we all are born with different attributes, interests, and skills, and that we cannot be compelled to fit into specific boxes and categories, and that should be okay.

Question: You have a wide experience spanning different geographies. Which countries have the most developed legislation related to sexual and reproductive rights? Which countries need to consider this issue more seriously? (It would not require any specific answer in the form of any country’s name if that is not possible. A mention of certain geographical regions or continents would also be helpful.) 

Answer: Legislation related to sexual and reproductive rights can come in many forms, whether it explicitly focus on sexuality and reproduction or whether it has a direct or indirect impact on one’s sexual and reproductive health and rights. One thing I can say for sure is that no one country has gotten it right. Every country has a legal framework that, to some extent, infringes on sexual and reproductive health and rights. There are some countries that more explicitly recognize the autonomy of women and girls to make decisions about their sexual and reproductive health, including some countries in Europe, Latin America, and parts of North America. However, even in these countries, there are laws, policies and practices that create barriers to individuals exercising their sexual and reproductive rights.

Let us consider, for example, Canada where abortion has been fully decriminalized and removed entirely from the penal code. Even there, women and girls still face obstacles to accessing abortion services due to costs, geographic location, race, ethnicity, age and/or Indigenous identity. It is not enough to simply change one law. You must look at the entire legal and policy framework, and its interplay with social, economic, and cultural factors, to assess actual access to abortion services. There are also countries in Europe that have policies that seem quite liberal and call for subsidizing access to contraception and family planning to promote women’s and girls’ control over their fertility, but when you look closer you see that the policy also includes a provision that excludes migrants and refugees from its protections and support, thus having a discriminatory impact on these populations.

I also wanted to mention that we should not simply think about sexual and reproductive rights. Rather we should frame our advocacy and litigation in terms of reproductive justice – which conceives of enabling and empowering individuals to create and nurture the families that they want in conditions where they can thrive. At present, we have legal and other systems that promote reproduction of certain people (often married, heterosexual couples of a certain socio-economic status), while at the same time these systems dissuade or actively work against other individuals from reproducing and forming families, including the poor, the criminalized, black, brown, and Indigenous people, LGBTQ individuals, and people with disabilities (to name a few). So, I think we can miss a lot of human rights issues when we solely focus on ensuring that people can control their fertility. We also need to look at people who are being oppressed and/or prevented from having children as they are not seen as worthy of reproducing, and the structural conditions that prioritize certain individuals and groups in our societies and devalues others.

Question: Recently, the Duchess of Sussex shared that she suffered the miscarriage of her second pregnancy. It has again brought forth an observation that there are very few public conversations about it. Do you think it is high time we stop considering miscarriage as a taboo?

Answer: It is absolutely high time to talk about miscarriage more openly! A vast majority of women around the world experience miscarriages. It is both a common phenomenon and yet a traumatic one. We see people suffering miscarriages alone in silence, not reaching out to their friends or loved ones for support. To make matters worse, as I mentioned before, women and girls can be thrown in jail in some countries for suffering a miscarriage. Its inhumane! I recall facing the tremendous grief of my own miscarriages and then imagining what it would feel like if my life and liberty were also threatened because of my pregnancy loss. I cannot even fathom how difficult that would be.

I also think that there is a fine line between abortion and miscarriage. In essence, they are both a termination of pregnancy. The medication used to induce an abortion is the same medication used to manage a miscarriage in many cases. Abortion and miscarriage are both fraught with sadness, confusion, fear and, in some cases, relief. In both of these closely connected experiences, women and girls continue to suffer alone.

Whether a person is facing an abortion or a miscarriage they deserve to be supported and treated with dignity and respect. We should be talking about these experiences openly so that we can find ways to destigmatize pregnancy loss and termination of pregnancy, to provide better support women and girls and their partners and families, and to ensure that people are no longer facing the pain alone.

Go on! 2020/21 CELI Peace Talks “International Law OUTSIDE THE BOX”

Reading and Reimagining Equality, 20 November 2020

2020/21 CELI Peace Talks “International Law OUTSIDE THE BOX”

Reading and Reimagining Inequality is the first seminar of International Law Outside the Box, the 2020/2021 CELI Peace Talks, the Annual Series of Leicester Law School’s Centre for European Law and Internationalisation. The seminar features a stellar panel of speakers: Professor Gerry Simpson (LSE), Professor Vasuki Nesiah(NYU), Dr Francesca Haig (University of Chester) and Dr Loveday Hodson (University of Leicester). The panel shall discuss the value of literary approaches to international law and social justice, looking at how literature and literary approaches to the world can offer insight into in/equality, including poverty of the (international legal) imagination.

About the CELI Peace Talks:

What is the role of public international law and public international lawyers in contemporary society and across the globe? Is international law “fit for purpose” to address the contemporary challenges to its capacities, authority, ambit, relevance and vision in the 21st century? To many of the worlds’ inhabitants, human and non-human, it seems as if “the “world is on fire” – whether the cause of this impression be inter alia the pandemic, climate change, war, persecution, poverty, fascism, displacement or occupation. In light of the ubiquity of oppression and suffering on the planet, do traditional positivist or black-letter approaches to international law need to be revisited, rethought or refashioned, and if so, to what extent, and to what end(s)? 

This Annual Speakers Series hosted by Centre of European Law and Internationalisation (CELI) at Leicester Law School (UK) explores answers to these pressing questions by thinking about international law “outside the box”. Throughout 2020-2021, we will hold a series of panels of leading scholars and practitioners offering “Outside the Box” thinking about international law. The “Outside The Box” theme will offer innovative ways to rethink and reimagine international law in light of contemporary challenges, including re-examining the actors, practices, sources, institutions, purposes, effectiveness and enforcement of international law. 

The series will host six panels the following salient themes of international legal scholarship and practice: 

1) food, the right to sustenance, and the distribution of resources; 

2) racism, postcolonialism, and the inherent whiteness of mainstream international law; 

3) “inclusion”, “diversity” and the quest for representation; 

4) literature and literary approaches to international law-making; 

5) international relations its interplay with international law; 

6) assassination and the role of violence in the development and maintenance of international law. 

Each panel will be carefully curated and open to questions from the audience. By offering non- orthodox readings and understandings of international legal subjects, issues and approaches based on their experience and scholarship, our speakers will lead the audience outside the often hidden boxes in the field and practice of international law.

Date and time: Friday, 20 November 2020, 18:00-19:30 (GMT)

Venue: Online on Microsoft Teams

The event is free of charge and open to all, but prior registration is required. You will be sent a link to join the event upon registration.

To Book: Please register at https://www.eventbrite.co.uk/e/reading-and-reimagining-equality-tickets-127030338161

Contact: For further information please email the convenors, Dr Vidya Kumar and Dr Paolo Vargiu.

High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

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Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

The Legality of the United States’ Strike on Soleimani

On January 2, 2019, the United States carried out a drone strike at Baghdad airport in Iraq in which Qassem Soleimani, a high-level Iranian military leader, was murdered.  This post will analyze the legality of this particular United States’ use of force under international law as well as under U.S. domestic law.  Moreover, this post will discuss (negative) policy implications of this strike.

International Law

By launching an air strike on the territory of a sovereign nation (Iraq), which targeted a top-level military official of another sovereign nation (Iran), the United States used force against two other sovereign nations.  Such use of force is prohibited under Article 2(4) of the United Nations Charter, and the United States thus violated its international law obligations under the Charter, unless the United States can demonstrate that the military strike was conducted pursuant to a Security Council authorization or in self-defense.  In this case, the United States acted alone, without seeking Security Council approval.  Thus, under international law, the only way that the United States could justify the drone strike and the resulting killing of Qassem Soleimani is through self-defense.

The traditional law of self-defense, as reflected in Article 51 of the United Nations Charter, allows a state to use force in self-defense if it has been subjected to an armed attack.  Moreover, the use of force in self-defense must respect the requirements of necessity and proportionality.  In this instance, even assuming that Soleimani was planning activities which would have been harmful to the United States’ national security interests, the United States had not suffered an armed attack by Soleimani/Iran and cannot rely on the traditional law of self-defense.  More recently, scholars (for a good recap of the law of anticipatory and pre-emptive self-defense, see here and here) and some states (United States in particular) have advanced more aggressive variants of self-defense, including preventive self-defense, pre-emptive self-defense, and the “unable or unwilling” standard.  The George W. Bush administration argued that force could be used in self-defense in a pre-emptive manner, against both terrorists as well as countries which harbor terrorists.  The strike against Soleimani could potentially be justified under pre-emptive self-defense, especially if evidence demonstrated that Soleimani was engaged in activities which posed a threat toward the United States.  However, pre-emptive self-defense is not a widely accepted interpretation of the international law of self-defense; it is not part of treaty or customary international law; even subsequent United States’ administrations have adopted different views on self-defense.  Thus, pre-emptive self-defense remains a controversial interpretation of the international law of self-defense.  The Obama Administration adopted a different approach by arguing that the United States could use force in compliance with the international law of self-defense against a state which was unable or unwilling to control non-state actors operating from within its territory, if such actors posed an imminent threat to the United States. Under the Obama Administration view of the right of self-defense, the United States’ strike against Soleimani cannot be easily justified because, even if Soleimani posed an imminent threat to the United States (it remains to be seen whether Soleimani was presently engaged in activities which would have posed an imminent threat against the United States), he was not a non-state actor, but rather an Iranian military official. It is thus questionable that the strike was lawful under the Obama Administration paradigm of self-defense paradigm.  Finally, the United States could possibly claim that it was acting in collective self-defense pursuant to Iraq’s request for help- that Iraq had requested assistance from the United States in acting against Soleimani/Iran.  As of now, there is no evidence that this was the case.  The U.S. troops were in Iraq to lend support in the fight against ISIS, and it appears that the United States launched this attack without Iraq’s knowledge or approval.  In fact, in response to the Soleimani strike, the Iraqi Parliament has voted a resolution which would expel U.S. troops from Iraq.  Thus, the collective self-defense argument has no merit for now.  The only way in which the Soleimani strike can be possibly justified under self-defense would be through the Bush Doctrine/preemptive self-defense.  As argued above, pre-emptive self-defense is not part of well-accepted international law as of today, and the Soleimani strike is illegal under international law.

Domestic Law

Under United States’ law, the President can use force against another sovereign nation pursuant to his constitutional authority as Commander-in Chief, or pursuant to specific congressional authorization to use force.  Congress has not authorized the president to use force against Iran.  Congress did authorize the president to use force against those who planned the September 11 attacks in 2001 (2001 AUMF), as well as to use force against Iraq in 2002 (2002 AUMF).  It is very difficult to link Soleimani to Al Qaeda/Taliban terrorists who planned the 9/11 attacks.  It is equally difficult to claim that Soleimani was operating in Iraq, and that the strike against him would somehow support the U.S. troops present in Iraq pursuant to the 2002 AUMF. Thus, the 2001 and 2002 AUMFs did not authorize the president to use military force in this particular instance.  The relevant question therefore becomes whether the president had inherent constitutional authority to act.  Although considerable debate exists about the scope of presidential power regarding the use of military force without congressional authorization, the executive branch, through several Office of Legal Counsel memoranda, has argued that the president has the authority to use force when: 1) there is an important national security interest in doing so; and 2) the use of force falls short of “war” in the traditional sense.  The executive branch has thus advanced the view that “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” Pursuant to this view, the executive branch has opined that the U.S. military activities in Haiti in the 1990s, the military strikes in Libya in 2011, as well as in Syria in 2018, did not cross the “war” threshold.

Moreover, the War Powers Resolution of 1973 imposes an additional limitation on the president’s authority to conduct military operations without explicit congressional approval.  The War Powers Resolution specifies that the president may introduce U.S. armed forces into hostilities only if there is a 1) declaration of war; 2) specific statutory authorization; or 3) a national emergency created by an attack against the United States.  The War Powers Resolution also requires that relevant military operations be terminated after a defined period of time (60 days), unless Congress specifically authorizes further military action, as well as that the president report to Congress within 48 hours of engaging in hostilities.  In this instance, the Trump Administration has actually provided a classified report to Congress under the War Powers Resolution, two days after the drone strike which killed Soleimani.  As of now, the report is classified and it is impossible to know what type of rationale the administration has provided to Congress. Presumably, the Trump Administration believes that the strike falls within the War Powers Resolution limitations on presidential authority to conduct military attacks as the Administration has provided a post-strike report to Congress.

In light of the above, the strike against Soleimani would be legal under U.S. domestic law only if the strike was in the U.S. national security interest, if the strike did not constitute “war,” and if the strike did not lead U.S. troops into “hostilities” under the War Power Resolution.   It is debatable whether the strike was in the U.S. national security interest now – although many experts agree that Soleimani had been a threat to the United States, it is unclear if he was presently involved in planning attacks against the United States.  Moreover, it is uncertain whether the strike falls short of “war.”  In addition to the executive branch test mentioned above (“prolonged and sustained military operations”), Office of Legal Counsel memoranda have suggested that the use of force may constitute “war” if such force is used against another sovereign nation without such nation’s consent, and if there is a high likelihood of escalation.  In this instance, the relevant question to ask is whether the strike is likely to lead U.S. troops to enter prolonged and sustained military operations with a high likelihood of escalation (the strike was clearly conduct4ed without Iraq’s consent).  If the answer to this inquiry is positive, then the president’s action would be illegal under U.S. law.  Finally, it is unclear whether the military strike against Soleimani constitutes a “hostility” under the War Powers Resolution.  The Obama and the Trump administrations have taken the position that providing aerial refueling and intelligence support to the Saudi-led coalition in Yemen falls short of introducing U.S. troops into “hostilities.” It may be argued that the killing of another nation’s military leader is an action much more likely to lead U.S. troops to enter “hostilities” than an action conducted to provide aerial refueling or intelligence support.  In sum, it is debatable whether the military strike which killed Soleimani is legal under domestic law.  In order to reach this determination, one would have to conclude that the strike was in the U.S. national security interest, that it did not amount to war, and that it would not lead U.S. troops to enter into hostilities.  In light of the ongoing crisis with Iran, and the fact that Iran is state with a strong military, as well as with developing nuclear technology, it is likely that the strike will lead to an escalating military conflict.  Thus, it is more than reasonable to conclude that the strike was not conducted pursuant to domestic legal authority, because the president did not seek requisite congressional authorization and did not have inherent constitutional authority to act.

Policy

Finally, even assuming that the strike was lawful under international and domestic law, the strike did not amount to good policy.  First, the strike may portray the United States as a rogue actor in the Middle East, willing to carry out assassinations against those whom its perceives as enemies.  This image of the United States may limit its ability to build strategic alliances with other countries in the Middle East as well as with other global partners.  Second, the strike may provoke revenge and retaliation by Iran.  Iran could attack Americans in the Middle East, could pursue attacks or other aggressive actions against Israel, an important U.S. ally, and could act through various proxies to destabilize the Middle East.  Iran will likely  re-initiate its nuclear weapons development programs, as it has already announced that it is abandoning the Nuclear Agreement which it had signed with the United States and several European countries; this will pose an additional threat in the region.  Third, the strike has already caused a backlash from other countries and non-state/terrorist actors.  As mentioned above, the Iraqi Parliament has voted to expel U.S. troops from Iraq.  United Nations Secretary-General Antonio Guterres has expressed “deep concern” over the U.S. strike against Soleimani; Russia has condemned the strike, and several Americans were killed in a terrorist attack in Kenya.  Fourth, it is unclear how the strike furthers United States’ national security and foreign policy.  As mentioned above, there is no credible information to suggest that Soleimani was engaged in present-day terrorist activity against the United States, and his elimination does not protect the United States any further, nor does it advance any particular foreign policy in the Middle East.  In fact, the strike is likely to cause conflict in this already volatile region and to potentially drag the United States into another war.  In sum, the strike is illegal under international law, very likely illegal under domestic law, and definitely bad policy.