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The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

Published on July 7, 2017        Author: 

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative. Read the rest of this entry…

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A Sermon from the Bench: Some Thoughts on the ECtHR Judgment in Bayev and Others v Russia

Published on June 27, 2017        Author: 

On 20 June 2017, the ECtHR rendered a judgment in the Bayev and Others v Russia. The judgment brought some much needed good news for LGBT rights. Against the backdrop of persecution of gay men in Chechnya and the steady deterioration of the position of LGBT people in Russia generally, the ECtHR showed its activist colours in ruling that Russia’s so-called ‘gay propaganda’ law violates human rights. The authors enthusiastically welcome and applaud the outcome. That being said, the Bayev judgment at times seems to leave the law ‘behind’ and strays from judicial decision to sermon, in a way that may ultimately undermine the efforts of the Court to move protections forward. Of note in this regard is the wording at times employed by the Court, and its understanding of the boundaries of its competence.

The Bayev case is the result of a challenge, brought by three gay activists, against what is often referred to as Russia’s ‘gay propaganda’ law. Read the rest of this entry…

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Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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SOGI Mandate Passes Third Committee Hurdle

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn. Read the rest of this entry…

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What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory. For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States.  However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report  (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.

Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.

However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, Read the rest of this entry…

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UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

Published on June 13, 2016        Author: 

Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

Read the rest of this entry…

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Embedding Human Rights in Internet Governance

In Resolution 56/183 (2001), the UN General Assembly welcomed the creation of an inter-governmental World Summit on the Information Society (‘WSIS’) to address the digital revolution and the increasing digital divide between the global North and South. During the Summit’s two phases (Geneva, 2003 and Tunis, 2005) a common desire and commitment to build a people-centred, inclusive and development-orientated Information Societyemerged. A key objective was therefore to harness the power of information and communications technology (ICT) to secure the realisation of the Millennium Development Goals (MDGs).

A decade on, and against the backdrop of the recent transition from the MDGs to the Sustainable Development Goals (SDGs), a review of the implementation of the WSIS outcomes is underway. Delegations met last week for the Second Preparatory Meeting of the UN General Assembly’s Overall Review of the Implementation of the Outcomes of the WSIS (‘WSIS+10 Review’). The aim of this meeting was to engage member States and other stakeholders to reach a consensus on critical issues, such as the goals of Internet governance, the relationship between WSIS and development and how to address human rights related to ICT. Oral statements and written submissions served as the basis for developing the current Zero Draft into a Second Draft. The WSIS+10 Review will culminate in a High-Level Meeting on 15-16 December, at which an Outcome Document will be adopted.

Treatment of human rights in the Zero Draft is inadequate. A sub-section on human rights is included within Internet governance and there are other brief references scattered throughout the Draft. However, human rights are not presented as a foundational principle of Internet governance, but are rather narrowly confined to issues of freedom of expression and the right to privacy. In this post and in our response to the Zero Draft as part of an ESRC Funded Large Grant on Human Rights and Information Technology in an Era of Big Data, we argue ]for a more systematic approach to human rights in this process, in order to reflect the full scope of the human rights issues raised by the use of ICT and big data.

Opportunities and Challenges Presented by the Use of ICT and Big Data

Technology has the potential to produce an impact on all aspects of society. The use of ICT is becoming essential to the conduct of government operations, to business, and to individuals’ day-to-day lives. ICT and human rights have become inextricably intertwined, and this is set to continue in line with progress towards the Information Society. This interconnectivity means that ICT has concrete human rights implications, which can be both positive and negative. Significantly, however, the full extent of ICT’s human rights implications are not yet known.

The transformative potential of ICT and big data for the protection and promotion of human rights is becoming increasingly apparent. For example, digital platforms have facilitated local and global dialogue between human rights defenders, minorities and other democratic voices, giving rise to the phrase ‘liberation technology’. Analytics and the use of big data can assist in the identification of otherwise invisible forms of vulnerability and discrimination. This information can be utilised to target interventions and to facilitate efficient resource allocation and can therefore be employed to facilitate the achievement of the SDGs. For example, in relation to ‘good health and well-being’ (Goal 3), the adoption of e-health and m-health (where health services are delivered electronically or via mobile devices) can lead to cost-effective access to health care. Equally, the analysis of data drawn from a significant number of electronic health records (big data-based analytics) can be used to identify appropriate treatments and facilitate early intervention, reducing future health care costs. Technological assistance in the identification of vulnerability and discrimination also facilitates ‘reduced inequalities’ (Goal 10), and can assist in tackling the ‘digital divide’.

However, the inappropriate use of ICT and big data has the potential to interfere with the enjoyment of human rights and thereby undermine the opportunities for realising human rights and attaining the SDGs. Read the rest of this entry…

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Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

Published on July 23, 2015        Author: 

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?

Read the rest of this entry…

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

Published on May 21, 2015        Author: 

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition?

This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10).

Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry. Read the rest of this entry…

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