In their latest reports to the United Nations Human Rights Council, the UN Special Rapporteur on the right to health and the Special Rapporteur on violence against women addressed the ongoing issue of forced or coerced sterilizations of Indigenous women in Canada’s public healthcare institutions. See Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his visit to Canada, UN Doc. No. A/HRC/41/34/Add.2, 19 June 2019, paras. 83-84; Report of the Special Rapporteur on violence against women, its causes and consequences on her visit to Canada, UN Doc No. A/HRC/41/42/Add.1, 3 June 2019, paras. 58-61. This issue has been gaining increased attention within Canada and internationally; these reports reiterate and build upon the recommendations already made to Canada to take steps to remedy and prevent this human rights violation. See IJRC, Forced Sterilization of Indigenous Women in Canada. The special rapporteurs presented their reports at the 41st Regular Session of the Human Rights Council, which concluded on July 12, 2019, following their visits to Canada in 2018. The International Justice Resource Center (IJRC) has been actively supporting Canadian advocates in their international human rights advocacy regarding the forced sterilization of Indigenous women, and welcomes these latest responses.
Author Archives: IJRC
In a new position paper, the chairpersons of the 10 United Nations human rights treaty bodies have shared their plans to increase the accessibility and efficiency of their work monitoring States’ implementation of their human rights treaty obligations. [OHCHR Press Release] Proposed changes include holding interactive dialogues with States in their own geographic regions (rather than in Geneva), conducting periodic reviews even when the State has failed to submit its report, making the simplified reporting process available to States for all reviews, and allowing civil society members to participate in briefings via video conference. See OHCHR, Treaty Body Chairpersons Position Paper on the future of the human rights treaty body system, July 2019. The position paper, adopted at the treaty bodies’ 31st annual meeting in New York, is the latest development in their ongoing efforts to implement the UN General Assembly Resolution 68/268 on Strengthening and enhancing the effective functioning of the human rights treaty body system. [OHCHR Press Release] These measures are a response to challenges facing the treaty bodies, including limited resources, a growing backlog of State reports and communications, lack of State compliance with recommendations, and varying working methods among treaty bodies.
On June 28, 2019, the 49th General Assembly of the Organization of American States (OAS) re-elected Commissioners Margaret May Macaulay (Jamaica) and Esmeralda Arosemena de Troitiño (Panama) to serve a second full term on the Inter-American Commission on Human Rights (IACHR), and elected two new commissioners, Julissa Mantilla Falcón (Peru) and Edgar Stuardo Ralón Orellana (Guatemala). [OAS Press Release] By January 2020, when the elected commissioners begin their terms, the IACHR’s composition will consist of five female commissioners and two male commissioners – the highest female to male ratio in the history of the IACHR. Mantilla Falcón was endorsed as a qualified commissioner in the 2019 report by the Independent Panel for the Election of Inter-American Human Rights Commissioners, a part of the Initiative on Transparency and Election Monitoring housed at American University’s Washington College of Law. See Mariclaire Acosta, et al., Abridged Version of the Report from the Independent Panel of Experts for the Evaluation of Candidates for the Inter-American Commission on Human Rights (2019). However, the Panel and civil society members objected to Ralón Orellana’s nomination and election, citing concerns over his limited human rights experience as well as his independence and impartiality.
The International Labour Conference of the International Labour Organization (ILO) adopted an “unprecedented Convention and accompanying Recommendation” during its June 2019 meeting, setting new global obligations and outlining measures for ILO Member States to take in addressing violence and harassment in the context of work. [ILO Press Release: Conference] The Violence and Harassment Convention, 2019, a legally binding instrument, covers violence and harassment, including on the basis of gender, in all sectors of the economy and all work-related activities, and expressly indicates that such violence or harassment may amount to human rights violations. [ILO Press Release: Conference] It requires States to implement legislation, training, monitoring, and avenues of redress and support in order to prevent and remedy these practices; it also calls on States to address the particular needs of vulnerable groups and those impacted by domestic violence. See Violence and Harassment Convention, 2019, arts. 6-11. The Convention represents the first new legally binding instrument adopted by the Labour Conference since 2011, when it adopted the Domestic Workers Convention, 2011 (No. 189). [ILO Press Release: Convention] The Convention will enter into force one year after two ILO Member States ratify it, and will come into force for States parties one year after their ratification. See Violence and Harassment Convention, 2019, art. 14.
In July, a number of universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports and country visits. Three United Nations treaty bodies will hold sessions to assess States’ progress regarding the rights of women, civil and political rights, and the prevention of torture. The Human Rights Council will continue its consideration of the overall human rights situations in 15 countries. Three UN special procedures will conduct country visits in July. Additionally, the UN Working Group on mercenaries and the Expert Mechanism on the Rights of Indigenous Peoples will hold sessions in Geneva. Of the regional bodies, the European Committee of Social Rights (ECSR) will be in session and the European Court of Human Rights (ECtHR) will hold two Grand Chamber hearings.
The UN treaty body sessions may be watched via UN Web TV. The public hearings of the ECtHR may be viewed via the ECtHR’s website. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
The Inter-American Court of Human Rights (IACtHR) has published a new agreement providing public access to certain documents submitted to the Court in relation to decided cases. [IACtHR Press Release] Specifically, the Court will now publish on its website briefs and other information on compliance with its ordered guarantees of non-repetition (whether these are submitted by the parties or by other entities or experts), as well as amicus curiae briefs, submitted during the judgment implementation phase. See I/A Court H.R., Court Agreement No. 1/19, Clarifications in Relation to the Publication of Information Contained in the Files of Cases at the Stage of Monitoring Compliance with Judgment, 11 March 2019.
While the IACtHR has long published its own orders on compliance with its judgments, it has not previously published the parties’ briefs or other submissions regarding compliance. And, while the Court publishes the parties’ “main briefs” from the merits phase, it does not publish amicus curiae briefs related to the merits. Importantly, the Court’s orders on compliance with its judgments already refer to and quote from the information it receives from the parties and others; the major change of this new policy is that the public will have direct access to submitted documents and briefs themselves, at least with regard to guarantees of non-repetition. The Court may implement the new agreement retrospectively, to publish the relevant briefs received in prior years. See id.
The African Commission on Human and Peoples’ Rights (ACHPR) is revising its Declaration of Principles on Freedom of Expression in Africa to address new technological advances, online activity, and internet restrictions throughout Africa, and is requesting input from stakeholders. [ACHPR Press Release] The Special Rapporteur on Freedom of Expression and Access to Information in Africa invites comments from civil society, States parties, and others on a new draft Declaration of Principles on Freedom of Expression and Access to Information in Africa. [ACHPR Press Release] The Draft Declaration, currently available in English, French, and Portuguese, follows from a series of resolutions adopted by the African Commission in 2012 and 2016, mandating updates that better address the impact of the internet and digital technologies on the right to freedom of expression and access to information. [ACHPR Press Release] Civil society submissions should be emailed to the Secretariat of the African Commission at firstname.lastname@example.org by July 1, 2019. [ACHPR Press Release]
Inter-American Commission on Human Rights (IACHR) has, for the first time, referred a case involving an alleged extrajudicial killing of a transgender woman to the Inter-American Court of Human Rights (IACtHR). The IACHR’s referral, filed on April 30, 2019, indicates that trans activist Vicky Hernández was killed – likely by State agents – during a government-imposed curfew in 2009, amid a broader context of attacks against LGBT persons in Honduras, and that the State subsequently failed to adequately investigate her death. [IACHR Press Release] The IACHR describes the case as an opportunity for the Court to “develop jurisprudence on violence against LGBT people, particularly trans women” and to again consider the human rights implications of the 2009 coup d’état in Honduras. [IACHR Press Release] The IACHR referred the case to the Court after determining that Honduras failed to comply with the recommendations set out in its merits report, which was recently made available in English on the IACHR’s website along with the letter of submission to the Court.
In its first advisory opinion, the European Court of Human Rights (ECtHR) considered the parental rights, under French law, of intended mothers to children born abroad through a surrogacy arrangement. See ECtHR, Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Request no. P16-2018-001, Advisory Opinion of 10 April 2019. The Court established that intended mothers, whether biological or not, should have the possibility of obtaining legal recognition in France of their relationship with the child where the intended (and biological) father has been legally recognized and where the intended mother is identified as the “legal mother” in the foreign birth certificate. The advisory opinion is the Court’s first since the entry into force, in 2018, of Protocol No. 16, which authorizes the highest courts of States parties to request opinions from the Court on the interpretation or application of the to the European Convention on Human Rights with regard to specific legal questions. [IJRC] It remains to be seen how France will continue with the domestic proceedings that were postponed pending the ECtHR’s opinion. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 18.
This advisory opinion emanates from the facts and events of the ECtHR’s judgment in the 2014 Mennesson v. France (no. 65192/11) case. See id. at para. 10. In that case, two children born in the United States via a surrogacy arrangement were denied legal recognition, in France, of their relationship with their intended parents, even though that relationship was legally recognized in the U.S. See id. at para. 10. The European Court decided that there had been no violation of any party’s right to respect of their family life, but that the children’s right to respect for private life had been violated. See id. at para. 11. The Court reasoned that the right to respect for private life included the ability to determine details of one’s identity, which includes the identification of one’s legal parents. See id. at para. 12.
This ruling expressly noted that it can never be in the best interests of the child to deny legal recognition of the relationship between children and their “intended” and biological father. See id. at para. 13. Since that ruling, French courts have allowed the registration of the intended father as the legal father, if he was also the biological father of the children in question, but did not provide the same recognition to the intended mother. See id. at para. 14. The only option under French law is for an intended mother to adopt her spouse’s child, provided she is married to the biological and intended father. See id. In 2017, the Mennessons, acting as their children’s legal representatives, requested a new decision regarding their appeal against the Paris Court of Appeals’ 2010 decision to annul the legal recognition of both parents’ relationship with their two children. The French Court of Cassation requested an advisory opinion from the European Court for the purposes of re-examining that appeal. See id. at paras. 16-17.
The Advisory Opinion
The French Court of Cassation requested this advisory opinion on October 12, 2018. See id. at para. 1. On December 3, 2018 the five-judge panel of the Grand Chamber accepted the request, which raised two questions for the ECtHR:
1. By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’?
2. In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention?
See id. at paras. 2, 9. Article 8 of the European Convention on Human Rights protects the right to respect for private and family life.
State’s Refusal to Legally Recognize “Intended Mother”
In consideration of the first question, the ECtHR prioritized two factors: 1) the best interest of the child; and, 2) the scope of the margin of appreciation afforded to France in fulfilling its human rights obligations. See id. at para. 37. With respect to the best interests of the child, the European Court noted that while the State may have an interest in preventing individuals from undergoing procedures to assist their reproduction efforts that are legally precluded domestically, children who are conceived via such arrangements stand to face substantial hardships in the absence of the legal recognition of the relationship to their parents. See id. at paras. 39, 40. Specifically, the ECtHR stated that the children’s right to respect for private life under Article 8 of the European Convention is negatively impacted when domestic law does not recognize the legal relationship between children conceived via assisted reproduction methods, such as surrogacy, and their intended mother. See id. at para. 40. The Court further stated that an “absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests.” See id. at para. 42.
With respect to the State’s margin of appreciation, an important factor – determined on a case-by-case basis – is the existence of legal “common ground” between States in Europe. See id. at para. 43. The ECtHR considered relevant laws among other Council of Europe States and acknowledged the low level of consensus on this issue, which would suggest a greater margin of appreciation. See id. However, the ECtHR also noted that the margin of appreciation may be restricted in cases in which particularly important issues of identity, such as the legal recognition of a parent-child relationship, are at stake. See id. at paras. 43-44. Thus, the ECtHR concluded that the State’s margin of appreciation is reduced given the circumstances outlined in this case. See id. Considering the best interests of the child and the reduced margin of appreciation, the Court stated that Article 8 “requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother.” See id. at para. 46.
Methods of Legal Recognition
With regard to the second question posed, the ECtHR considered Convention required a specific type of legal recognition of the parent-child relationship when there was no biological relationship between the child and intended mother. See id. at para. 48. The opinion states that the best interests of the child dictate that the period of legal uncertainty surrounding children’s relationship with their parents should be as brief as possible, but that this did not require that State adopt the exact details of birth certificates created abroad. See id. at paras. 49-50. Based on the lack of legal consensus within Europe and the Court’s view that an “individual’s identity is less directly at stake” when there is no biological relationship at issue, the Court concluded that it falls within States’ margin of appreciation to decide how exactly to recognize the parent-child relationship. See id. at para. 51. Therefore, alternatives including adoption by the intended mother may satisfy Article 8 so long as the process can be completed “promptly and effectively” and “in accordance with the best interests of the child.” See id. at para. 55. The ECtHR noted that it was not within the scope of its opinion to make a determination on the adequacy of French adoption law. See id. at para. 58.
Advisory Opinion Jurisdiction
On April 14, 2018, France became the tenth State to ratify Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedom, triggering its entry into force in August of that year. [ECtHR Press Release] This Protocol extended the jurisdiction of the European Court of Human Rights to include advisory jurisdiction for States that have ratified Protocol 16. [ECtHR Press Release]
To request an advisory opinion, a State court must provide reasons for its request, provide the relevant legal and factual background of the case, and must have the issue currently pending before it. See Protocol 16, art. 1(3). The State may submit written comments and may take part in the hearing. See id. at art. 3. The President of the ECtHR may also invite other States or individuals to submit comments or take part in the hearing. See id. While the advisory opinion of the ECtHR is non-binding on the State, the aim is to give the domestic courts guidance on interpretation of the relevant provisions of the Convention that relate to the case before it. See id. at art. 5; Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. The ECtHR does not have jurisdiction to assess the facts of a domestic case or to interpret domestic law. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. Ultimately, the requesting court or tribunal must still decide the case itself. See id.
So far, 13 States in the Council of Europe have ratified Protocol 16. Those are Albania, Andorra, Armenia, Estonia, Finland, France, Georgia, Greece, Lithuania, Netherlands, San Marino, Slovenia, and Ukraine. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. An additional nine States have signed but not ratified Protocol 16. Those are Belgium, Bosnia and Herzegovina Italy, Luxembourg, Norway, Republic of Moldova, Romania, Slovak Republic, and Turkey. See id.
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In June, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports and country visits. One United Nations treaty body will hold a session to assess States’ progress regarding the prevention of torture, and the Committee on the Rights of the Child Pre-Sessional Working Group will meet privately. The Human Rights Council will consider the overall human rights situations in 15 countries. Two UN special rapporteurs and one independent expert will conduct country visits in June. Additionally, the Working Group on the issue of discrimination against women in law and practice will hold a session in Geneva. Of the regional bodies, the African Court on Human and Peoples’ Rights (AfCHPR) will be in session and the European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.
The public hearings of the AfCHPR and the ECtHR may be viewed via the AfCHPR’s YouTube page, and the ECtHR’s website, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.