U.S. Customs and Border Patrol at the San Ysidro crossing
Credit: Josh Denmark
Recent changes in the United States’ immigration policies have drawn fresh condemnation from human rights experts and civil society, particularly as news spread that authorities had separated approximately 2,000 children from their parents at the country’s southern border. [IACHR Press Release; OHCHR Press Release; UNHCR Press Release] These changes include automatic criminal prosecution and detention of adults – including asylum seekers – entering the United States without authorization, separation and detention of children who crossed the southern border outside a port of entry with their parents, and a directive instructing immigration officials not to recognize a State’s failure to protect victims of gang violence and domestic violence as grounds for asylum. In response to criticism earlier this month, President Trump signed an Executive Order on June 20, 2018 to detain children and parents together, but that also raised concerns because it did not address the reunification of separated families and proposed modifying time limits on detention of families. [OHCHR Press Release: UN Experts] The policy changes add to long-standing human rights concerns related to U.S. immigration policy. This post reviews 10 of the primary principles implicated. Read more
The Inter-American Court of Human Rights
On January 9, 2018, the Inter-American Court of Human Rights (IACtHR), the judicial organ of the human rights system in the Americas, published an advisory opinion holding that Member States of the American Convention on Human Rights have an obligation to permit transgender individuals to change their name and gender on identity documents, to recognize same-sex marriage, and to ensure the economic rights of those in same-sex relationships. [IACtHR Press Release (in Spanish only)] See I/A Court H.R., Obligaciones Estatales en Relación Con el Cambio de Nombre, la Identidad de Género, Y los Derechos Derivados de un Vínculo Entre Parejas del Mismo Sexo. Advisory Opinion OC-24/17. 24 November 2017, para. 229 (in Spanish only). In 2016, Costa Rica filed a request for the advisory opinion, asking the Inter-American Court to clarify two questions arising under the American Convention. The first question was whether States are obligated to provide procedures for name, photo, and gender changes in accordance with an individual’s gender identity, and whether Costa Rica’s practices conform with this obligation. The second question was whether States are obligated to recognize the economic rights derived from a bond between same-sex persons. [IACtHR Press Release] See Obligaciones Estatales en Relación Con el Cambio de Nombre, la Identidad de Género, Y los Derechos Derivados de un Vínculo Entre Parejas del Mismo Sexo. 24 November 2017, para. 1. The Inter-American Court answered in the affirmative to Costa Rica’s questions. [IACtHR Press Release] The finding applies to all 23 States parties to the American Convention.
The opinion has received international recognition for its advancement of LGBTQ rights; the recently appointed Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz, has expressed that “the protections described by the Court in this Advisory Opinion will have an extremely positive impact in addressing stigma, promoting socio-cultural inclusion and furthering legal recognition of gender identity.” [OHCHR Press Release] Although Costa Rica is one of several Latin American countries that do not currently permit same-sex marriage, officials from the Costa Rican government are willing to embrace the Court’s opinion, with Costa Rica’s Vice-President Ana Helena Chacón quoted as saying that the decision would be adopted “in its totality.” [Reuters; BBC]. Read more
A prison in Russia
Credit: A. Savin via Wikimedia Commons
The European Court of Human Rights (ECtHR) issued a unanimous judgment on March 7 holding that imprisoning individuals thousands of miles away from their families violates their right to private and family life protected under Article 8 of the European Convention on Human Rights (ECHR). See ECtHR, Polyakova and Others v. Russia, Nos. 35090/09, 35845/11, 45694/13, 59747/14, Judgment of 7 March 2017. In Polyakova and Others v. Russia, three prisoners were held between 2,000 and 8,000 kilometers from their family members, and the distance, the applicants showed, had a direct effect on how often the prisoners were able to visit with family. Russia’s domestic legal system, the ECtHR found, allows for vast discretion in choosing a prisoner’s location, and does not require consideration of the effect a penal facility’s geographical location may have on a prisoner’s family life when placing a detainee. See id. at paras. 98-101, 116-19. Domestic procedures do not adequately safeguard against abuse of discretion through effective judicial review or another mechanism, the Court found, and, therefore, Russia’s interference with the prisoners’ rights was not justified. See id. at para. 119. The Court in its opinion recognized that the margin of appreciation given to States on “permissible limits of the interference with private and family life” when regulating family visits in prisons “has been narrowing.” See id. at para. 89. A 2013 case against Russia also found that placement in remote prisons and a lack of efficient transportation to those prisons implicated the right to private and family life for prisoners. See ECtHR, Khoroshenko v. Russia [GC], no. 41418/04, Judgment of 30 June 2015. The current case expanded upon that opinion, stating placing prisoners 2,000 to 8,000 kilometers away from family members interfered with their rights.
Banchi, a woman forced to marry at the age of 15
Credit: DFID – UK Department for International Development via Wikimedia Commons
Ahead of International Women’s Day, the African Union in conjunction with the Office of the United Nations High Commissioner for Human Rights (OHCHR) and UN Women launched the inaugural report of a planned series concerning the human rights of women in Africa; the report indicates that while women’s participation in politics has increased, women’s rights and equality are severely lacking in a number of other arenas. [OHCHR Press Release] African women, the report notes, continue to endure harmful practices such as child marriage, female genital mutilation, and forced sterilization of those living with HIV. See African Union et al., Women’s Rights in Africa (2017), at 27, 35, 37. The report also addresses women’s lack of access to adequate reproductive health resources, the difficulties faced by women with albinism, the prevalence of sexual and gender-based violence, and the situation of women in prisons. See id. at 22–24, 28–31, 45. Additionally, the report explains the regional human rights legal framework applicable to women’s rights with particular emphasis on the role of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). See id. at 4. In order to move toward the full realization of women’s rights, the authors recommend accelerated ratification of the Maputo Protocol, the strengthening of institutions that support and empower women, the repeal of discriminatory laws and practices, and the adoption of targets to ensure movement toward gender equality. See id. at 54–55. Read more
Rohingya in Rakhine state in Myanmar
Credit: Foreign and Commonwealth Office via Wikimedia Commons
The Office of the High Commissioner for Human Rights (OHCHR) recently published its findings from over 200 interviews with Rohingya refugees in Bangladesh that described severe human rights violations against Rohingya in Myanmar since an October 9, 2016 attack on the police in Myanmar’s Rakhine state. See OHCHR, Report of the OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (2017), at 3. The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has expressed deep concerns about the unprecedented violence against the Rohingya Muslims as the interviews demonstrated the grave extent of human rights violations taking place in the region, including killings, beatings, the destruction of property, rape and sexual violence, and enforced disappearances, among others. According to the report, the systematic abuses perpetrated by the State may amount to crimes against humanity. See id. at 9, 42. [OHCHR Press Release]
This latest report complements earlier reports that confirmed human rights abuses against Rohingya in Myanmar, including discrimination based on religion, deprivation of liberty, violations of the rights to health and education, and trafficking, among other abuses. The OHCHR had previously recommended preventative measures to the State as well as conducting thorough investigations of alleged human rights abuses. See UN High Commissioner for Human Rights, Situation of human rights of Rohingya Muslims and other minorities in Myanmar, UN Doc. A/HRC/32/18, 29 June 2016. Read more
The Inter-American Court hears from the parties in I.V. v. Bolivia
The Inter-American Court of Human Rights (IACtHR) examined for the first time the issue of informed consent to medical treatment and forced sterilization, in its judgment in I.V. v. Bolivia, released last week. [IACtHR Press Release (in Spanish)] The case involves a Peruvian refugee who was sterilized by a tubal ligation performed without her informed consent in a Bolivian public hospital in 2000, resulting in permanent loss of her ability to conceive a child. See I/A Court H.R., I.V. v. Bolivia. Preliminary Objections, Merits, Reparations and Costs. Judgment of 30 November 2016. Series C No. 329, paras. 64-65 (in Spanish). I.V. had been admitted to a public hospital to give birth and was sterilized, immediately after doctors performed a Caesarean section, purportedly to prevent potential complications if I.V. were to become pregnant again in the future. See id. at paras. 63-64.
The IACtHR’s judgment expands the Court’s jurisprudence on the principle of informed consent, the (infrequently cited) right to dignity under the American Convention on Human Rights, and a State’s obligation to ensure adequate training for medical professionals. The IACtHR affirmed that informed consent is an essential precondition to medical treatment that is based on respect for individuals’ autonomy, dignity, and freedom to make their own decisions. See id. at para. 159. The International Justice Resource Center (IJRC), together with the International Human Rights Clinic at Santa Clara University, submitted an amicus curiae brief to the Court which provided supplementary analysis on these concepts and the human rights implicated by forced sterilization of women, a practice that is regrettably common in the Americas and throughout the world. Read more
The United Nations General Assembly
Credit: UN Photo/Rick Bajornas
In the month of December, various universal and regional bodies will be in session. Three United Nations treaty bodies will meet to engage with States regarding their treaty obligations related to torture, racial discrimination, and enforced disappearances. Seven UN special rapporteurs and one working group will conduct country visits, and three working groups will meet in Geneva, Switzerland to discuss issues pertaining to people of African descent, the use of mercenaries, and activities of private military and security companies. The 71st regular session of the United Nations General Assembly continues in New York this month, as well.
Regionally, the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (IACtHR), the African Court on Human and People’s Rights (AfCHPR), and the European Committee of Social Rights (ESCR), will hold sessions or case hearings this month. The Inter-American Commission will conduct thematic hearings on a variety of topics including indigenous peoples’ rights in the context of extractive industries, among others, and the Inter-American Court will consider cases covering a variety of issues, including forced sterilization and fair trial guarantees.
The UN treaty body sessions and the public hearings of the Inter-American Commission, Inter-American Court, and African Court may be watched via UN Web TV, the Inter-American Commission’s website, Vimeo, and YouTube, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar. Read more
Coordination Committee of Special Procedures with UN Secretary General Ban Ki-moon
Credit: UN Photo/Kim Haughton
The United Nations Working Group on Arbitrary Detention (WGAD) recently released 21 opinions adopted during its August 2016 session, relating to 58 individuals in detention in 17 countries. [OHCHR Press Release] The opinions covered several topics within the WGAD’s mandate, including the treatment of minors in detention, the right to a fair trial, the rights to freedom of expression and opinion, the right to freedom of association, torture, preventive detention, discrimination, the right to freedom of movement, unlawful arrest, reprisals, and the right to dignity in relation to health-care services in detention. Some involve human rights defenders, such as Bahraini activist Zainab Al-Khawaja. Despite the fact that the WGAD did not receive many government responses to the allegations, it rendered its numerous opinions on the basis of the available information, in conformity with its working methods. See WGAD, Methods of work of the Working Group on Arbitrary Detention, UN Doc. A/HRC/33/66, 12 July, 2016, para. 15. Read more