Forced Sterilization as a Human Rights Violation: Recent Developments

Commission on the Status of Women, New York

In recent years, international advocacy has contributed to increased awareness of forced sterilization as a human rights violation, including as a result of our work at the International Justice Resource Center (IJRC). Around the world, healthcare providers and others continue to sterilize people without their informed consent, most often targeting those who are Indigenous, living with HIV, are persons with disabilities, or who experience discrimination on other grounds. Just this month, IJRC advanced our partners’ advocacy on this issue at the 63rd Session of the United Nations Commission on the Status of Women (CSW), and Human Rights Watch published a report on involuntary sterilization of transgender persons in Japan. The past three years have also seen judgments from regional human rights courts on forced sterilization and important statements from other bodies. This post details the results of advocacy before regional and United Nations human rights bodies, summarizing the growing body of recommendations, statements, and judgments that more fully define forced sterilization as a human rights violation and guide governments in addressing this harmful practice.

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U.S. Supreme Court Rejects Absolute Immunity For International Organizations

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C.
Credit: Joe Ravi via Wikimedia Commons

On February 27, 2019, the United States Supreme Court held by a vote of seven to one that international organizations do not have absolute immunity from suit in U.S. courts. See Jam v. International Finance Corp., No. 17-1011, slip op. at 2 (U.S. Feb. 27, 2019). Rejecting the International Finance Corporation’s (IFC) argument that international organizations like the IFC maintain absolute immunity from suit in U.S. courts, the Court allowed a case alleging injuries from environmental pollution caused by a power plant that was funded and supervised by the IFC to proceed in a U.S. federal court. See id. at 1-2, 5-6. The Supreme Court held that international organizations are not immune from all suits, such as when those organizations are engaged in commercial activity. See id. at 4, 15. The Supreme Court’s decision now allows the case against the IFC to move forward in U.S. Federal Court in Washington D.C. Although the Supreme Court’s decision did not make a determination on the merits of the case, the Court’s holding opens the door in U.S. courts for other potential suits alleging wrongdoing committed by other international organizations. [Earthrights]

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ICJ: U.K. Rule Over Chagos Prevents Full Decolonization of Mauritius

London July 20 2018 (126) Chagos Islands Protest Trafalgar Square
Credit: David Holt via Flickr

In an advisory opinion issued on February 25, the International Court of Justice (ICJ) concluded that the United Kingdom violated core principles of international law by separating the Chagos Archipelago from Mauritius in the 1960s and continuing to administer the islands as a British territory. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, para. 183. Despite the U.K’s numerous attempts to challenge the Court’s jurisdiction over the matter, the Court ultimately determined that it was competent to address the questions presented and issued its answer. See id. In its opinion, the Court made clear that the U.K’s actions with respect to this former colony run counter to what are now well-established rights of peoples to self-determination. See id. at paras. 177-178. The UN General Assembly is expected to discuss implementation of the advisory opinion, including returning the islands to Mauritius and resolving the status of the thousands of people the U.K. forcibly expelled from Chagos following its agreement with the United States to allow an American military base, and later secret CIA detention site, on the island of Diego Garcia. [Guardian; Nation]

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Council of Europe Adopts Declaration on Artificial Intelligence and Personal Autonomy

In a new declaration on the impact of the use of algorithms on democracy, human rights, and the rule of law, the Council of Europe’s Committee of Ministers warns that artificial intelligence and other machine-learning technologies must not be used to unduly influence or manipulate individuals’ thoughts and behavior. See Council of Europe Committee of Ministers, Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, Decl(13/02/2019)1, 13 February 2019. The first of its kind, the declaration calls on States to take steps to ensure that technologies facilitating algorithmic persuasion, particularly those that “micro-target” individuals, do not interfere with people’s ability to enjoy their human rights and to make independent political, personal, and purchasing decisions. See id. at paras. 8, 9. The Declaration, which builds on ongoing study and analysis by Council of Europe organs, adds to the growing body of guidance and recommendations concerning the regulation of machine learning to safeguard human rights, including from the United Nations Special Rapporteur on freedom of expression.

The Declaration

At the heart of the Declaration is the concern that technology that seeks to shape our preferences and alter information flows is becoming an “ever growing presence in our daily lives,” and the finding that digital forms of targeted persuasion pose a threat to democracy, human rights, and the rule of law. See Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, at paras. 4, 9. Specifically, the Committee of Ministers states that the use of “fine grained, sub-conscious and personalized levels of algorithmic persuasion” risks significantly interfering with the principles of individual autonomy and the right to form opinions and take independent decisions. See id. at para. 9. Undermining the autonomy and independence of individuals, according to the Committee, threatens the fundamental belief “in the equality and dignity of all humans as independent moral agents.” See id. at paras. 9.

The Committee of Ministers recognizes that digital services have become an essential tool for modern communication, including political communication, and that advanced technologies provide the opportunity to enhance human rights. See id. at paras. 2-3. However, the Committee also notes that public awareness “remains limited regarding the extent to which everyday devices collect and generate vast amounts of data” that “are used to train machine-learning technologies. . . to predict and shape personal preferences, to alter information flows, and, sometimes, to subject individuals to behavioral experimentation.” See id. at para. 4. Additionally, the Committee warns that the ability to infer “intimate and detailed information” from the data collected “supports the sorting of individuals into categories,” which allows companies to reinforce discrimination along cultural, religious, legal, and economic lines. See id. at para. 6.

The Committee of Ministers concludes that machine-learning technologies, when coupled with mass collection of data, pose a danger for democratic societies if these technologies are used—by either public or private entities—to “manipulate and control not only economic choices but also social and political behaviours.” See id. at para. 8. Moreover, the Committee notes that machine-learning tools are demonstrating an increasing ability to “not only to predict choices but also influence emotions and thoughts and alter an anticipated course of action, sometimes subliminally.” See id. at para. 8. The Committee emphasizes that the 47 Member States to the Council of Europe have an obligation to protect democracy, human rights, and the rule of law during the rapid social transformation that is occurring as the result of recent advances in technology. See id. at para. 1.

Recommendations

The Declaration makes five specific recommendations about how States should address the risks to democracy and human rights posed by machine learning. The first is that States should pay attention to the inter-disciplinary nature of this concern and ensure that the above concerns do not fall between the mandates of current administrative agencies. See id. at para. 9(a). Second, States should consider enacting laws that regulate the collection and use of personal data that go beyond preexisting privacy protections. See id. at para. 9(b). In addition, States should specifically legislate against forms of “illegitimate interference,” which would include forms of persuasion and interference that compromise democratic principles. See id. at para. 9(d). Lastly, the Committee asserts that States should both promote a public debate on the issue of what counts as permissible persuasion and empower users of digital technologies by promoting digital literacy, including awareness of data collection. See id. at para. 9(c) and 9(e).

Recent Developments under Human Rights Law Concerning AI

International human rights experts and civil society have sought to address the human rights impact of machine-learning and algorithmic decision-making. [OHCHR; UNDP; AccessNow; Data&Society] Most recently, in a 2018 report to the UN General Assembly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression released the first such report examining the impact of artificial intelligence (AI) and algorithmic decision-making on the information environment; a response to these technologies “are now a critical part of the information environment – they are found in every corner of the internet, on digital devices and in technical systems, in search engines, social media platforms, messaging applications, and public information mechanisms.” [OHCHR]

Importantly, the Special Rapporteur’s report proposes a human rights framework for the design and use of these technologies by States and private actors. [OHCHR] Drawing primarily on the rights to freedom of opinion, expression, privacy, non-discrimination, and an effective remedy, the Special Rapporteur finds that States should ensure that human rights are at the core of private sector design of these technologies. See id. at paras. 60-63. This requires that States update and enforce data protection regulations with respect to machine-learning technologies. See id. at para. 63. Moreover, States should enact policies that create a diverse and pluralistic information environment, which may include the regulation of technology monopolies in the area of artificial intelligence. See id. at para. 64.

With respect to the responsibility of private companies, the Special Rapporteur found that companies should create and apply guidelines for the deployment of artificial intelligence that are grounded in human rights principles and informed by civil society. See id. at para. 65. Additionally, companies should be transparent and open for audit concerning the use of artificial intelligence on their platforms and services. See id. at paras. 66, 69. Companies should also prevent discrimination by the teams designing their artificial intelligence systems and discrimination in the actual system design, which may include monitoring outcomes that may be discriminatory, removing discriminatory data, and implementing measures that compensate for discriminatory data. See id. at para. 67.

Additional Information

The Council of Europe, based in Strasbourg, France, is an intergovernmental organization with 47 Member States. The Committee of Ministers, a decision-making body charged with monitoring the implementation of several human rights treaties including the European Convention on Human Rights, is composed of the ministers of foreign affairs of the Member States. Additionally, the European Court of Human Rights, the European Committee of Social Rights, and the Commissioner for Human Rights all operate under the auspices of the Council of Europe.

For more information about the European Human Rights System or the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, visit IJRC’s Online Resource Hub. To stay up-to-date on international human rights law news, visit IJRC’s News Room or subscribe to the IJRC Daily.

Human Rights Committee: Finland’s Oversight of Indigenous Politics Constitutes Violation

Sami and Finnish flags flying in Hetta
Credit: Htm via Wikimedia Commons

In two recently released decisions, United Nations Human Rights Committee determined that the Finnish government interfered with Sámi individuals’ rights to political participation and culture when a national court expanded the group of people authorized to vote, or run as candidates, in the Indigenous group’s parliamentary elections. [OHCHR Press Release: Finland] While the Committee and other UN human rights bodies have raised concerns about this issue before, these are the first complaints to be decided concerning the Sámi people’s self-determination. The Committee has given Finland six months to submit a report outlining the progress it has made in implementing the decisions. [OHCHR Press Release: Finland] One other communication on the same matter is pending before the Committee on the Elimination of Racial Discrimination (CERD). See Human Rights Committee, Sanila-Aikio v. Finland, Views of 1 November 2018, UN Doc. CCPR/C/124/D/2668/2015, para. 4.2.

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ECtHR’s Second Inter-State Reparations Judgment Orders Russia Compensate Expelled Georgians

Courtroom of the European Court of Human Rights in Strasbourg
Credit: Adrian Grycuk via Wikimedia Commons

The Grand Chamber of the European Court of Human Rights (ECtHR) has issued its second ever monetary judgment in an inter-State case, ordering Russia to pay the Georgian government 10 million euros as reparations for Russia’s collective expulsion of thousands of Georgian nationals between 2006 and 2007. See ECtHR, Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2019, Judgment of 31 January 2019 (Just Satisfaction). The judgment on reparations follows the Court’s 2014 judgment on the merits of the case, in which it found that Russia’s mass expulsion of Georgians violated the European Convention on Human Rights. See id. at para. 2. If Russia complies with the judgment, Georgia will be responsible for distributing the 10 million euros to a group of 1,500 identified victims, awarding 2,000 euros to each person who was expelled and awarding an additional 10,000 to 15,000 euros to those who had also been detained and ill-treated. See id. at paras. 77, 79. This judgment applies and builds on the Grand Chamber’s 2014 just satisfaction judgment in Cyprus v. Turkey, in which it ordered Turkey to pay 90 million euros in just satisfaction for the enforced disappearance of 1,456 people and various violations against the Greek Cypriots of the Karpas peninsula, by Turkish authorities, dating to 1974. See ECtHR, Cyprus v. Turkey, [GC], no. 25781/94, Judgment of 12 May 2014 (Just Satisfaction).

This case is the first of four cases that Georgia has brought to the ECtHR against Russia since 2007. The second case, concerning Russia’s alleged violation of the European Convention during the 2008 Russo-Georgian conflict, is currently pending before a Grand Chamber. See ECtHR, Cases pending before the Grand Chamber. The third case, which concerned Russia’s detention of several Georgian nationals, was voluntarily dropped by Georgia after Russia released the individuals from detention. [ECtHR: New Complaint] The fourth case, filed in August 2018, concerns alleged violations of rights along the border between Georgian-controlled territory and Abkhazia and South Ossetia. [ECtHR: New Complaint] The International Criminal Court (ICC) has also opened an investigation into alleged war crimes and crimes against humanity committed during the 2008 Russo-Georgian conflict. See ICC, Situation in Georgia.

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Human Rights Experts Condemn Continuing Internet Shutdowns in African Countries

ACHPR Special Rapporteur on Freedom of Expression and Access to Information, Lawrence Murugu Mute
Credit: Lawrence Mute via Twitter

A number of African countries have drawn international criticism amid a wave of internet shutdowns aimed at restricting access to information and discourse on social, economic, and political issues. Between December 2018 and January 2019, Sudan, the Democratic Republic of Congo (DRC), Gabon, and Zimbabwe cut off access to the internet in response to protests. [ACHPR Press Release: Shutdowns] Human rights groups and experts have condemned these moves as illegal acts of repression, citing violations of the rights to freedom of expression and access to information. [ACHPR Press Release: Shutdowns; OHCHR Press Release; Access Now Press Release] While the internet shutdowns in Africa contribute to a trend of increasing shutdowns around the world, the international response demonstrates that internet access is now recognized as essential to the exercise of human rights.

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