Human Rights Committee
- Diene Kaba v. Canada, Human Rights Committee, 2008. International law, harmful traditional practices, domestic and intimate partner violence, child or early marriage, forced marriage, female genital mutilation or female genital cutting, asylum. Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.
- Karen Noelia Llantoy Huaman v. Peru, Human Rights Committee, 2005. International law, forced pregnancy. Karen Noelia Llantoy Huamán, a 17-year-old Peruvian, decided to terminate her pregnancy when she discovered that carrying her anencephalic fetus to term would pose serious risks to her health. When she arrived at Archbishop Loayza National Hospital in Lima to obtain the abortion procedure, the hospital director refused to allow the procedure because article 119 of the Criminal Code permitted therapeutic abortions solely when termination was the only way of saving the mother’s life or avoiding serious and permanent damage to her health. Huamán gave birth to an anencephalic daughter who died four days later, causing Huamán to fall into a deep depression. In her complaint to the Committee, Huamán asserted that by forcing her to continue her pregnancy, the hospital caused her not only physical pain but mental suffering in violation of article 7 of the Covenant on Civil and Political Rights prohibiting cruel and inhuman treatment. Huamán also cited a violation of article 17, which protects women from interference in decisions that affect their bodies, lives, and opportunity to exercise their reproductive rights. Finally, she claimed that Peru’s failure to adopt economic, social, and cultural measures to safeguard her rights under article 17 was tantamount to a violation of article 24 of the Covenant. The Committee concluded that the State’s refusal to allow Huamán to obtain a therapeutic abortion was the direct cause of the suffering she experienced, and that the protection from physical pain and mental suffering under article 7 is particularly important in the case of minors. The Committee noted that Huamán’s case presented the conditions for a lawful abortion, and the refusal to act in accordance with her wishes to terminate the pregnancy equated to a violation of article 17. Finally, in the absence of any information from Peru on Huamán’s claim that she did not receive the medical and psychological support necessary during her pregnancy, the Committee found that the facts presented reveal a violation of article 24 which guarantees State protection to minors.
- Ato del Avellanal v. Peru, Human Rights Committee, 1988. International law, gender discrimination, property and inheritance rights. In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.
- S.W.M. Broeks v. the Netherlands, Human Rights Committee, 1987. International law, gender discrimination, employment discrimination. S.W.M. Broeks, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law. Broeks contested the termination in domestic courts, but the Central Board of Appeal confirmed the decision of a lower municipal court not to continue unemployment payments to Broeks. In her complaint to the Committee, Broeks claimed that the Netherland’s Unemployment Benefits Act (WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to its protections. Broeks argued that because she was a married woman at the time of the dispute, the law excluded her from continued unemployment benefits. Under section 13 subsection 1 of the Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to prove that she was a “breadwinner” – a condition that did not apply to married men. The Committee concluded that the differentiation that appears to be one of status is actually one of sex, placing married women at a disadvantage compared with married men, amounting to a violation of article 26 of the Covenant.
- Zwaan-de Vries v. The Netherlands, Human Rights Committee, 1987. International law, gender discrimination, employment discrimination. F.H. Zwaan-de Vries is a Netherlands national who worked for several years before becoming unemployed. Zwaan-de Vries qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of WWV (the “breadwinner” clause) because she was a married woman. The WWV provision that required applicants to prove that they are the family’s “breadwinner” in order to qualify for benefits did not apply to married men. On appeal, the Municipality of Amsterdam affirmed the rejection, after which the author appealed to the Board of Appeal in Amsterdam. The Board of Appeals held that Zwaan-de Vries’ complaint was invalid, and the Central Board of Appeal affirmed this holding. In her complaint to the Committee, Zwaan-de Vries argued that the Netherlands violated article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In interpreting the scope of article 26, the Committee took into account the “ordinary meaning” of each element of the article in its context and in light of its object and purpose, noting that article 26 derives from the principle of equal protection of the law without discrimination as contained in article 7 of the Universal Declaration of Human Rights. Thus, article 26 is concerned with the obligations imposed on States in regard to their legislation and its application. The Committee cited Hendrika Vos v. The Netherlands for the principle that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. However, since the WWV required only women to prove their status as “breadwinner”, the differentiation was not reasonable. Therefore, the Netherlands violated article 26 of the Convention when it denied Zwaan de Vries a social security benefit on an equal footing with men.
- Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius, Human Rights Committee, 1981. International law, gender discrimination. Twenty Mauritian women submitted a communication to the Committee stating that the Immigration (Amendment) Act of 1977 and the Deportation (Amendment Act) of 1977 constitute discrimination based on sex against Mauritian women, violation of the right to found a family and a home, and removal of the protection of the courts of law. Prior to the enactment of these laws, alien men and women married to Mauritian nationals could equally enjoy residence status by virtue of their marriage. Under the new laws, however, alien husbands of Mauritian women must apply for a “resident permit” subject to rejection by the Minister of the Interior at any time. The new laws do not similarly affect alien wives of Mauritian men. The complaint specifically alleged several violations of the Covenant on Civil and Political Rights including: article 2 obligations to recognize rights under the Covenant without distinction based on sex; article 3 obligations to ensure the equal enjoyment of civil and political rights regardless of sex; article 26’s guarantee that all persons are equal before the law and are entitled without discrimination to equal protection of the law; article 17’s protection against arbitrary or unlawful interference with privacy, family, and the home; and article 23’s obligations to protect an individual’s right to marry. Although the Committee found that seventeen of the complainants were unmarried and therefore unaffected by the legislation in question, the Committee concluded that the future possibility of deportation and the existing precarious resident situation of foreign husbands in Mauritius represented an interference by the State with the family life of the remaining victims. The Committee held that any discrimination on the ground of sex within Mauritian legislation without sufficient justification was tantamount to a violation of articles 2 and 3 in conjunction with article 17, as well as direct violations of article 26 and 23. The Committee recommended that Mauritius adjust the provisions of the Immigration (Amendment) Act and the Deportation (Amendment) Act in order to implement the State’s obligations under the Covenant to prevent sex discrimination in its laws and regulations.
- Lovelace v. Canada, Human Rights Committee, 1981. International law, gender discrimination. Sandra Lovelace was born and registered as a Maliseet Indian but lost her rights and status as such in accordance with section 12(1)(b) of Canada’s Indian Act after she married a non-Indian in 1970. Lovelace noted that the law did not equally adversely impact Canadian Indian men who marry non-Indian women, and therefore alleged that the law is gender discriminatory in violation of articles 2, 3, 23, 26, and 27 of the Covenant on Civil and Political Rights. Supreme Court of Canada rulings in The Attorney-General of Canada v. Jeanette Lavell and Richard Isaac v. Yvonne Bédard held that section 12(1)(b) of the Indian Act is fully operative irrespective of any inconsistency with the Canadian Bill of Rights on account of sex discrimination. Although the Committee noted that the relevant provision of the Indian Act does not legally restrict the right to marry as guaranteed in article 23 of the Covenant, the Act does seriously disadvantage Canadian Indian women who want to marry a non-Indian man by limiting their family options to a domestic partnership. Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage, which, according to the Committee, suggests a violation of article 27 of the Covenant which guarantees that ethnic, religious, of linguistic minorities shall not be denied the right to enjoy their own culture, to profess or practice their own religion, or to use their own language. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of Lovelace’s marriage to a non-Indian, there was no reasonable or necessary justification to deny Lovelace the right to return to the Tobique Reserve where she was born and raised. Canada’s refusal to allow Lovelace to do so was tantamount to a violation of her rights under article 27 of the Covenant.