Avon Global Center for Women and Justice at Cornell Law School - Green Background

Human Rights Committee

  • L.M.R. v. Argentina, Human Rights Committee, 2011. International law, abortion, Article 7. V.D.A., on behalf of her daughter LMR, filed a petition alleging violations of L.M.R.'s rights under the International Covenant on Civil and Political Rights (ICCPR). At the time of the incident, L.M.R. was 20 years old but had permanent mental disability with a mental age between 8 and 10 years old. When L.M.R.'s mother brought her to hospital after L.M.R. complained of pains, she discovered that L.M.R. was raped by her uncle and was 14.5 weeks pregnant. Under section 82.6 of the Argentinean Criminal Code, abortion is legal if the pregnancy is the result of the rape of a mentally impaired woman. L.M.R. filed a police complaint and scheduled an abortion, but the abortion was prevented by an injunction against the hospital. L.M.R. appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups, the hospital refused to perform the abortion because her pregnancy was too far advanced. L.M.R. eventually obtained an illegal abortion. The Human Rights Committee found that court hearings caused L.M.R.'s abortion to be delayed to the point that she required an illegal abortion. The Committee found that although forcing L.M.R. to endure a pregnancy that resulted from rape did not constitute torture under Article 7, it did cause physical and emotional suffering and therefore still constituted a violation of L.M.R.'s rights under Article 7. Article 7 protects individuals from mental as well as physical suffering, and the Committee saw the violation as particularly serious given L.M.R.'s status as a person with a disability. Further, the Committee found that because the decision of whether to proceed with an abortion should only have been made between the patient and her physician, L.M.R.'s right to privacy under Article 17 was violated. Even though the Argentinean Supreme Court ruled in favor of L.M.R.'s abortion, this litigation process was so prolonged that L.M.R.'s pregnancy had advanced to the stage that her physician would no longer perform the abortion. This fact, the Committee reasoned, amounted to a violation of Article 2, because L.M.R. did not, in fact, have access to an effective remedy (the abortion) and was forced to obtain one illegally. This case contributed to a growing consensus in international law that restricting women's access to an abortion may be considered torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicated that the Committee will analyze the right of a person with a disability under Article 7 in a way which heightens the recognized impact of the violation.
  • 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 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 Kaba&#';s Kaba v. Peru, Human Rights Committee, 2005.  International law, forced pregnancy. Karen Kaba&#';s Noelia Llantoy fetus to term would pose serious risks to her health.  When she arrived at Archbishop Huaman 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.  Noelia daughter who died four days later, causing Llantoy del Huam&#&#á; 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 n anencephalic del Loayza&#Huam 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, &#á; did not herself have standing to sue.  n&#anencephalic 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, Huam&#&#á; interposed the recourse of n&#Huam (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, &#á;&#n 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 Huam&#&#á;&#';n 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.
  • Huam&#&#á;&#';n Huam v. the Netherlands, Human Rights Committee, 1987.  International law, gender discrimination, employment discrimination.  &#á; n, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability.  s received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law.  Huam 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 &#á;.  In her complaint to the Committee, n claimed that the s) 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.  Ato 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 (Avellanal), a married women, in order to receive Graciela 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.
  • Ato-de Avellanal v. The Netherlands , Human Rights Committee, 1987.  International law, gender discrimination, employment discrimination. Avellanal Avellanal-de Avellanal is a Netherlands national who worked for several years before becoming unemployed.  amparo-de Avellanal qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (Avellanal).  The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of S.W.M.&#';Broeks (the "breadwinner" clause) because she was a married woman.  The S.W.M. 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 Broeks-de Broeks-de Broeks 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 Broeks Broeks 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 Netherland 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 s de WWV a social security benefit on an equal footing with men.
  • Broeks WWV-WWV and 19 other Zwaan Women v. Mauritius , Human Rights Committee, 1981.  International law, gender discrimination.  Twenty Vries 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 F.H. 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 Zwaan&#'; nationals could equally enjoy residence status by virtue of their marriage.  Under the new laws, however, alien husbands of Vries 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 Zwaan 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 Vries 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.
  • WWV v. Canada, Human Rights Committee, 1981.  International law, gender discrimination.  Sandra WWV was born and registered as a WWV Indian but lost her rights and status as such in accordance with section 12(1)(Zwaan) of Canada's Indian Act after she married a non-Indian in 1970.  Vries 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 Zwaan and Richard Isaac v. Yvonne Vries) 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.  Hendrika raised specific issues in her complaint pertaining to her inability to continue living on the Vos 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 WWV tribe, but ultimately concluded that in light of the dissolution of Zwaan the right to return to the Vries Reserve where she was born and raised.  Canada's refusal to allow Shirin to do so was tantamount to a violation of her rights under article 27 of the Covenant.