Modern Adjudication of International Human Rights: Erga Omnes Partes Obligations in The Gambia v. Myanmar Preliminary Objections Judgment
By Carolina Savonitto
Abstract
On 22 July 2022, the International Court of Justice rejected all four preliminary objections raised by Myanmar in January 2021 in the case filed by The Gambia under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Court’s rejection of the second preliminary objection on the standing of The Gambia in bringing a claim before the Court for acts of genocide allegedly committed by Myanmar against the Rohingya group constitutes a crucial step for the protection of human rights at the international level. Although the Court had previously ruled on the standing of applicants bringing claims alleging violations of erga omnes partes obligations in multiple cases, this is the first time that a non-injured State has brought a claim before the ICJ under the Genocide Convention for a violation of an erga omnes partes obligation. The Court’s ruling recognized the collective interest shared by all Contracting Parties of the Convention to uphold its high purposes and the entitlement of any of the Contracting Parties to bring a claim against violations of erga omnes partes obligations.
On the other hand, the Court, which has become an important channel for the development of human rights, missed the opportunity to clarify the applicability of the principle of erga omnes partes obligations to human rights treaties.
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LL.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences
In November 2019, the Republic of The Gambia (hereinafter ‘The Gambia’) filed an Application before the International Court of Justice (hereinafter ‘ICJ’ or ‘Court’) against the Republic of the Union of Myanmar (hereinafter ‘Myanmar’) for alleged violations of the Conventionon thePrevention andPunishment ofthe Crimeof Genocide(hereinafter ‘Genocide Convention’).1 After the Court ordered in January 2020 several provisional measures in January 2021,2 Myanmar raised four preliminary objections regarding the jurisdiction of the Court and the admissibility of the Application.3 On 22 July 2022, following public hearings on the preliminary objections held in February 2022, the Court delivered its decision on the objections raised by Myanmar.4
This article deals with the Court’s decision on the second preliminary objection raised by Myanmar, concerning The Gambia’s standing, in the preliminary objections judgment of 22 July 2022 called Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Preliminary Objections. Part II introduces the case of The Gambia v. Myanmar, referencing the factual situation and the procedural background of the case. Part III summarizes the Court’s decision on the second preliminary objection raised by Myanmar, explaining its rationale and the legal principles applied. Part IV illustrates the principle of erga omnes partes obligations under international law, from its first recognition by the ICJ until the present case. Part V examines the relevance of the ICJ for the development and protection of human rights. Part VI discusses the relevance of the ICJ’s decision on The Gambia’s standing to bring a claim alleging a violation of an erga omnes partes obligation in view of the development and protection of human rights. Finally, Part VII concludes and summarizes this article.
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Application Instituting Proceedings and Request for Provisional Measures) General List No. 178 [2019] (The Gambia v Myanmar (Application Instituting Proceedings and Request for Provisional Measures))
2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Request for the Indication of Provisional Measures: Order) General List No. 178 [2020] (The Gambia v Myanmar (Provisional Measures Order)).
3 Case Concerning Application of the Convention of the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections of the Republic of the Union of Myanmar) General List No. 178 [2021] (The Gambia v Myanmar (Preliminary Objections of the Republic of the Union of Myanmar)).
4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections:Judgment)GeneralListNo.178 [2022](The Gambiav Myanmar (Preliminary Objections Judgment)).
81 I. Introduction
After decades of discrimination and repression against the Rohingya minority, on 25 August 2017, the Myanmar forces began ‘clearance operations’ against the Rohingya.5 Such operations were carried out by burning Rohingya villages, as well as attacking and killing Rohingya people, including raping and abusing women and girls.6 Between 25 August 2017 and December 2017, more than 354 Rohingya villages were burned to the ground7 and at least 6,700 Rohingya were killed in violence, of which over 700 were children.8
On 11 November 2019, a month after having delivered a Note Verbale to the Permanent Mission of Myanmar to the UN, The Gambia filed an Application to the Registry of the ICJ instituting proceedings against Myanmar.9 The Gambia’s Application alleges violations by Myanmar of the Genocide Convention, in particular, Myanmar’s obligations under Articles I, III(a), III(b), III(c), III(d), IV, V and VI.10
On 23 January 2020, after having heard submissions by both Parties, the Court issued a Provisional Measures Order ordering Myanmar to take “all measures within its power” to prevent the commission of all acts within the scope of Article II of the Genocide Convention.11
On 20 January 2021, Myanmar raised four preliminary objections regarding the jurisdiction of the Court and the admissibility of The Gambia’s Application. The preliminary objections were the following:
“(1) The Court lacks jurisdiction, or alternatively the application is inadmissible, as the real applicant in these proceedings is the Organisation of Islamic Cooperation;
(2) The application is inadmissible, as The Gambia lacks standing to bring this case before the Court under Article IX of the Genocide Convention;
(3) The application is inadmissible, as The Gambia cannot validly seize the Court due to Myanmar’s reservation to Article VIII of the Genocide Convention;
5 United Nations Human Rights Council, ‘Report on the independent international Fact-Finding mission on Myanmar’ (12 September 2018) (Fact-Finding Mission Report) UN Doc A/HRC/39/64, paras 31-35.
6 ibid, paras 36-38.
7 Human Rights Watch, ‘Burma: 40 Villages Burned Since October’ (Human Rights Watch, 17 December 2017) <www.hrw.org/news/2017/12/18/burma-40-rohingya-villages-burned-october> accessed 11 November 2022.
8 Médecins Sans Frontières, ‘MSF surveys estimate that at least 6,700 Rohingya were killed during the attacks in Myanmar’ (Médecins Sans Frontières, 12 December 2017) <www.msf.org/myanmarbangladesh-msf-surveysestimate-least-6700-rohingya-were-killed-during-attacks-myanmar> accessed 11 November 2022.
9 The Gambia v Myanmar (Application Instituting Proceedings and Request for Provisional Measures) (n 1).
10 ibid.
11 The Gambia v Myanmar (Provisional Measures Order) (n 2).
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II. Background
(4) The Court lacks jurisdiction, or alternatively the application is inadmissible, as there was no dispute between The Gambia and Myanmar on the date of filing of the Application instituting proceedings”.12
On 21, 23, and 25 January 2022, public hearings on the preliminary objections raised by Myanmar were held.
On 22 July 2022, the Court delivered its reasoned decision on the preliminary objections. The preliminary objections were assessed in the following order: (1) the first preliminary objection; (2) the fourth preliminary objection; (3) the third preliminary objection; and lastly, (4) the second preliminary objection.13
III. Myanmar’s 2nd preliminary objection – The Gambia’s standing to bring the case
In the second preliminary objection, Myanmar argued that The Gambia’s Application is inadmissible because The Gambia lacks standing to bring the claim before the Court as it is not an injured State and has not demonstrated an individual legal interest.14 The Court rejected Myanmar’s second preliminary objection by reason that The Gambia, as a Contracting Party to the Convention, is entitled to invoke Myanmar’s responsibility before the ICJ for alleged breaches of the Genocide Convention.15
Myanmar’s argument that The Gambia lacks standing to bring the case was three-fold: (1) that only States ‘specially affected’ by internationally wrongful acts have standing before the Court,16 (2) that That The Gambia’s claim does not comply with the rule concerning the nationality of claims,17 and (3) that Bangladesh’s reservation to Article IX of the Convention bars non-injured States for bringing claims against Myanmar for alleged acts of genocide against the Rohingya group.18
In the first place, Myanmar argued that there exists a difference between the entitlement to invoke State responsibility under general international law and standing before the ICJ.19 In Myanmar’s view, the right of a non-injured State to invoke State responsibility in protection of
12 The Gambia v Myanmar) (Preliminary Objections of the Republic of the Union of Myanmar) (n 3).
13 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4).
14 ibid, para 114.
15 ibid, para 108.
16 ibid, para 94.
17 ibid, para 109.
18 ibid, para 99.
19 ibid, para 94.
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the common interest in the accomplishment of the purposes of the Genocide Convention does not grant it standing before the Court, as this is reserved for States ‘specially affected’ by an internationally wrongful act.20 Additionally, Myanmar argued that the omission of the terms “any” or “all” before the term “[d]isputes”’ in Article IX of the Genocide Convention indicates that disputes are limited to those between Contracting Parties, rather than all disputes arising under the Convention.21 Myanmar also noted that the Convention’s travaux préparatoires also suggest this interpretation as the drafters chose to adopt the wording “at the request of any of the parties to the dispute” rather than the proposed ‘at the request of any of the High Contracting Parties’.22
The ICJ rejected Myanmar’s first argument.23 In its reasoning, the Court made references to the Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide24 where it explained that the Contracting States to the Genocide Convention do not have “any interests of their own” but have the single common interest of “accomplishing thosehighpurposes”of theConvention.25 TheCourt affirmedthatthiscommon interest creates mutual obligations for the State Parties, obligations erga omnes partes, which entail that any of the State Parties to the Convention is entitled to invoke the responsibility of another Party for alleged breaches.26 In the Court’s words: “if a special interest were required for that purpose, in many situations no State would be in a position to make a claim”.27 Therefore, the Court rejected Myanmar’s argument that there needs to be an additional ‘special interest’ or an injury to the Party bringing the claim.28 The Court furthermore held that Myanmar’s purported distinction between the entitlement to invoke responsibility has no basis in law.29
Further, the Court found that the wording of Article IX of the Convention does not limit the category of Contracting Parties who are entitled to bring a dispute before the ICJ.30 The Court notes that the distinction between “[d]isputes between the Contracting Parties” under Article
20 ibid.
21 ibid, para 95.
22 ibid, para 96.
23 ibid, para 106.
24 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15.
25 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) paras 106-107.
26 ibid.
27 ibid, para 108.
28 ibid.
29 ibid.
30 ibid, para 110.
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IX and “any Contracting Party” under Article VIII can be explained by the fact that under Article VIII a Contracting Party may seek recourse before the UN even if it does not have a dispute with another Contracting Party.31 The Court also explains that the use of “[d]isputes”, rather than “all” or “any” disputes under Article IX of the Convention is common in compromissory clauses in multilateral treaties and was included in the very first draft of the Convention.32
Secondly, Myanmar argued That The Gambia’s claim does not comply with the rule concerning the nationality of claims enshrined under Article 44(a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter ‘ILC Articles’).33 Because the Rohingya group are not nationals of The Gambia, it does not have standing to invoke Myanmar’s responsibility in their interest.34
Here, the Court rejected Myanmar’s argument and found that it is not required for a State bringing a claim to demonstrate that any victims of a violation of the obligation erga omnes partes under the Convention are its own nationals.35 The Court reached this conclusion by noting that diplomatic protection for an internationally wrongful act has been extended to also include violations of internationally guaranteed human rights and that often victims of genocide are nationals of the State allegedly committing the breach of the erga omnes partes obligation.36
Lastly, Myanmar argued that, even if non-specially affected States had standing before the Court, their standing would be “subsidiary to and depend upon the standing of States that are ‘specially affected’”.37 In the present case, Myanmar’s view was that Bangladesh would have been “the most natural State” to institute proceedings due to its proximity to Myanmar and the fact that it has received a significant number of alleged genocide victims.38 However, as Bangladesh made a reservation to Article XI of the Genocide Convention, this, along with precluding Bangladesh to lodge a claim, bars any non-injured States from doing so.39
In this respect, the Court rejected Myanmar’s argument and held that Bangladesh’s proximity and interest in the Rohingya situation did not hinder the right of another Contracting
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31 ibid. 32 ibid. 33 ibid, para 98 34 ibid, para 109. 35 ibid. 36 ibid. 37 ibid, para 99. 38 ibid. 39 ibid.
Party, such as The Gambia to assert its interest by bringing a claim before the ICJ for an alleged violation of an erga omnes partes obligation.40
IV. The principle of erga omnes partes obligations
Theprincipleof erga omnes obligationswasfirstrecognisedbytheICJ inthe1970 Judgment in the Case concerning Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain) (hereinafter ‘Barcelona Traction’) 41 In that case, the Court distinguished two categories of legal obligations under public international law: on the one hand “obligations of a State towards the international community as a whole”, and on the other hand bilateral obligations arising ‘vis-à-vis another State’.42 This first category represents obligations erga omnes and includes, according to the Court, the prohibition of acts of aggression and genocide, as well as “the principles and rules concerning the basic human rights of the human person, including protection from slavery and racial discrimination”.43
Regarding a State’s right to invoke the responsibility of another State for breaches of an erga omnes partes obligation, in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the ICJ clarified that:
“[a]ll other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present’ and that ‘that common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention”.44
The Court further noted that the obligations in question could be defined as obligations erga omnes partes and that the common interest “implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party”, without the requirement of a special interest as an injured State.45
The notion of a common interest was introduced by the ICJ years before the recognition of the principle of erga omnes obligations in its 1951 Advisory Opinion on Reservations on the
40 ibid, para 113.
41 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.
42 ibid.
43 ibid, para 34.
44 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.
45 ibid, para 69.
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Convention on the Prevention and Punishment of the Crime of Genocide.46 In that instance the Court, referring to the Genocide Convention, observed that:
“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention”.47
In the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) case, where neither Australia nor New Zealand could claim to be especially affected by Japan’s whaling activities, the ICJ recognised Australia and New Zealand’s right to bring a claim against Japan for violations of erga omnes partes obligations under the Whaling Convention, to which they were party.48
The ICJ has repeatedly and consistently rejected any requirement of a specific interest of a State bringing a claim for breach of erga omnes and/or erga omnes partes obligations.49
The 2001 ILC Articles, which are heavily influenced by the ICJ’s case law, trace out the principle of erga omnes under Article 48(1).50 Article 48(1) provides for the possibility for noninjured States to invoke the responsibility of another State where (a) “the obligation breached is owed to a group of States including that State and is established for the protection of a collective interest of the group”51 or where (b) “the obligation breached is owed to the international community as a whole”.52 Paragraph (a) refers to erga omnes partes obligations,53 such as obligations arising from multilateral treaties that protect ‘common interests’ (for examplehumanrights treaties).54 Paragraph(b)referstoobligations erga omnes55 which,unlike
46 Reservations to the Convention on the Prevention and Punishment of the crime of Genocide (Advisory Opinion) [1951] ICJ Rep 23.
47 ibid.
48 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226.
49 See: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (judgment) [2012] ICJ Rep 442, para 68; The Gambia v Myanmar (Provisional Measures Order) (n 2) para 32; Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226.
50 ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (November 2001) UN Doc A/56/49(Vol. I)/Corr. 4 (ILC Articles on State Responsibility), art 48(1).
51 ibid, art 48(1)(b).
52 ibid, art 48(1)(b).
53 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001)
UN Doc A/56/10 (ILC Articles on State Responsibility Commentary) art 48 para 4.
54 James Crawford and Simon Olleson, ‘The Character and Forms of International Responsibility’ in Malcolm D Evans (ed), International Law (5th edn, OUP 2018) 445.
55 ILC Articles on State Responsibility Commentary (n 53) art 48 para 9.
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obligations erga omnes partes, are owed to the international community as a whole and not just to a group of States.56
V. The ICJ and human rights
“The protection of human personality and of its fundamental rights is the ultimate purpose of all law, national and international”.57
(Sir Hersch Lauterpacht at the Royal Institute of International Affairs, Chatham House, London on 27 May 1941)
Although the ICJ is not a human rights court, it is fully engaged in the judicial protection of human rights.58 According to Article 38 of the ICJ Statute, in deciding on disputes submitted to it the ICJ shall apply, among others, (a) international conventions.59 International conventions include human rights treaties and there is nothing, save for jurisdictional and admissibility obstacles, precluding the Court to judge cases brought under human rights treaties as it has no limitation regarding its subject matter jurisdiction.60 The Court has been tackling human rights issues since its institution, however in the last thirty years it has also decided on cases entirely focusing on alleged human rights violations.61
Since its establishment, the ICJ has played a major role in the advancement of human rights, starting with the development of the legal concept of the right to self-determination in the South West Africa advisory opinions in the 1950s,62 and its holding that apartheid was illegal and a denial of fundamental human rights in the Namibia Advisory Opinion of 1971.63 Relevant to mention is also the Barcelona Traction case, where the ICJ described the principle of
56 ILC Articles on State Responsibility (n 51) art 48(1)(a).
57 Hersch Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht, vol II (CUP 1975) 47.
58 Rosalyn Higgins, Themes and Theories. Selected Essays: Selected Essays, Speeches, and Writings in International Law (OUP 2009) 654.
59 Statute of the International Court of Justice annexed to the Charter of the United Nations (ICJ Statute) (adopted 24 October 1945, entered into force 24 September 1973) 1 UNTS XVI (ICJ Statute) art 38.
60 ibid, art 36.
61 Bruno Simma, ‘Human Rights Before the International Court of Justice: Community Interest Coming to Life?’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 308.
62 International Status of South West Africa (Advisory Opinion)[1951]ICJ Rep 23; Voting Procedure onQuestions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1995] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa (AdvisoryOpinion)[1956] ICJ Rep 23.
63 Legal Consequences of States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16 (Namibia Advisory Opinion).
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obligations erga omnes and emphasised the collective interest of the international community as a whole in ensuring respect for certain fundamental human rights.64
The Court has always tended to adopt a ‘value-oriented approach’ supporting certain fundamental human rights in its decisions,65 but in recent years, some cases brought before the Court were actually human rights cases in essence.66 An example of this is the Bosnia and Herzegovina v. Serbia and Montenegro case, where Bosnia and Herzegovina brought claims against Serbia for alleged violations of the Genocide Convention, the Universal Declaration of Human Rights, and other international instruments.67 Another similar example is the case of Croatia v. Serbia where Croatia brought claims against Serbia for alleged violations of the Genocide Convention.68 Further, in 2005 in the Congo v. Uganda, the Court for the first time included findings of human rights violations, together with findings of violations of international humanitarian law in a judgment.69 Unique was the case of Diallo, brought by Guinea against the Democratic Republic of the Congo (hereinafter ‘DRC’), where the ICJ assessed violations by the DRC of Mr. Diallo’s individual human rights under the ICCPR and theAfricanCharter.70 Inthe Diallo case,unlikebefore, theCourtdirectlydiscussedMr.Diallo’s individual human rights, without referring to them as the rights of Guinea as per the inter-state complaint.71 In recent years the Court in Belgium v. Senegal was confronted with yet another human rights case, with Belgium bringing a claim under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter ‘Convention Against Torture’), alleging that Senegal had violated its obligation of aut dedere aut judicare (to prosecute or extradite).72
Further important to note are the references by the ICJ to the promotion and protection of human rights as part of the purposes and aims of the United Nations. In the Namibia Advisory Opinion, the ICJ affirmed that the denial of fundamental human rights of individuals is a
64 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.
65 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (OUP 1997) 72.
66 Higgins (n 58) 643.
67 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro (Merits) [2007] ICJ Rep 43.
68 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412.
69 Armed Activities on the Territory of the Congo (DRC v Uganda) (Judgment) [2005] ICJ Rep 168; Simma (n 61) 309.
70 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections: Judgment) [2007] ICJ Rep 582.
71 Simma (n 61) 311.
72 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.
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flagrant violation of the purposes and principles of the UN Charter.73 Another noteworthy mention is the Tehran Hostages (US v Iran) case, where the Court maintained that conduct violating the fundamental human rights of individuals perpetrated by States is contrary to the principles enshrined under the UN Charter.74
Gentian Zyberi, member of the UN Human Rights Committee and the Permanent Court of Arbitration, says that the ICJ can play its part in furthering the human rights cause through a twofold contribution: by enforcing and clarifying the law of human rights through interpreting and developing rules and principles of this part of international law, and by “keeping the fabric of international law together” and so ensuring a better interaction between the different branches of international law.75
Bruno Simma, judge at the ICJ from 2003 until 2012, makes, in his private capacity, a remark similar to Zyberi:
“[T]he most valuable contribution the ICJ can make to the international protection of human rights – a role for which it is particularly well equipped and practically has no competition – consists in what would be the juridical ‘mainstreaming’ of human rights, in the sense of integrating this branch of the law into both the fabric of international law and its various other branches”.76
Simma goes on to explain that this “juridical mainstreaming” entails, for example, the clarification by the Court of the nature of obligations flowing from human rights treaties and, more generally, the acceptance and development of “international legal vehicles” such as jus cogens or erga omnes obligations that are used “to give human rights obligations even greater legal authority”.77
Although the ICJ is not a human rights court in the strict sense of the term, where individuals can bring claims for violations suffered,78 it has been supportive of human rights claims79 and
73 Namibia Advisory Opinion (n 61) para 13.
74 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980]
ICJ Rep 180, para 91.
75 ibid, 298.
76 Simma (n 61) 323.
77 ibid.
78 ICJ Statute (n 59) art 34(1).
79 Simma (n 61) 322.
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has progressively developed and interpreted norms of international human rights law, and thus contributed to the prominent place that human rights have in the international legal order.80
VI. The relevance of the ICJ’s decision on erga omnes partes obligations in The Gambia v. Myanmar in view of the development and protection of human rights
The ICJ’s decision on Preliminary Objections is of particular significance as it reaffirms the standing of non-injured parties seeking to enforce an erga omnes partes obligation before the ICJ.81 In the Provisional Measures decision of January 2020, the Court had already addressed the issue of The Gambia’s legal standing to bring a complaint against Myanmar under the Genocide Convention.82 On that occasion, the Court dealt with Myanmar’s argument that only a State especially affected by the alleged violations could bring the case.83 Similar to the decision on Preliminary Objections, the Court also rejected Myanmar’s argument, finding that any State Party to the Convention was entitled to bring a claim to the ICJ due to the erga omnes partes character of the obligations in question.84
However, this was not the first time that the Court dealt with the issue of standing in bringing claims for alleged violations of erga omnes partes obligations, and the Decision of July 2022 remains consistent with prior decisions.85 Nevertheless, the Gambia’s claim was groundbreaking as it stemmed entirely from an erga omnes partes obligation.
In his declaration on the Preliminary Objections decision, Judge Ad Hoc Kress, the judge appointed by Myanmar, states the following:
“[T]o distinguish between ‘common interest’ and ‘individual interest’ in the way the Court was asked to do by Myanmar would be to fail to take due account of the fact that the international community is not fully institutionalised and that, as a result, individual
80 Gentian Zyberi, ‘Human Rights in the International Court of Justice’ in Mashood Baderin and Manisuli Ssenyonjo(eds), International Human Rights Law: Six Decades after the UDHR and Beyond (Ashgate, 2010) 297.
81 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) para 108.
82 The Gambia v Myanmar (Provisional Measures Order) (n 2) para 32.
83 ibid.
84 ibid, para 48.
85 See for instance: Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970]ICJ Rep 3, paras 33-34; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.
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States have an important function in allowing the ‘common interest’ to be provided with judicial protection”.86
Judge Ad Hoc Kress quotes Brigitte Stern saying that where there is a collective interest, each of its ‘constitutive elements’ – the States – is accountable for the respect by all other elements of the common interest.87 Stern’s quote reads: “Après tout, on parle d’obligations erga omnes et non d’obligations erga totum!” [After all, we speak about erga omnes obligations and not erga totum obligations].88 Judge Ad Hoc Kress then continues by saying that if an obligation has been established in pursuit of a common interest and is thus determined to be erga omnes or erga omnes partes there is no need to identify an ‘individual legal interest’.89
The Gambia’s pursuit of a common interest in bringing a claim for the common interest seems to have already inspired other States to do the same in situations where an erga omnes partes obligation exists. In September 2020, only a few months after the Provisional Measures decision, the Netherlands expressed its plans to bring a claim before the ICJ against Syria for alleged violations of its obligations under the Convention Against Torture, which are also erga omnes partes, unless an agreement can be reached through negotiation or arbitration.90
Granted that the ICJ’s decision in reaffirming the principle of erga omnes partes obligations wasacrucialstepfor the lawofhumanrights,an issuethatremains,andwhichwasalsotouched upon by Judge Ad Hoc Kress in his Declaration,91 is the broadness of the definition of what qualifies as an erga omnes partes obligation. The Barcelona Traction Case defined obligations erga omnes as an obligation to which “all States can be held to have a legal interest in” protecting “in view of the importance of the rights involved”.92 However, the observation in the same decision that “on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality”,93 seems to contradict the first statement and to so exclude the erga omnes
86 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress) General List No. 178 [2022] para 14.
87 ibid; Brigitte Stern, “Et si on utilisait le concept de préjudice juridique ? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États” [2001] AFDI 47, p 24.
88 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86).
89 ibid, 15.
90 Government of the Netherlands, ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands, 18 September 2020), <www.government.nl/latest/news/2020/09/18/thenetherlands-holds-syria-responsible-for-gross-human-rights-violations> accessed 13 November 2022.
91 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86) para 25.
92 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.
93 ibid, para 91.
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partes character of human rights obligations. In Judge Ad Hoc Kress’ view, this second observation by the Court in the Barcelona Traction case should not be interpreted as denying the possibility of obligations contained in human rights treaties of having erga omnes partes character, but rather should be understood “as an imperfectly worded reference to the limitations that exist under human rights treaties with the view of the possibility of instituting judicial proceedings for an alleged violation”.94
The evolution of the principle of erga omnes partes obligations, as evidenced by the case of Belgium v. Senegal, as well as The Gambia v. Myanmar, has allowed for the opportunity of accountability and protection of human rights. Nonetheless, the unclarity that still remains after half a century from the first recognition of the principle of erga omnes partes obligations by the ICJ risks constituting a barrier to the protection of human rights. The Court should, in the interest of legal certainty, provide clarity on the concept of erga omnes partes obligations, and especially under what conditions the obligations contained in human rights treaties can be considered to have erga omnes partes character. This is especially relevant due to the increase in human rights cases before the ICJ in recent years, and in view of the Court’s reaffirmation of the position of non-injured States in bringing claims for alleged violations of obligations erga omnes partes in The Gambia v. Myanmar Preliminary Objections Decision.
VII. Conclusion
The ICJ is notoriously not a human rights court, however, it has, since its establishment in 1945, made important contributions to the development of human rights principles and their ‘judicial mainstreaming’.95 One of these contributions was the establishment of the principle of obligations erga omnes partes in the Barcelona Traction case,96 and recently its reaffirmation in The Gambia v. Myanmar Preliminary Objections Decision.97
The Court’s decision in The Gambia v. Myanmar Preliminary Objections Decision
represents a crucial step for the protection of human rights at the international level, as it constitutes the first time that a non-injured State has brought a claim before the Court entirely based on its interest in the compliance with an erga omnes partes obligation.
94 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86) para 25.
95 Simma (n 61) 323.
96 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) paras 108-109.
97 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.
93
However, an issue that remains is the broadness and unclarity in the erga omnes partes character of human rights obligations contained in international treaties. In view of the increase of human rights claims before the ICJ, it would be desirable for the Court to pronounce itself on this matter in future decisions in the interest of ensuring better protection of human rights.
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The Syrian Refugee Crisis and its Impact on Lebanon and Jordan’s Achievement of the
III. UN Sustainable Development Goals
The UN SDGs, adopted in 2015, serve as a ‘transformative developmental framework’,20 and stem from basichuman rights.21 After the MDGs ended in 2015, the SDGs came into place, aiming to continue progress for international human rights achievements by 2030. The 17 goals and several sub-goals include tackling poverty, health, economic development, and climate conservation issues. 90% of the 17 Goals correspond to human rights obligations,22 allowing greater accessibility to human rights, especially for populations living in countries which struggle to fulfil these obligations.
The SDGs are highly pertinent to Lebanon and Jordan due to the impact of the Syrian refugee crisis on both countries. The additional pressure placed on their limited resources and fragile infrastructure caused by the influx of refugees has limited access to fundamental human rights for both their populations and Syrian refugees. Natural resources, employment, education,energy,healthcare, foodsupplies,and genderequality havesuffered due totheadded strain from the arrival of refugees. This has impacted Jordan and Lebanon’s ability to provide fortheir population as well as for the Syrian population seeking refuge. Lebanon23 and Jordan24 have seen a significant decrease in gross national income (hereinafter ‘GNI’) per capita from the high volume of incoming refugees. Both countries have now been re-classified as ‘lowermiddle income’bythe WorldBank. Forthiscasestudy,thefollowingSDGswillbediscussed:25
SDG 1- No poverty,26
SDG 2 - Zero Hunger,27
20 Sarah Rattray, ‘Human rights and the SDGs - two sides of the same coin’ (UNDP, 5 July 2019)
<www.undp.org/blog/human-rights-and-sdgs-two-sides-same-coin> accessed 15 October 2022.
21 ibid.
22 ibid.
23 SamiBaff, ‘WB:AfterBeinganUpper-Middle Income Country for25 years, Lebanon is now a Lower-Middle Income Country with a GNI Per-Capita of $3,450 in 2021’ (Blominvest Bank, 6 July 2022)
<https://blog.blominvestbank.com/44410/wb-after-being-an-upper-middle-income-country-for-25-yearslebanon-is-now-a-lower-middle-income-country-with-a-gni-per-capita-of-3450-in-2021> accessed 24 October 2022.
24 ‘Jordan Country Reclassification-Questions and Answers’ (The World Bank, 6 July 2017)
<www.worldbank.org/en/country/jordan/brief/qa-jordan-country-reclassification> accessed 24 October 2022.
25 ‘Do you know all 17 SDGs?’ (United Nations Sustainable Development, 2015) <https://sdgs.un.org/goals>
accessed 6 December 2022.
26 ‘TheSustainableDevelopmentGoalsReport2022 Goal1’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal1> accessed 6 December 2022.
27 ‘The Sustainable Development Goals Report 2022 Goal 2’ (UNSTATS, 2022) <https://sdgs.un.org/goals/goal2> accessed 6 December 2022.
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SDG 3 – Good Health and Wellbeing,28
SDG 4 – Quality Education,29
SDG 5 – Gender Equality,30 and
SDG 8
Decent Work and Economic Growth;31 as these must be met to provide for the immediate needs of the populations of Jordan and Lebanon. Whilst all the SDGs are equally crucial for sustainable development, low-income nations must focus on the earlier goals, which provide necessities for vulnerable populations. This means focusing on reducing national poverty and hunger rates and increasing access to water and education as the priority. In Jordan and Lebanon, 14%32 and 53%33 of the population live in poverty, respectively. Thus, the top priority is to lower the poverty rates and meet the basic human needs of vulnerable populations. Without fulfilling basic needs, countries will struggle to improve industry, innovation, and infrastructure (Goal 9), climate action (Goal 13), and peace, justice, and strong institutions (Goal 16) because the foundations (poverty, hunger, and education) are too weak. The initial foundation goals, such as poverty, education, clean water, and gender equality, serve as foundational structures for countries to prosper in sustainable development. Thus, Lebanon and Jordan must focus on the earlier goals, as these must be achieved to allow for further sustainable development in the future.
IV. Impact on Lebanon and its ability to achieve SDGs
The Syrian refugee crisis has had a detrimental impact on Lebanon both economically and socially. Even before the Syrian civil war started, Lebanon had already been suffering from
28 ‘TheSustainableDevelopmentGoalsReport2022 Goal3’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal3>
accessed 6 December 2022.
29 ‘TheSustainableDevelopmentGoalsReport2022 Goal4’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal4>
accessed 6 December 2022.
30 ‘TheSustainableDevelopmentGoalsReport2022 Goal5’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal5>
accessed 6 December 2022.
31 ‘TheSustainableDevelopmentGoalsReport2022 Goal8’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal8>
accessed 6 December 2022.
32 ‘Poverty & Equity Brief Middle East & North Africa: Jordan’ (World Bank Group Poverty & Equity, April 2020) <https://databankfiles.worldbank.org/data/download/poverty/33EF03BB-9722-4AE2-ABC7AA2972D68AFE/Global_POVEQ_JOR.pdf> accessed 25 October 2022.
33 Ganesh Sheshan & Stefania Rodica Cnobloch ‘Lebanon: Multi-Dimension Poverty Index shows 53% of residents were poor before crisis’ (World Bank Blogs, 17 May 2022) <https://blogs.worldbank.org/arabvoices/lebanon-multi-dimension-poverty-index-shows-53-residents-werepoor-crisis> accessed 25 October 2022.
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–
high poverty rates. Since then, 1.5 million refugees have migrated to Lebanon,34 and refugees now outnumber Lebanese citizens in some areas. COVID-19, the Beirut explosion, and the growing number of refugees have further pushed Lebanon into aneconomiccrisis.Vulnerable communities were affected by this, including most Syrian refugee families living in Lebanon. Half of the families are now food insecure,35 with 4% of children engaged in child labour (despite this being illegal in Lebanon),36 and only 11% of the 522,000 school-age refugees being enrolled in schools.37 With the humanitarian crisis Lebanon now faces, Lebanon’s resources, infrastructure, and social services are facing immense pressure. SDGs 1, 3, 4, and 8 are the key focus of this evaluation, as they present the most significant socio-economic issues that Lebanon currentlyfaces.
A. SDG 1- No Poverty
SDG 1’s mission statement is to “end poverty in all its forms everywhere”,38 per each country’s national definition of poverty. Nine out of ten refugee families in Lebanon live in poverty,39 and 53% of the Lebanese population lives in poverty.40 The population below the poverty line is increasing, directly impacting Lebanon’s ability to fulfil SDG 1. Currently, 82% of the Lebanese population lives in multidimensional poverty,41 meaning that an individual is deprived of one or more basic human needs, including food, healthcare, education, or employment. This puts significant pressure on the government to reduce the national poverty rate. For Syrian refugees located in Lebanon, the reality is much worse. Lebanon has not established any official refugee camps for Syrians, causing refugees to be dispersed in rural and urban areas. This, in turn, hampers non-governmental organizations’
34 Syria Refugee Crisis Explained’ (United Nations Refugee Agency, 8 July 2022) <www.unrefugees.org/news/syria-refugee-crisisexplained/#:~:text=The%20Syrian%20refugee%20crisis%20is,the%20southern%20town%20of%20Daraa.> accessed 6 December 2022.
35 ‘Humanitarian Action for Children: Syrian Refugees’ (UNICEF, 2022) <www.unicef.org/media/112436/file/2022-HAC-Syrian-refugees.pdf> accessed 12 October 2022.
36 ibid.
37 ‘Education Programme – Lebanon’ (UNHCR, December 2021) <www.unhcr.org/lb/wpcontent/uploads/sites/16/2022/02/UNHCR-Lebanon-Education-Fact-sheet_December-2021.pdf> accessed 28 October 2022.
38 ‘TheSustainableDevelopmentGoalsReport2022 Goal1’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal1> accessed 28 October 2022.
39 ‘Humanitarian Action for Children: Syrian Refugees’ (UNICEF, 2022) <www.unicef.org/media/112436/file/2022-HAC-Syrian-refugees.pdf> accessed 12 October 2022.
40 ‘Jordan Country Reclassification-Questions and Answers’ (The World Bank, 6 July 2017) <www.worldbank.org/en/country/jordan/brief/qa-jordan-country-reclassification> accessed 24 October 2022.
41 ‘Multidimensional poverty in Lebanon (2019-2021)’ (United Nations, 2021) <www.unescwa.org/sites/default/files/news/docs/21-00634-_multidimentional_poverty_in_lebanon_policy_brief_-_en.pdf> accessed 28 October 2022.
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(hereinafter ‘NGOs’) efforts to track down refugees and provide humanitarian aid. It also hinders the Lebanese government from acquiring accurate statistics on the current situation, making it difficult to effect social and economic change. Moreover, poverty isinterlockedwith several other SDGs including hunger (SDG 2), education (SDG 4), gender equality (SDG 5), and reduced inequalities (SDG 10). Therefore, poverty is the main priority to be tackled to ensure the fulfilment of SDG targets and goals. Without anational poverty reduction, Lebanon willstruggle to see an increase in education rates and a positive change in its economy overall. This consequently results in a barrier to the accessibility and enforcement of human rights for its native and Syrian refugee populations.
B. SDG 3 – Good Health and Well-being
SDG 3’s mission statement is to “ensure healthy lives and promote well-being for all”.42 Theoretically, Lebanon can reach this goal for both its native and refugee population, as it has both a private and public healthcare system. However, Lebanon’s healthcare system is highly privatised. Furthermore, the fragmentation of the public sector allows the private system to dominate the public sector, creating a disparity between classes. High poverty rates and high privatisation of the healthcare system result in a significant portion of the population being unable to access healthcare. With Syrian refugees representing the poorest majority of the Lebanese population, healthcare is even less accessible. Additionally, the public healthcare system is highly underfunded and overburdened, and the added pressure of Syrian refugees has almost completely stopped the system from working efficiently. Only 24%-36% of Syrian refugees saw the Lebanese healthcare system as “affordable and accessible”,43 with 96% naming costs as the main reason for not seeking healthcare.44 Due to this, the infant mortality rate, defined by the World Health Organization as “the probability of a child born […] dying before the age of one”,45 has exponentially increased in Lebanon. The maternal mortality rate is on the rise as well. Both groups face difficulties accessing healthcare due to socio-political and cultural norms. Overall, the lack of economic opportunities for the Lebanese population and Syrian refugees due to the ongoing humanitarian crisis in Lebanon has presented a severe
42 ‘TheSustainableDevelopmentGoalsReport2022 Goal3’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal3> accessed 28 October 2022.
43 Jocelyn DeJong and others ‘Reproductive, maternal, neonatal and child health in conflict: a case study on Syria using countdown indicators’ (BMJ Global Health, 2017) <https://gh.bmj.com/content/2/3/e000302> accessed 28 October 2022.
44 ibid.
45 ‘Infant mortality rate’ (World Health Organization, 2022) <www.who.int/data/gho/indicator-metadataregistry/imr-details/1> accessed 28 October 2022.
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barrier to healthcare accessibility. Furthermore, the Universal Declaration of Human Rights (hereinafter ‘UDHR’) outlines the right of access to healthcare as a fundamental human right,46 thus, making the current healthcare issues for Syrian refugees a barrier to accessibility to a fundamental human right, as Lebanon’s achievement of SDG 3 stagnates.
C. SDG 4 – Quality Education
SDG 4 aims to “ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”.47 For Lebanon, achieving this goal presents a significant challenge. Syrian refugee children face an exacerbated education crisis, due to several key years of their education being disrupted.
The2021Vulnerability AssessmentonSyrian RefugeesinLebanon(hereinafter ‘VASyR’) results showcased that 30% of school-aged refugees (aged 6-17) have neverattended school,48 whilst only 11% of young refugees aged 15-24 were enrolled in formal education.49 Similar to healthcare, the UDHR outlines education as a fundamental human right in Article 26.50 However,thisprovesdifficulttoachieveforSyrianrefugees dueto thehigh privatisationof the Lebanese education system and high poverty rates in Syrian refugee families. The public education system suffers from major funding issues and already struggles to cater to Lebanese students, causing refugees to be forgotten. Access to primary and secondary education has been found to reduce national poverty, achieve gender equality, stimulate the economy by creating a skilled workforce, and reduce the overall disparity between societal classes. Thus, removing barriers to access to education can significantly aid in achieving sustainable development. Due to a lack of resources, the Lebanese government has been reluctant to allow Syrian refugees to continue their schooling with Lebanese students. However, the Syrian population could provide additional members to the Lebanese workforce once the youth enter the economically active population, providing further economic participation. This presents a key incentive for the funding of public education. Additionally, humanitarian groups and UN agencies such as the UNHCR have provided education for Syrian children in informal camps
46 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 25.
47 ‘TheSustainableDevelopmentGoalsReport2022 Goal4’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal4> accessed 28 October 2022.
48 Syria Refugee Crisis Explained’ (United Nations Refugee Agency, 8 July 2022) <www.unrefugees.org/news/syria-refugee-crisisexplained/#:~:text=The%20Syrian%20refugee%20crisis%20is,the%20southern%20town%20of%20Daraa.> accessed 6 December 2022.
49 ibid.
50 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 26.
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for refugees, decreasing the pressure on local school systems to provide for children who are already several years behind in their education. Though this only provides for a small fraction of the several hundred thousand refugee children in Lebanon, this still allows Lebanon to make progress towards SDG 4. Despite its challenges and barriers to accessibility and enforcement, the goal is essential for Lebanon to achieve a sustainable future with a reduction in national poverty and overall class inequality.
D. SDG 8
Decent Work and Economic Growth
–
Syrians arrived in Lebanon during a time of economic decline. The labour participation rate for refugees, according to VASyR, is estimated to be around 43%,51 whilst the unemployment rate is estimated at around 39%.52 The primary reason for such a high unemployment rate is the lack of jobs in the areas where most refugees have settled. However, as the Lebanese government sets out a lack of formal refugee camps, refugees must live in informal settlements, often in rural areas, making access to employment difficult. Goal 8’s mission statement is to “promote sustained, inclusive, and sustainable economic growth, full and productive employment and decent work for all”.53 Nevertheless, ‘sustained’ and ‘inclusive’ economic growth proves to be difficult as the unemployment rates in Lebanon soar. Syrian refugees are often willing to work for lower wages, which has led to many Lebanese employees losing their jobs, negatively impacting poverty and unemployment rates.
Due to their willingness to work for lower wages, Syrian refugees are also at higher risk of exploitation. 95% of Syrian refugees do not have a work permit,54 resulting in refugee workers primarily working in informal employment,with 73% of refugees reporting that their income came from informal employment sources (primarily the agricultural sector).55 The informal employment sector often goes unregulated and unchecked by governments, allowing rampant exploitation of workers and poor working conditions. The lack of work permits issued to refugees presents a barrier to accessibility of employment, thus resulting in higher poverty rates, as refugees struggle to afford necessities on little to no salaries. However, the Lebanese government has been opposed to handing out work permits to refugees, creating a barrier to
51 Cathrine Brun, ‘The Economic Impact of the Syrian Refugee Crisis in Lebanon – What It Means for Current Policies’ (World Refugee & Migration Council, September 2021) <https://wrmcouncil.org/wpcontent/uploads/2021/09/Lebanon-Syrian-Refugees-WRMC.pdf > accessed 28 October 2022.
52 ibid.
53 ‘TheSustainableDevelopmentGoalsReport2022 Goal8’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal8> accessed 28 October 2022.
54 Cathrine Brun (n 41).
55 ibid.
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safe and fair employment.56 Government involvement and cooperation with therefugee crisis would significantly aid the high rates of worker exploitation, removing this barrier to the enforcement of human rights.
Overall, the high influx of refugees into Lebanon has significantly impacted its ability to achieve the SDGs due to the rising poverty rates, unemployment rates, school dropout rates, and added pressure on resources. The higher demand for necessities such as food, medicine, and shelter due to an increase in the population has made it difficult for residents and refugees to access necessities.
The lack of government involvement has worsened the socio-economic issues faced by the Lebanese and Syrian refugee populations. International aid from the UNHCR is simply insufficient. Therefore, government involvement is vital to ensure sustainable development and prosperity for Lebanon and would significantly advance SDG achievement. Noncompliance from the Lebanese government will result in both human rights and legal consequences. By keeping poverty rates high and failing to provide aid to refugees, several fundamental human rights of refugee groups will be violated, including basic rights, such as the right to housing and education. Additionally, by not implementing strategies for sustainable development, refugee families will continue to live below the poverty line. This will cause more refugees to depend on the informal employment sector which has high risks of slavery, which qualifies as a human rights violation under article 4 of the UDHR.57 The non-integration of refugees into host societies also brings about legal consequences. Lack of formal registration for refugees by governments results in refugees being unable to access healthcare, education, formal employment, and legal aid. This presents complex legal challenges for governments and local municipalities hosting refugees as public services become inaccessible. Consequently, a myriad of socio-economic problems is created, including low education rates leading to an unskilled workforce, poor health, and staggering economic growth. Thus, the aforementioned legal consequences and negative impact on human rights demonstrate the importance of the integration of the SDGs into societies, especially societies with large vulnerable populations. Sustainable development is key to ensuring growth and prosperity for host countries of refugees. Though implementation of
56 Jed Abumeri, ‘Lebanon’s Refugee Crisis, Part II: The Consequences of Lebanon’s Refugee policies’, (Immigration and Human Rights Law Review, 30 April 2020), <https://lawblogs.uc.edu/ihrlr/2020/04/30/lebanons-refugee-crisis-part-ii-the-consequences-of-lebanonsrefugee-policies/> accessed 6 December 2022.
57 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 4.
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policies and government-funded programs is resource-intensive and requires thorough cooperation, these bring forth long-term solutions for nation-wide sustainable development, which ensure growth and a higher quality of life for refugees and local communities.
V. Impact on Jordan and its ability to achieve SDGs
Jordan hosts around 670,000 Syrian refugees58 registered with the UNHCR, though reports estimate up to 1.3 million refugees, making Jordan the second largest host behind Lebanon. Around 10% of Jordan’s population is made up of Syrian refugees, significantly impacting access to resources, necessities, and education. Additionally, social aspects such as gender equality, employment and sustainability are also affected. Jordan is also hosting the world’s largest Syrian refugee camp, the Zaatari camp which is home to 80,00059 refugees today. Although this section will have a key focus on the Zaatari refugee camp, refugees in and out of camps impact Jordan’s ability to achieve the 2030 Agenda for Sustainable Development.
A. SDG 1 – No Poverty
Around 64% of Syrian refugee families live on less than JOD 3 per day or around USD 4.60 The lack of means requires families to often employ at least one negative coping strategy, such as limiting food intake or foregoing medical care to reduce costs.61 This creates a barrier to the achievement of SDG 1 but also indirectly impacts SDG 2 (Zero hunger), SDG 3 (Health), and SDG 4 (Education). Despite 62,000work permits having been issued to Syrian refugees in 2021,62 many refugees must still illegally work to sustain themselves and their families, leading to below-average wages and widespread exploitation amongst refugees. As Syrian refugees are often willing to work for lower wages than Jordanians, 63 many Jordanians have also moved below the poverty line as they struggle to find work amongst the ever-
58 ‘Jordan issues record number of work permits to Syrian refugees’ (UNHCR, 25 January 2022)
<www.unhcr.org/news/press/2022/1/61effaa54/jordan-issues-record-number-work-permits-syrianrefugees.html> accessed 28 October 2022.
59 ‘Jordan: Zaatari Refugee Camp’ (UNHCR, 3 August 2021) <www.unhcr.org/jo/wpcontent/uploads/sites/60/2022/02/1-Zaatari-Fact-Sheet-January-2022-final.pdf> accessed 1November 2022.
60 ‘64 percent of refugees in Jordan survive on less than 3 dinars a day’ (UNHCR, 30 March 2022)
<www.unhcr.org/jo/18841-64-percent-of-refugees-in-jordan-survive-on-less-than-3-dinar-aday.html#:~:text=For%20the%20first%20time,percent%20in%20refugee%20camps> accessed 1 November 2022.
61 ibid.
62 ‘TheSustainableDevelopmentGoalsReport2022Goal8’(UNSTATS, 2022)<https://sdgs.un.org/goals/goal8> accessed 28 October 2022.
63 ‘Informally employed Syrian refugees, working under harsh conditions, further strain Jordanian labour market’ (International Labour Organization, 18 May 2015) <www.ilo.org/beirut/mediacentre/news/WCMS_369592/lang en/index.htm> accessed 6 December 2022.
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increasing number of Syrian refugees seeking asylum in Jordan. This presents another impact onachievingSDG1 andreducingoverallpovertyrates.Despitethis,highernumbersofSyrian refugees are in formal employment than in Lebanon due to government cooperation.64 This allowsSyrianrefugees in Jordan better access to necessities. High formal employment levels allow for fair treatment and payment of refugees, which allows refugee families to prosper by providing education for their children, housing, healthcare, and food. This directly evidences that government planning and involvement of vulnerable populations such as refugees can significantly increase the likelihood of achieving the SDGs.
B. SDG 2 – Zero Hunger
SDG 2 outlines its primary goal as to “end hunger, achieve food security and improved nutrition, and promote sustained agriculture”.65 Approximately 90% of Syrian refugees in Jordan are either “hungry or teetering on the edge of food insecurity”.66 Nutrition is key to children’s physical and mental development and the key to an overall healthy population. Food insecurity amongst Syrian refugees impacts development, health, and education. Education rates are impacted because families will often take their children out of school to beg or to work to bring additional income to the household and be able to afford food.67 This could potentially decrease overall economic development as the future economically active population will lack the necessary skills for high level jobs.
A solution to this is the World Food Program (hereinafter ‘WFP’) starting the ‘Healthy Kitchens Initiative’,68 where women are employed to cook school meals for 4000 school children in the Zaatari camp.69 This allows healthy development of children (SDG 3 – Good Health and Wellbeing), and higher education rates (SDG 4 – Education), as children who do not go hungry during school hours have higher success rates. The project also increases enrolment rates in schools for refugees, as it ensures that students get one healthy meal per
64 ‘Jordan issues record number of work permits to Syrian refugees’ (UNHCR, 25 January 2022)
<www.unhcr.org/news/press/2022/1/61effaa54/jordan-issues-record-number-work-permits-syrianrefugees.html> accessed 6 December 2022.
65 ‘The Sustainable Development Goals Report 2022 Goal 2’ (UNSTATS, 2022) <https://sdgs.un.org/goals/goal2> accessed 7 November 2022.
66 ‘10 Facts About the Syrian Refugee Crisis in Jordan’ (United Nations World Food Program USA, December 14 2021) <www.wfpusa.org/articles/10-facts-about-the-syrian-refugee-crisis-in-jordan/> accessed 7 November 2022.
67 ‘Impact Review III WFP Healthy Kitchens Initiative – Syria Regional Response’ (World Food Programme, March 2016) <https://documents.wfp.org/stellent/groups/public/documents/ep/wfp282811.pdf> accessed 3 December 2022.
68 ibid 69 ibid.
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day. The initiative sources its ingredients from local sources, reducing carbon footprints and stimulating the local economy (SDG 8 – Economic Growth) by supporting local farmers and producers.70 Additionally, the WFP only employs women in the kitchens, thereby increasing gender equality (SDG 5), by providing jobs to women, who are statistically underemployed (15% of women) compared to men (60% of men) in Jordan.71 The initiative also provides householdswith an additional source of income, reducing overall poverty rates. Thus, despite having a high hunger rate, initiatives such as Healthy Kitchens contribute to the achievement of the SDGs, having both positive direct and indirect impacts on the achievement of the goals.
C. SDG 5 – Gender Equality
Women comprise an overwhelming number of refugees globally, including in Jordan, where one in three households in the Zaatari refugee camp are female-led.72 SDG 5 has the mission statement to “achieve gender equality and empower all women and girls”.73 This is done in two distinct ways: ensuring education for girls and guaranteeing employment opportunities for women. Education and employment allow women to be self-sufficient and reduce child marriage rates. Initiatives from NGOs such as the aforementioned ‘Healthy Kitchens Initiatives’74 and the solar plant have seen positive changes in gender equality.
Healthy Kitchens exclusively employs refugee women, allowing them access to the job market, togainworkexperience, andprovidingthem withadditional incomefor theirfamilies. This increased income can be spent on their children’s education. Overall, the initiative allows for refugee families to decrease dependence on humanitarian aid, allowing for seamless integration into Jordanian society. The solar plant75 links to gender equality as streets are now lit at night, increasing safety, and reducing the risk of gender-based violence. Gender-based violencemakestherealization ofgender equality moredifficult.Keeping thestreets litatnight
70 ibid.
71 ‘Women’s labor force participation and Covid-19 in Jordan’ (Middle East Institute, 1 February 2022) <www.mei.edu/publications/womens-labor-force-participation-and-covid-19jordan#:~:text=According%20to%20the%20International%20Labor,of%20men%20is%20about%2060%25.> accessed 6 December 2022.
72 ‘Jordan – Zaatari Refugee Camp’ (UNHCR, January 2020)
<https://reporting.unhcr.org/sites/default/files/UNHCR%20Jordan%20Zaatari%20Refugee%20Camp%20Fact% 20Sheet%20-%20January%202020.pdf > accessed 7 November 2022.
73 ‘TheSustainableDevelopmentGoalsReport2022 Goal5’ (UNSTATS, 2022)<https://sdgs.un.org/goals/goal5> accessed 7 November 2022.
74 ‘The Sustainable Development Goals Report 2022 Goal 2’ (UNSTATS, 2022) <https://sdgs.un.org/goals/goal2> accessed 7 November 2022.
75 Marwa Hashem, ‘Jordan’s Zaatari camp goes green with new solar plant’ (UNHCR, 14 November 2017) <www.unhcr.org/news/latest/2017/11/5a0ab9854/jordans-zaatari-camp-green-new-solar-plant.html> accessed 2 December 2022.
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decreases gender-based attacks, thus allowing for the progression of gender equality. Additionally, women and girls can further pursue educational goals, as they can continue working after sunset with longer hours of electricity, creating more educational and employment opportunities for women.76
Despite hosting the second-highest number of Syrian refugees worldwide, Jordan has still seen progress toward sustainable development. This is mainly due to NGO participation and the cooperation of the Jordanian government. Government involvement has helped with the establishment of official refugee camps77 and the administration of work permits to refugees, which has increased economic activity in the Zaatari campandthroughout thecountry.78 NGO initiatives such as “Healthy Kitchen Initiatives” and the solar plant funded by the UNHCR have significantly improved the standard of life for refugees in Jordan. This includes decreased poverty rates, increasedsocial services such as education and healthcare, and higher economic activity. The initiatives also link to several SDGs, promoting sustainable development and positively impacting Jordan’s ability to achieve the Sustainable Development Goals. Despite this significant achievement, 90% of refugee families live in poverty. Hence, more must be done to reduce this number. International humanitarian aid and government programs must be mobilised to reduce poverty rates amongst Syrian refugees in Jordan and continue to develop a higher quality of life for futuregenerations.
VI. Possibilities and limits to change A. Lebanon
Everyone is entitled to “seek and enjoy other countries’ asylum”79 under article 14 of the UDHR. However, to enforce the rights of refugees, states should ratify the 1951 Convention relating to the Status of Refugees (hereinafter ‘Refugee Convention’), a treaty protecting refugee rights and state obligations towards refugees. Neither Lebanon nor Jordan have signed this convention, limiting their duties towards refugees, and creating a barrier to the enforceability of this human right. The Lebanese government stressed that it would not
76 ibid.
77 ‘Jordan response plan’ (UNHCR, 2013) <www.unhcr.org/51b0a6469.pdf> accessed 6 December 2022
78 ‘Jordan issues record number of work permits to Syrian refugees’ (UNHCR, 25 January 2022) <www.unhcr.org/news/press/2022/1/61effaa54/jordan-issues-record-number-work-permits-syrianrefugees.html> accessed 6 December 2022.
79 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 4.
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support refugees,80 which can be seen in the lack of formal refugee camps in the country81 and the reluctance of the government to provide residency and work permits.82 It is estimated that 86% of Syrian refugees living in Lebanon still do not have residency permits,83 which creates abarrier toeducationfortheirchildren andto accessingformal employment,resulting inmany refugees working in exploitative industries.84 In 2015, the Lebanese government mandated the UNHCR to cease the registration of Syrian refugees,85 causing Syrian refugees to struggle to access necessities such as food, healthcare, shelter, and education. However, whether registered or not, Syrian refugees still exist and will continue to exist as part of Lebanon’s population. Thus, the Lebanese government must include Syrian refugees in its Sustainable Development plan for 2030. To omit refugees from this plan would create a direct limit imposed on Lebanon’s ability to achieve the SDGs, as it keeps the poorest of its population below the poverty line and directly impacts accessibility to human rights for refugees.
In July 2022, Lebanon’s government announced its new plan to deport 15,000 Syrian refugees a month back to Syria, mainly against the refugees’ wishes.86 Though Lebanese authorities have stated that it is safe for Syrian refugees to return home,87 the UN has refused to participate in the repatriation of Syrian refugees, as it maintains that conditions are still unstable for civilians.88 This presents both a limitation and an opportunity for Lebanon’s achievement of the SDGs. The main limitation of involuntary repatriation is that it presents a barrier to accessing and enforcing human rights.Seekingasylumisafundamentalhumanright outlined by the UDHR,which the new government initiative will infringe upon. Additionally, by returning to Syria, refugees will lack access to other fundamental human rights, including education, healthcare, shelter, and the right to a fair trial due to the ongoing civil war, which hasshutdownmostofSyria’sinfrastructureandsocialservices.Though poverty rates are high
80 ‘Lebanon - Shelter’ (UNHCR, 2022) <www.unhcr.org/lb/shelter> accessed 6 December 2022.
81 ibid.
82 Martin Armstrong, ‘Lebanon resists granting work permits to Syrian Refugees’ (Middle East Eye, 4 February 2016) <www.middleeasteye.net/news/lebanon-resists-granting-work-permits-syrian-refugees> accessed 6 December 2022.
83 ‘Lebanon’s EconomicTurmoil:Syrians faceUniqueVulnerabilities’(Syria Justice and Accountability Centre, 5 August 2021) <https://syriaaccountability.org/lebanons-economic-turmoil-syrians-face-uniquevulnerabilities/>
accessed 3 November 2022.
84 ibid.
85 ibid.
86 Timour Azhari, ‘Lebanon to resume sending refugees back to war-damaged Syria’ (Reuters, 12 October 2022) <www.reuters.com/world/middle-east/lebanon-begin-returning-syrian-refugees-syria-next-weekpresidency-2022-10-12/> accessed 7 November 2022.
87 ibid.
88 ibid.
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for refugees living in Lebanon, refugees still have higher access to employment, education, and healthcare provided by NGOs and UN agencies such as the UNHCR whilst living in Lebanon than living in Syria. Refugees also provide economic opportunities for countries, as they add to a skilled workforce and contribute to the economy, which helps countries achieve the SDG targets and rebuild their economies, as would be the case for Lebanon. The forceful removal of refugees could therefore limit economic opportunities for Lebanon. The other side of the argument, and Lebanon’s main reason for the repatriation of refugees, is that fewer refugees will decrease pressure on Lebanon’s infrastructure, natural resources, and social services. Theoretically, reduced pressures and a smaller population to provide for, could allow the Lebanese government to focus on its native population’s social and economic struggles and better focus on its achievement of the SDGs. However, reports show a lack of added negative impacts on Lebanon’s economy from Syrian refugees settling, putting the purpose and efficacy of the repatriation initiative into question. This makes the initiative a limitation on achieving the SDGs and creates a significant barrier to enforcing human rights for Syrian refugees forced back to Syria.
B. Jordan
Despite not having signed the 1951 Refugee Convention, Jordan has integrated refugees into its society and economy at a much greater rate and is reaping the success of this. The Zaatari camp is the best example of this. Entrepreneurship from refugees has been witnessed in the camp since its beginning. Over 1,800 businesses have been set up in the Zaatari camp,89 employing an estimated 3,600 refugees,90 creating additional economic activity within Jordan’s economy. Moreover, business owners regularly connect with the companies and clients in the nearby city of Mafraq,91 further contributing to Jordan’s economy.Bybecoming entrepreneurs, refugees enjoy the additional income, which allows families to afford food, healthcare, and education for their children, positively impacting SDGachievements in Jordan and increasing accessibility to human rights. To cater to the refugees’ needs, the camp also hosts 52 schools, 58 community centres, and eight healthcare facilities, creating more possibilities for achieving SDGs 1, 3, and 4, even with a large refugee community. The most significant achievement in terms of sustainability for the camp was the new solar plant,
89 ‘Durable solutions required for Syrian refugees in Jordan as Za’atari camp turns 10’ (UNHCR, 29 July 2022) <www.unhcr.org/news/briefing/2022/7/62e39a464/durable-solutions-required-syrian-refugees-jordanzaatari-camp-turns-10> accessed 3 November 2022.
90 ibid.
91 ibid.
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providing clean solar energy to the 80,000 refugees living in the Zaatari camp. The plant reduces carbon dioxide emissions by 13,000 metric tonnes or 30,000 barrels of oil.92 Additionally, the use of solar energy in the camp provides families with 12 to 14 hours of electricity per day,93 a significant increase from the previously rationed 6 to 8 hours a day.94 This directly contributes towards SDG 7 (affordable and clean energy) and indirectly contributes to several others. The additional hours of light after sundown allow refugees in full-time education to study longer (SDG4), resulting in better qualifications and employment opportunities (SDG 8) and a reduction in poverty rates. This allows Jordan to pursue significant achievements towards the SDGs, has removed significant barriers to the enforcement of and access to fundamental human rights.
VII. Conclusion
The Syrian refugee crisis is a complex humanitarian challenge that requires the cooperation of governments, humanitarian aid organisations, and the general international community. This article only briefly examined the impact of the crisis on two countries regarding sustainable development; however, many issues are still present elsewhere on the planet that will impact the overall achievement rate of the SDGs. Despite this case study’s particular focus on Lebanon and Jordan, the Syrian refugee crisis is a global problem, making this an international human rightsissue.
Regarding this case study, it is evident that the Syrian refugee crisis negatively impacted Jordan and Lebanon. However, with the help of government cooperation, refugees in Jordan have been found to have a higher quality of life overall. Issuing work permits has positively affected economic development and allowed the further development of the economically active population of Jordan, leading to a potential future reduction in poverty rates. Additionally, work permits authorising refugees to legally work in formal employment settings, giving refugees fair wages, and limiting risks of exploitation, which links to development in SDGs 8 and 10. With the additional humanitarian aid provided to refugees, several initiatives have been developed linking to various SDGs, aiding overall Sustainable Development.
92 Marwa Hashem, ‘Jordan’s Za’atari camp does green with new solar plant’ (UNHCR, 14 November 2017) <www.unhcr.org/news/latest/2017/11/5a0ab9854/jordans-zaatari-camp-green-new-solar-plant.html> accessed
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3 November 2022. 93 ibid. 94 ibid.
Contrarily, Lebanon has seen few initiatives, which have not positively impacted SDG achievements. Hence, this evaluation has shown the importance of government involvement in the crisis. Government cooperation and international humanitarian aid significantly improve refugee and local residents’ quality of life. This will overall link to more effective removal of barriers to access and enforcement of human rights, specifically for vulnerable populations.
By Tikhon Filonov
LL.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.
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–
From Roe to Dobbs: Has the Supreme Court Finally Settled the Abortion Debate?
Repercussions
Abstract
The paper presents an analysis of the consequences of the Dobbs v. Jackson Women’s Health Organization (2022) decision (“Dobbs case”). The right to abortion is examined in light of this recent Supreme Court decision. This paper provides a brief history of laws on abortion in the United States (“US”), showing that the right to abortion in the US has been gradually restricted until the middle of the 20th century when the right to abortion received constitutional protection. The major findings of the paper are that with its decision in the Dobbs case, the Supreme Court has practically limited the reproductive rights of women in the US by extending state rights, therefore, reigniting the abortion debate. The state laws and regulations that followed the Supreme Court’s decision disproportionally affect the reproductive rights of People of Colour in the US. A number of new abortion issues will remain to be solved by the Court in the future, and many more issues will arise.
I. Introduction
On 24 June 2022, the Supreme Court of the United States overturned Roe v. Wade, a landmark Supreme Court decision asserting a constitutional right to abortion. A decision, adopted with 6-3 majority, returned the right to regulate abortion to the states. The paper will commence by providing a brief historical overview of laws on abortion in the United States. The article will later examine the importance of the Roe v. Wade (1973) decision along with
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the implications of other laws adopted between 1973 and 2022, and the Dobbs v. Jackson Women’s Health Organization (2022) decision. The paper will then consider whether the Supreme Court of the United States has actually settled the long-standing abortion debate. Lastly, the article will analyse the repercussions that the overturn of Roe v. Wade has on different racial and ethnic minority groups from a social, legal and political perspective, as well as the effects of this decision on state-federal relations in the US.
II. Historical context
This section provides an overview of the abortion law history in the US by analysing the most influential decisions, as well as federal and state laws. The history of abortion law in the US is complex. Abortion rights have changed significantly since the colonial period and the establishment of the US as a unified country until the middle of the 20th century. This section of the paper will provide a brief history of abortion laws from the foundation of the US until the Roe v. Wade landmark decision.
A. Colonial period and early 19th century
The history of laws regulating abortion on the current territory of the US can be traced back to colonial America and the British colonial government.1 In British colonies, including what is now known as the US, abortion was legal if performed before the moment of ‘quickening’.2
Quickening is the moment when a woman can feel the foetus’ movements. Quickening is a subjective term which was usually determined by the pregnant woman herself and approximately correlates to a moment between the fourth and sixth month of pregnancy.3 Women in colonial times often performed pre-quickening abortions with the help of other community members.4 Most abortions in the 19th century were induced by herbs, while surgical abortions were more dangerous due to the underdevelopment of medicine at that time.5 The situation of enslaved women in the 18th and 19th century was noticeably different from that of
1 Acevedo Zoila, ‘Abortion in early America’ (1979) 4 Women Health 159, 161
2 R. N. Shain, ‘A cross-cultural history of abortion’ (1986) 13 Clin Obstet Gynaecol 1.
3 Elizabeth Georgian, ‘The end of Roe in Historical Perspective’ (Clio and the Contemporary, 1 July 2022) <https://clioandthecontemporary.com/2022/07/01/the-end-of-roe-in-historical-perspective/> accessed 30 October 2022.
4 Zoila (n 1) 162.
5 John Tennent, Every man his own doctor: or, The poor planter's physician: Prescribing plain and easy means for persons to cure themselves of all, or most of the distempers, incident to this climate, and with very little charge, the medicines being chiefly of the growth and production of this country (4th edn, 1736).
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other women living in the US.6 Abortion was regulated more tightly because the children of enslaved women were also enslaved.7 Slave owners commonly refused to allow enslaved women to perform abortions and monitored them to not allow self-induced miscarriages, also due to economic reasons.8 These practices remained in place until the abolition of slavery in 1861.9 To conclude, abortions were not illegal in most states in colonial America until approximately mid-18th century.
B. 1800-s abortion regulations
The existing abortion framework gradually began to change in 1821 with the introduction of state laws restricting abortion. The first statutory law banning abortion after quickening was adopted in Connecticut in 1821.10 The law introduced criminal liability for persons administering or helping to administer substances with the intention to provoke miscarriage. It also introduced liability for abortion after quickening. The early and mid-18th century abortion regulations were fixated on unregulated medicines provoking abortions, and on abortions performed after quickening. These regulations concerning abortifacients, which most of the time were available without prescriptions, were intended as a way of limiting the established practice of self-induced abortions common within the communities. In the following decades, several other states, including New York, introduced similar rules restricting abortion.
C. Comstock laws
The 1873 Comstock Act restricted the selling and sending of obscene information, including information about abortion and contraception.11 Comstock laws is a collective name for federal and state laws passed to impose restrictions under the Comstock Act. The act provided for criminal liability, including imprisonment for a period varying from six months to five years,
6 Liese M Perrin, ‘Resisting Reproduction: Reconsidering Slave Contraception in the Old South’ (2001) 35 Journal of American Studies 255, 256-262.
7 Emily West, Sian David, ‘Reproduction and Resistance - Hidden Voices: Enslaved Women in the Lowcountry and U.S. South’ (LDHI) <https://ldhi.library.cofc.edu/exhibits/show/hidden-voices/resistingenslavement/reproduction-and-resistance/> accessed 30 October 2022.
8 Perrin (n 6)256-260.
9 Zoila (n 1) 167.
10 The Public Statute Laws of the State of Connecticut: As Revised and Enacted by the General Assembly, in May 1821 (Palala Press 2016) <https://memory.loc.gov/ammem/amlaw/lawhome.html> accessed 30 October 2022.
11 Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use (Comstock Act) Mar. 3, 1873, ch. 258, 17 Stat. 598.
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or a fine of a considerable amount.12 The Comstock Act was adopted as a response to US women carrying out illegal abortions either by themselves by taking medication forcing abortion or by using the services of illegal clinics. After the adoption of the Comstock Act, physicians were obliged to justify the distribution of contraception medication as averting or curing diseases. Otherwise, such information and materials were not allowed to be distributed. The birth control provisions of the Comstock Act were subsequently partially overturned in United States v. One Package in 1936.13 The decision allowed doctors to mail birth control devices and information about these devices throughout the country and essentially legalized birth control in the US for the first time in history.14 The Act was fully dismantled by the landmark decision in Griswold v. Connecticut (1965) granting the right to access birth control.15 The latter decision would later contribute to Roe v. Wade by bringing the issue of privacy into the realm of reproductive health.16
D. Abortion policy prior to Roe v. Wade
Thus, despite the legal restrictions, abortion has continued its problematic way into the 20th century. During the 1960s, cases concerning women’s reproductive rights began to appear in state and federal courts more commonly. By 1967, most states had banned all types of abortion.17 In the following few years, some states began to relax abortion laws. Between 1967 and 1973, fourteen states changed their legislation to allow abortion in cases of necessity to save a woman’s life, health, or in cases of rape or incest. Abortion became legal in New York, Washington D.C., Alaska, Washington, and Hawaii at physician’s discretion between 1970 and 1973.18 During that time, women residing in states which restricted abortion began moving to one of the abortion-friendly states to have an abortion.19
III. Roe v. Wade (1973)
12 ibid.
13 ibid.
14 Donald T. Critchlow, The Politics of Abortion and Birth Control in Historical Perspective, (University Park: Pennsylvania State University Press, 2010); Carol R. McCan, Birth Control Politics in the United States, 19161945, (Cornell University Press, 1994).
15 Griswold v. Connecticut 381 U.S. 479 (1965)
16 ibid.
17 Karen J Lewis,Jon O Shimabukuro, ‘Abortion Law Development: A Brief Overview’ (Congressional Research Service 2007).
18 Carrie N Baker, ‘The History of Abortion Law in the United States’ (Our Bodies Ourselves Today at Suffolk University, revised August 2022) <ourbodiesourselves.org/health-info/u-s-abortion-history/> accessed 30 October 2022.
19 ibid.
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On 22 January 1973, the Supreme Court produced a milestone decision in Roe v. Wade. 20 This decision practically struck down all state laws criminalizing abortion. This section observes what the Court concluded in Roe v. Wade, the Court’s reasoning, and how subsequent opinions of the Court affected the abortion rights legal framework arising from this decision.
The decision accepted the right of an individual to seek abortion as a constitutional right arising from the 14th amendment’s idea of personal liberty. The 14th amendment reads: ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’.21 The decision did not rule that regulation of abortion should be exercised by the federal government, but rather that unreasonably restrictive regulation of abortion by states is unconstitutional. One of the conclusions of the Court was that the due process clause of the 14th amendment protects the right to privacy of a pregnant woman against state interests. A woman’s right to have or not to have an abortion falls within that right to privacy under the US Constitution. A state law prohibiting the right to abortion without respect to the phase of pregnancy and other interests of a woman was decided to violate that right. The Court held that even though the state has legitimate interests to protect the health of pregnant women and the potential human being, the relative weight of each of these interests varies throughout the phases of pregnancy.22 Therefore, the law has to take into account this variability. The threetrimester classification was introduced. In the first trimester of pregnancy, the decision was left to a woman and her physician, and therefore the state could not regulate an abortion decision. In the second trimester, the state could impose rules and regulations where necessary to protect the health of a woman. In the third trimester, abortion could be severely restricted or even prohibited entirely, with the exception of saving a woman’s health or life.
When the decision in Roe v. Wade was adopted, the Court had already used a ‘right to privacy’ basis in Griswold v. Connecticut to grant married couples and singles a right to use contraceptives.23 As part of its reasoning, the Court needed to address two main issues in order to protect the right to abortion using a similar interpretation. The issues were whether the laws banning abortion were meant to protect the unborn and whether the unborn is a person for the purposes of the 14th Amendment. According to Justice Blackmun, the purpose of laws
20 Roe v. Wade 410 U.S. 113 (1973).
21 U.S. Const. amend. XIV, § 2.
22 Roe v. Wade 410 U.S. 113 (1973).
23 Griswold v. Connecticut 381 U.S. 479 (1965).
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prohibiting abortion, most of which were passed in the 19th century, was not to protect the life of a foetus, but rather to protect the woman from a life-threatening procedure.24 The Justice provided an extensive historical outline of English and American common law to demonstrate that point, particularly focusing on recent developments of abortion law.25 Justice Blackmun concluded that there was no longer a need for the prohibition of abortion as the procedure connected to it had become relatively safe. Justice Blackmun presented three reasons as to why the unborn are not persons falling under the 14th Amendment. First, he argued that the US Constitution “does not define ‘person’ in so many words”, and only provides an exhaustive list which does not explicitly include the unborn.26 Then he stated that there were no cases where a Texas court held that an unborn was considered a person under the 14th Amendment. Lastly, throughout the 19th century, abortion practices were performed more freely than at the time of the adoption of Roe v. Wade, which persuaded the Court that the ‘person’ under the 14th Amendment did not include the unborn.27 Although the reasoning of the Court has been questioned by many scholars since the adoption of Roe v. Wade, the Court at that time was persuaded that the aforementioned two issues were sufficiently addressed.28 The Court therefore established the right to abortion under the right to privacy.
In Doe v. Bolton (1973), decided on the same date as Roe v. Wade, the Supreme Court confirmed its ruling made in the latter case by striking down laws that severely limited the list of circumstances under which abortion could be performed.29 Specifically, requirements concerning admission to a hospital, hospital accreditation, hospital abortion committee approval, and residency requirements were ruled to be unconstitutional.30
During the period between 1973 and 1993, limitations on the right to abortion were adopted in most states. In 1976, Congress passed the Hyde Amendment.31 Prior to the adoption of the Hyde Amendment, the Medicaid healthcare programme included abortion procedures as part of healthcare services provided to women with low income. The Hyde Amendment prohibited the use of federal funds to finance abortions, including abortions provided as part of the
24 Roe v. Wade 410 U.S. 113, 149 (1973).
25 ibid 130-150.
26 ibid 157.
27 ibid 158.
28 Francis J Beckwith, ‘The Supreme Court, Roe v. Wade, and Abortion Law’ (2006) 1 Liberty University Law Review 37, 45.
29 Doe v. Bolton 410 U.S. 179 (1973).
30 David Schultz and John R Vile, The Encyclopaedia of Civil Liberties in America (1st edn, Routledge 2015) 283.
31 Baker (n 18).
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Medicaid program, with the exception of cases of rape, incest, threat to a woman’s life, or other limited circumstances.32 This amendment has disproportionally impacted Women of Colour as they constituted the main group which at that time benefited from the Medicaid program.33 In 1992, the Supreme Court affirmed Roe v. Wade’s core holding and imposed a new classification to determine the legality of state laws that are aimed at restricting the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. The new standard rejected the trimester-based classification introduced in Roe v. Wade and was based on the ‘undue burden’ concept. A state law would be invalid if it had the purpose or effect of imposing a ‘substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability’.Within the meaningofundueburden,viabilityisapoint atwhichafoetuscan survive outside the womb and roughly correlates to a moment between 24 and 28 weeks. In the aftermath of the Roe v. Wade decision, states have adopted approximately 1300 laws restricting abortion in various states.34 These laws concerned mandatory waiting periods, counselling, and ultrasound requirements, as well as the prohibition of certain abortion methods, restrictions on abortion medication and other limitations. There have been other notable cases that affected the right to abortion in different states between 1973 and 2022.35 Overall, the Roe v. Wade decision has granted women a constitutional right to abortion. Still, this right was gradually limited from 1973 until 2022, at which point an individual’s constitutional right to abortion was completely revoked.
IV. Dobbs v. Jackson Women’s Health Organization (2022)
On 24 June 2022, the Supreme Court overturned the Roe v. Wade and Casey judgements and held that abortion is not guaranteed under the US Constitution.36 The reason given by the majority of Justices was that the federal government does not have the right to decide on this question, and it should therefore be delegated to states. In its reasoning, the Supreme Court refers to the aforementioned Planned Parenthood v. Danforth and Roe v. Wade judgements,
32 Marjorie R Sable, ‘The Hyde Amendment: Its Impact on Low Income Women with Unwanted Pregnancies,’ (1982) 9 The Journal of Sociology & Social Welfare 475, 477
33 National Abortion Federation, ‘Public Funding For Abortion: Medicaid And The Hyde Amendment’ (2006); The Henry J. Kaiser Foundation, ‘Medicaid’s Role for Women, Issue Briefs: An Update on Women’s Health Policy’ (November 2004).
34 Baker (n 18).
35 Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Harris v. McRae, 448 U.S. 297 (1980); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Rust v. Sullivan, 500 U.S. 173 (1991); Stenberg v. Carhart, 530 U.S. 914 (2000).
36 I Glenn Cohen, Melissa Murray, Lawrence O Gostin, ‘The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion’ [2022] JAMA 325.
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arguing that no specific position was held by the Court. The majority had produced three main objections. Firstly, the Court held that the Constitution does not make references to abortion, and no such right is implicitly protected by constitutional provisions, including the Due Process clause of the 14th Amendment.37 Secondly, the Court also reasoned that any right implicitly guaranteed by this clause must be “deeply rooted in this Nation’s history and tradition” and be “implicit of the concept of liberty”.38 On that matter, the majority observed that until the second half of the 20th century, abortion was illegal in most states. Furthermore, the majority noted that at the time of the adoption of the 14th Amendment, three-quarters of the states considered abortion as a crime regardless of the stage of pregnancy.39 Moreover, abortion was considered a crime under common law until the statutory restrictions of the 18th century expanded criminal responsibility for abortions. Thirdly, the majority argued that the “permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting”. The right of abortion, in the Supreme Court’s view, cannot be considered to fall into the category of rights implicitly guaranteed by the Constitution. The decision also noted that, overall, “[Roe v. Wade’s] reasoning was exceptionally weak”.
In a written dissent, Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan delivered their joint opinion on the judgement.40 The dissenting opinion recognized that the decision to overturn Roe v. Wade and Casey allows states to freely enact all kinds of restrictions and undermines women’s rights and autonomy.41 The dissent noted that practically nothing in the majority’s opinion would prevent states from imposing restrictions, therefore prohibiting abortion from the moment of fertilization and without any exception for rape, incest, or risk of serious injury.42 The Justices mentioned that some states enacted trigger laws in anticipation of the decision, which would become effective immediately after the overturn, indicating the severity of the consequences that would result from the decision. The dissenting Justices also observed that the majority had ignored the stare decisis principle in this decision.43 In their view, no changes have been made in law or in fact in regard to Roe v. Wade, except for the composition of the court. The overruling of Roe v. Wade broke a long period of reluctance to
37 Dobbs v. Jackson Women's Health Organization, 597 U.S. 5 (2022).
38 ibid 4.
39 ibid.
40 Dobbs v. Jackson Women's Health Organization, 597 U.S. 1 (2022) (Breyer, Sotomayor, and Kagan, JJ., dissenting opinion).
41 ibid 2.
42 ibid 4-5.
43 ibid 6.
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change the Roe v. Wade decision, regardless of the views on the decision itself. In fact, each abortion case standing before the Court has provided it with the option to either overrule or uphold Roe v. Wade. 44 Finally, the dissenting Justices specified that one result of the Dobbs decision is undeniable – the restriction of women’s rights and their status as free and equal citizens.45 Notably, the traditional ‘respectfully’ modifier, commonly written at the end of dissenting opinions by the Supreme Court, was omitted.
V. Repercussions
Several states banned abortions following the overturn of Roe v. Wade. As of 13 October 2022, abortion has been banned in twelve states, with most states not providing exceptions for rape or incest.46 Several other states have a gestational limit varying from 6 to 20 weeks. These restrictions have been adopted either through trigger laws or after some time following the Dobbs decision.47 One of the most recent laws was passed in West Virginia on 13 September 2022, banning abortion in all cases with the exception of rape and incest. Eight states have blocked the ban on abortion, but there are lawsuits against such blocks in most of these jurisdictions. Abortion remains legal, or legal but limited, in twenty-two states. While no state has adopted a ban on travels to other states for the purposes of obtaining an abortion since 24 June 2022, one state has made a proposal for such ban. This confirms the concern expressed in the dissenting opinion, where the Justices emphasized the right to travel as one of the issues courts might encounter in the future.
With theoverturnof Roe v. Wade,everystatehasbeengranted aright topass lawslegalizing abortion that are compatible with its state constitution. In general terms, not much would changeforCalifornia,NewYork,andMassachusetts, wherethestatelegislaturesare increasing protections for providers of abortions.48 In addition, these states might adopt legislation that would support residents of states where abortion is banned to travel to another state to seek abortion.49 In contrast, the situation would drastically change for conservative states. So far, a
44 ibid 6.
45 ibid 4.
46 ‘After Roe Fell: Abortion Laws by State’ (Center for Reproductive Rights, 25 July 2022) <https://reproductiverights.org/maps/abortion-laws-by-state/> accessed 3 December 2022.
47 ibid.
48 Martha F Davis, ‘The state of abortion rights in the US’ 2022 159(1) International Journal of Gynecology and Obstetrics 324, 326-328.
49 Sarah Grucza, ‘Supreme Court’s ruling overturning Roe v. Wade “will have huge political ramifications”’ (Harvard Kennedy School, 24 June 2022) <www.hks.harvard.edu/faculty-research/policytopics/politics/supreme-courts-ruling-overturning-roe-v-wade-will-have-huge> accessed 3 December 2022.
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number of states have indicated their aim to limit abortions not only in their own state, but outside their state too. This could potentially be implemented, for example, through the adoption of legislation criminalizing abortion in other states, although such action would raise several constitutional problems.50
One of the political consequences of the Dobbs decision concerns the importance of overturning the idea of the US as a republic. By setting aside Roe v. Wade, the Supreme Court held that states have not delegated the right to regulate an individual’s right to abortion through the 14th Amendment of the Constitution to the federal government.51 Popular sovereignty presumes that some rights have been delegated to states, while other rights have been delegated to the federal government though something that is expressed through the phrase ‘we, the people’ in the Constitution. By moving the right to regulate abortion from federal to state level, republican rights of states have been restored in that specific sphere of abortion regulation. The decision of the Supreme Court can be considered to create a less totalitarian government by moving the source of authority from the federal level, affecting hundreds of millions of people, to a state level, affecting tens of millions of people.52 From an American republicanism perspective, this authority is less repressive, and easier to protect oneself from.53
The Dobbs decision will also affect People of Colour in a disproportional manner. NonWhite people constitute the largest group in the US that uses abortion services.54 Currently, the White population accounts for approximately 1/3 of all abortions being performed in the US, while the Black population accounts for almost 40%.55 Around 21% of abortions are made by Hispanic people.56 The restrictions on abortions that will result from the overturn of the Roe v. Wade decision will therefore disproportionally affect Black, Hispanic, indigenous, and ethnic minority groups.57 This is due to the fact that these groups constitute a large percentage of population in states that have already restricted abortion or postponed the adoption of such laws, and people living in those states have more limited opportunities to travel to other states
50 C Steven Bradford, ‘What Happens If Roe Is Overruled? Extraterritorial Regulation of Abortion by the States (1993) 35 Arizona Law Review 88.
51 Dobbs v. Jackson Women's Health Organization, 597 U.S. 3 (2022).
52 Ludvig Beckman and Jonas H Rosenberg ‘Freedom as Non-domination and Democratic Inclusion’ (2018) 24 Res Publica 181.
53 ibid.
54 Goyal V, Brooks IHM, Powers DA, ‘Differences in abortion rates by race-ethnicity after implementation of a restrictive Texas law’ (2020) 102(2) Contraception 109.
55 UPMC Health Beat, ‘Black Maternal Mental Health: The Challenges Facing Black Mothers’ (23 July 2020).
56 ibid.
57 Karine Coen-Sanchez and others, ‘Repercussions of overturning Roe v. Wade for women across systems and beyond borders’ (2022) 19 Reproductive Health 184.
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to get an abortion.58 One of the important consequences of the Dobbs ruling is the closing or relocation of abortion clinics, a number of which have already closed in Southern and Midwest states. These clinics either relocate to more abortion-friendly states or close completely.59 An increasing number of people has started seeking abortion in states where such procedure has not been banned, which has already caused long waiting time in clinics that have not closed.60
The right to abortion is interconnected with a number of other internationally protected human rights, including the right to health, right to life, right to non-discrimination and equality, right to information, and right to bodily autonomy and integrity.61 These rights are recognized under a number of international treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). While the US is not legally bound by treaties such as the ICESCR and CRC, it has, as a signature party, an obligation to refrain from actions that would undermine the objectives of these treaties. All of these rights may be at risk if the right to abortion is made non-available or severely restricted, which has happened or is currently happening in some US states since the adoption of Dobbs.
VI. Conclusion
The 24 June 2022 decision has provided states with a right to severely limit the right to abortion,thus limitingwomen’sabilitiestoexercise theirreproductiverights.Withtheoverturn of Roe v. Wade, People of Colour will be disproportionally affected by abortion restrictions imposed by states, and structural barriers will limit the opportunities for out-of-state abortions for these people. The restriction of abortion in states will have a negative impact not only on those states banning abortion but also on the states to which women will travel for an abortion. Thus, the right of states to impose strict limitations on the right of abortion resulting from the overturn of Roe v. Wade marks a colossal step backwards for women’s reproductive rights in the US
58 ibid.
59 ‘Roe v Wade: Abortion clinics start to close after Supreme Court ruling’ (BBC, 25 June 2022) <www.bbc.com/news/world-us-canada-61933814> accessed 30 October 2022.
60 Kristen Schorsh, ‘Abortion is illegal in Illinois. In Wisconsin, it’s nearly banned. So clinics teamed up’ (NPR, 11 August 2022).
61 ‘Access to Abortion is a Human Right’ (Human Rights Watch, 24 June 2022) <www.hrw.org/news/2022/06/24/qa-access-abortion-human-right> accessed 28 November 2022.
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