Women and Justice: Keywords

International Case Law

C. v. Australia Human Rights Committee (ICCPR) (2018)

Divorce and dissolution of marriage, International law, LGBTIQ

C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland.  They agreed to have a baby and that C. would be the birth mother.  They traveled to Canada and got married and then separated shortly after the marriage.  C. is the sole caregiver of the baby and no longer knows of the whereabouts of A.  C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future.  She also wanted to ensure she was not held responsible for A.’s debts.  Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin.  In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage.  Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”  Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.”  C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce.  C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant.  The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce.  This was found to constitute differential treatment.  Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce.  The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages.  In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant.  Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings.  Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.



Sharma, et al. v. Nepal Human Rights Committee (ICCPR) (2018)

Gender-based violence in general, International law, Sexual violence and rape

The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge.  The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal.  Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks.  She was detained and held from October 2003 through 30 June 2005.  Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention.  He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her.  During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape.  After that, she suffered ill health and was taken to a hospital.  In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release.  As a result, Ms. Sharma was interrogated harshly and beaten.  Ms. Sharma was then moved to a small, dark room and kept in isolation.  Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release.  The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant.  In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant.  Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant.  The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant.  The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant.  The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant.  Moreover, the Committee stated that Nepal was obligated to provide an effective remedy.  This remedy should include:  (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered.  Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation:  (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.



Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius Human Rights Committee (1981)

Gender discrimination, International law

Twenty Mauritian women submitted a communication to the Committee stating that the Immigration (Amendment) Act of 1977 and the Deportation (Amendment Act) of 1977 constitute discrimination based on sex against Mauritian women, violation of the right to found a family and a home, and removal of the protection of the courts of law. Prior to the enactment of these laws, alien men and women married to Mauritian nationals could equally enjoy residence status by virtue of their marriage. Under the new laws, however, alien husbands of Mauritian women must apply for a “resident permit” subject to rejection by the Minister of the Interior at any time. The new laws do not similarly affect alien wives of Mauritian men. The complaint specifically alleged several violations of the Covenant on Civil and Political Rights including: article 2 obligations to recognize rights under the Covenant without distinction based on sex; article 3 obligations to ensure the equal enjoyment of civil and political rights regardless of sex; article 26’s guarantee that all persons are equal before the law and are entitled without discrimination to equal protection of the law; article 17’s protection against arbitrary or unlawful interference with privacy, family, and the home; and article 23’s obligations to protect an individual’s right to marry. Although the Committee found that seventeen of the complainants were unmarried and therefore unaffected by the legislation in question, the Committee concluded that the future possibility of deportation and the existing precarious resident situation of foreign husbands in Mauritius represented an interference by the State with the family life of the remaining victims. The Committee held that any discrimination on the ground of sex within Mauritian legislation without sufficient justification was tantamount to a violation of articles 2 and 3 in conjunction with article 17, as well as direct violations of article 26 and 23. The Committee recommended that Mauritius adjust the provisions of the Immigration (Amendment) Act and the Deportation (Amendment) Act in order to implement the State’s obligations under the Covenant to prevent sex discrimination in its laws and regulations.



Domestic Case Law

Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative.