May 16, 2012

IX. International Legal Obligations

Sexual Violence and Sexual Harassment as Human Rights Violations

Human rights law imposes an obligation on states to take measures to protect all persons against human rights violations—including sexual violence and sexual harassment perpetrated by private actors—and also to provide a remedy where fundamental protections, such as those relating to the right to life and bodily integrity, have been violated. 

The International Covenant on Civil and Political Rights (ICCPR), ratified by the US in 1992, declares, “Everyone has the right to liberty and security of person.”[381] This right has been interpreted to protect an individual’s security of person even when the threat arises from a private actor. The ICCPR also prohibits discrimination on “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[382] Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”) and article 7 of the ICCPR guarantee the right to be free from torture and cruel, inhuman, or degrading treatment.[383] International tribunals and other bodies have established that rape is covered by these prohibitions on torture.[384]

The United Nations Human Rights Committee (HRC) has made clear that states parties to the ICCPR and other conventions are in violation of their obligations not only when state actors are responsible for violation of treaty provisions, but also when the state fails to take necessary steps to prevent violations caused by private actors. The HRC’s General Comment 31 to the ICCPR notes that states parties must “take appropriate measures … or exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.[385]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obligates states party to combat discrimination against women.[386] Although the US has not yet ratified CEDAW, as a signatory, it is obliged to refrain from acts that would defeat the treaty’s object and purpose.[387] The Committee on the Elimination of Discrimination against Women, the treaty body that interprets and monitors compliance with CEDAW, has affirmed that violence against women is a form of discrimination against women and that states parties should have effective legal, preventive, and protective measures in place to provide justice for victims, hold offenders accountable, and protect society from future acts of sexual violence.[388] CEDAW requires states parties to take into account the particular problems faced by rural women, and the Committee has made specific recommendations for provision of legal aid, training for police and others working with victims of violence, and counseling services in rural areas.[389]

Article 11 of CEDAW specifically protects the “right to protection of health and to safety in working conditions.”[390] The Committee has issued two statements specifically on sexual harassment: Recommendation No. 12 identifies the prevention of sexual harassment as an obligation undertaken by state parties, and Recommendation No. 19 notes that sexual harassment seriously impairs equality in the workplace.[391]

The United States has similarly signed but not ratified the Convention on the Rights of the Child (CRC).[392] As a signatory to the CRC, the United States is obliged to refrain from acts that would defeat the treaty’s object and purpose.[393] The CRC sets out the minimum protections to which children—defined as persons under age 18—are entitled. Article 32 of the CRC provides specifically that children have a right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development,”[394] while article 34 requires that states parties “undertake to protect the child from all forms of sexual exploitation and sexual abuse.”[395]

The Inter-American Commission on Human Rights (IACHR) has also ruled that under the American Declaration of the Rights and Duties of Man, a state can be held responsible for acts perpetrated by private actors in certain circumstances. Specifically, the IACHR has recognized that “gender-based violence is one of the most extreme and pervasive forms of discrimination, severely impairing and nullifying the enforcement of women’s rights,” and that “a State’s failure to act with due diligence to protect women from violence constitutes a form of discrimination and denies women their right to equality before the law.”[396]

Human Rights Standards on Immigrant Workers, Including Unauthorized Workers

The protections of the Universal Declaration of Human Rights and the ICCPR apply to “all persons,” including immigrant workers, regardless of legal status. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) further affirms the equality of all persons before the law and prohibits governments from discriminating in policy or practice on ethnic grounds.[397] The Committee on the Elimination of Racial Discrimination, which monitors state compliance with the ICERD, has interpreted the convention to prohibit laws and policies that have “an unjustifiable disparate impact” on racial and ethnic minorities.[398] In the US, the burden of weaker labor law protections for agricultural workers falls disproportionately on Latino citizens and immigrants.

[381]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992.

[382] Ibid, art. 26.

[383] Ibid., art. 7; and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the United States on October 21, 1994.

[384] See, for example, European Court of Human Rights (ECHR), Aydin v. Turkey, judgment of 25 September 1997, 25 EHRR 251, paras. 62-88; and ECHR, Prosecutor v. Furudnija, ICTY, judgment of 10 December 1998, Case No. IT-95-17/1-T, paras. 163-86.

[385] UN Human Rights Committee (HRC), General Comment No. 31, “Nature of the general legal obligation on states parties to the Covenant,” U.N. Doc. CCPR/C/21/Rev. 1/Add.13 (2004), para. 9.

[386] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981. The United States signed CEDAW in 1980 but has not ratified.

[387]See Vienna Convention on the Law of Treaties, concluded May 23, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980, art. 18.

[388] UN Committee on the Elimination of Discrimination against Women (CEDAW Committee), General Recommendation No. 19, “Violence against Women,” UN Doc. A/47/38 at 1 (1993), para. 24 (t).

[389] CEDAW Committee, “Concluding Observations: Germany,” U.N. Doc. CEDAW/C/DEU/CO/6, February 10, 2009; CEDAW Committee, “Concluding Comments: Czech Republic,” U.N. Doc. CEDAW/C/CZE/CO/3, August 25, 2006; CEDAW Committee, “Concluding Observations: Bangladesh,” U.N. Doc. CEDAW/C/BGD/CO/7, February 4, 2011.

[390] CEDAW, art. 11.

[391] CEDAW Committee, General Recommendation No. 12, “Violence against Women,” U.N. Doc. A/44/38 at 75 (1989); CEDAW Committee, General Recommendation No. 19, “Violence against Women,” UN Doc. A/47/38 at 1 (1993).

[392] Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990. The United States signed the CRC in 1995 but has not ratified.

[393] See Vienna Convention on the Law of Treaties, art. 18.

[394] CRC, art. 32.

[395] CRC, art. 34.

[396] Inter-American Commission on Human Rights, Report no. 80/11, Jessica Lenahan (Gonzales) et al. (United States), July 21, 2011, paras. 110-111.

[397]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on November 20, 1994.

[398]UN Committee on the Elimination of Racial Discrimination, General Recommendation No. 14, “Definition of discrimination” (Forty-second session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 (1994), p. 277.