International Law for Women

a resource for women's human rights advocates

Category: Rule of Law

  • Canadian legislation could improve women’s right to life

    Canadian legislation could improve women’s right to life

    The United Nations has declared that women’s rights are facing a global backlash affecting both public and private spheres, online and off. So, what is Canada, as a notable human rights leader, doing to progress women’s rights? In the spring of 2025, the Honourable Rechie Valdez became Minister of Women and Gender Equality (WAGE), thus reigniting hope for Canadian women in achieving substantive gender equality. In 2025 parliamentarians introduced several new bills in the Senate and House of Commons that would respect, protect and fulfill women’s human rights, as per international standards. As human rights are interrelated and interdependent, these bills, which focus on the health and safety of women, would operate collectively to reduce morbidity and mortality rates.

    The objective of this two-part article is not to replicate or replace research done by healthcare specialists or advocacy organizations, but rather to provide insight into the international legal framework that applies to the pertinent legislation. This article highlights the international commitments made by Canada to ensure the health of women. But health must be thought of as extending to both physical and psychological states. A woman who is perpetually unsafe or in a state of fear is at risk of compromised health, beyond physical injury resulting directly from violence. To that effect, legislation focused on providing safety for women through protection for victims of gender-based violence, will follow in an upcoming article.

    Vial with specimens
    Photo by Artem Podrez on Pexels.com

    Part I – Health:

    The right to adequate health is a global norm in international human rights law. Since 1976, Canada has been a State party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which mandates the right to heath.[i]

    Article 12

    1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

    2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

    (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

    (b) The improvement of all aspects of environmental and industrial hygiene;

    (c) The prevention, treatment and control of epidemic, endemic, occupational and other disease

    (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

    Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is subject to the principle of non-discrimination. However, women have been significantly underrepresented in health research for decades, thereby creating sex and gender-based disparities in health outcomes. Those disparities in turn create barriers to the enjoyment of other fundamental rights, including the right to education, the right to work, the right to political participation, and the right to life – the foundation of all other rights and fundamental freedoms.

    The right to life, proscribed under Article 6 of the International Covenant on Civil and Political Rights, carries both positive and negative obligations owed by the State party – the negative obligation to respect life by abolishing arbitrary killings, the positive obligations to protect life from threats by third parties, and by fulfilling certain conditions necessary to sustain life.

    The following bills, by remediating historical health inequities, could progress women’s substantive equality by fulfilling conditions necessary for their enjoyment of the right to life with dignity.

    Bill S-204: National Framework on Heart Failure Act[ii]

    An Act to establish a national framework on heart failure

    Sponsored by the Honourable Senator Yonah Martin

    First reading: May 28, 2025

    Second reading: December 9, 2025

    Assigned to the Senate Committee on Social Affairs, Science and Technology for study.

    The preamble of Bill S-204 recognizes that, “…Whereas heart failure is the third-leading cause of hospitalization in Canada — following childbirth and chronic obstructive pulmonary disease (COPD) — and remains a leading cause of death, particularly among women, for whom it is second only to cancer and ischemic heart disease”.

    Bill S-204 would require that the Minister of Health “develop a national framework to support improved access to heart failure prevention, diagnosis, management and evaluation to ensure better health outcomes…”[iii].

    The Heart and Stroke Foundation of Canada reports that heart disease and stroke are the primary cause of premature death for women in Canada, yet two thirds of clinical research on heart disease and stroke have been focused on men. Using the average male body as the prototypical patient ignores the evidence that many conditions present differently in females and some gender diverse persons – heart attacks are one example and those differences are costing women their lives.

    While Bill S-204 does not explicitly name women outside of the Preamble, the Content section,(paragraph 2 (a)), provides that the framework “ensure equitable access across all demographics and regions”. Additionally, Bill S-243, an Act to establish a national framework for women’s health in Canada, if passed would complement Bill S-204.


    Bill S-243: National Framework for Women’s Health in Canada Act[iv]

    An Act to establish a national framework for women’s health in Canada

    Sponsored by the Honourable Senator Danièle Henkel

    First reading December 9, 2025

    Debate at second reading in Senate: As of February 5, 2026

    Bill S-243 provides the support necessary for the Minster of Health to develop a national framework to “support improved health outcomes and health access for women, equitable investment in women’s health research and innovation and health-focused entrepreneurship driven by women”[v].

    (International Legal scope follows “The necessity”)

    a side view of a woman wearing face mask and bouffant cap
    Photo by Tima Miroshnichenko on Pexels.com

    The necessity

    Although women live longer on average than men,[vi] Canadian women spend 24% more time living in poor health and disability than men.[vii] Health issues that exclusively or disproportionately affect women, are significantly under-funded, under-researched, and under-treated. For example, 80% of individuals with an autoimmune disease are women, yet twice as many male participants are used in clinical trials. Furthermore, Harvard Health reports that “70% of those affected by chronic pain are women, whereas 80% of pain research is conducted on males”.(sic)[viii]

    In research and health care, sex matters (although not exclusively). The female body is a complex, dynamic system of inter-related structural and physiological systems including sex-specific hormones and chromosomes, distinct from males and therefore requiring specific research.

    Most research on female health has focused primarily on sexual and reproductive health and maternal, newborn and child health. Only recently have conditions such as endometriosis, adenomyosis, polyendocrine metabolic ovarian syndrome (PMOS), formerly known as polycystic ovarian syndrome (PCOS), premenstrual dysphoric disorder (PMDD), pelvic floor dysfunction and other conditions of the female reproductive system, become more broadly recognized. With scant research, millions of reproductive age women and gender diverse persons suffer in pain for years before even receiving an accurate diagnosis.

    Menopause, additionally, has been ignored in 99% of pre-clinical age-related studies[ix], despite being inextricably linked to aging in females. Menopause is also strongly associated with different types of dementia, including vascular dementia and Alzheimer’s. “Alzheimer’s Disease (AD) is marked by pronounced sex differences in pathophysiology and progression.” According to the Alzheimer’s Society, around twice as many women have AD than men. However, clinical trials in AD include eight times more male participants than female participants.[x]

    Photo by Anna Shvets on Pexels.com

    In Canada women were routinely excluded from clinical trials until 1997. According to Global Data Healthcare, drug interactions, optimum dosage and side effects of pharmaceutical treatments may differ according to the sex of the patient, yet females are underrepresented in phase 1 clinical trials of pharmaceuticals.[xi]

    Trial participation matters because in cancer, for example, “multiple bodily factors contribute to how the disease develops, progresses and responds to treatment, and many of these factors relate to sex. (…) Between 2003 and 2016, females represented less than 10 per cent of participants in lung and pancreatic cancer trials, despite accounting for more than 40 per cent of the diagnoses.”[xii] Additionally, while 20% of all cancer research funding goes to breast cancer, comparatively, funding for gynecological cancers – cervical, ovarian and uterine – are consistently underfunded despite their higher mortality rates. Breast cancer now has a 5-year survival rate of 89%, whereas the ovarian cancer survival rate is only 44%[xiii].

    Furthermore, chronic pain conditions are also impacted by the gender health gap. A data analysis conducted between 2004 – 2018 on over 20,000 individuals with fibromyalgia, found that 88.8% of the sufferers were women and the mean age was 48.[xiv] Fibromyalgia is one of the most underfunded diseases per patient, worldwide. Its root causes are still poorly understood and overlapping comorbidities make it difficult to diagnose and prone to stigmatization. Thus treatment is limited to alleviating the symptoms, which include debilitating widespread chronic pain, fatigue and cognitive dysfunction, without addressing a root cause.

    Other underfunded, female dominant conditions include myalgic encephalomyelitis (formerly chronic fatigue syndrome), headaches, migraine, osteoporosis and eating disorders.[xv] Migraine, for example, is twice as prevalent in females as in males, which is thought to be explained by sex hormones, and therefore a ‘woman’s disease’. That gender bias and stigmatization of migraine is further perpetuated by the funding disparity.[xvi]

    Lack of understanding and lack of funding is a vicious, self-perpetuating circle. Evidently, more must be done to ensure health research into conditions and diseases unique to or disproportionately impacting women. Additionally, with multiple factors affecting women’s health, there is a need for diverse disaggregation of data using both sex and gender[xvii], as well as age and other characteristics, such as ethnicity and socio-economic status. This intersectional data collection would allow healthcare to truly move beyond the ‘one-size fits all’ approach, and even beyond a binary approach.

    Where there is insufficient data or research, there is no adequate treatment or, significantly, prevention for disease. Consequentially, the substantive inequalities in health care create significant barriers from obtaining substantive equality in other rights-based contexts, such as the right to education, to work, to political participation, and the right to life.

    International legal scope

    In 2000 the UN Committee on Economic, Social and Cultural Rights published its General Comment No. 14, clarifying the scope of Article 12 on the right to health, under the International Covenant on Economic, Social and Cultural Rights . Recognizing the structural inequality in health care, the Committee emphasized the need for a national action plan to fulfill women’s right to health. That recommendation was over 25 years ago.

    21. To eliminate discrimination against women, there is a need to develop and implement a comprehensive national strategy for promoting women’s right to health throughout their life span. Such a strategy should include interventions aimed at the prevention and treatment of diseases affecting women, as well as policies to provide access to a full range of high quality and affordable health care, including sexual and reproductive services. A major goal should be reducing women’s health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence.[xviii]

    The Committee articulated the requirement for a gendered perspective. (At the time, sex and gender were frequently conflated as being synonymous.) [xix]

    20. The Committee recommends that States integrate a gender perspective in their health-related policies, planning, programmes and research in order to promote better health for both women and men. A gender-based approach recognizes that biological and socio-cultural factors play a significant role in influencing the health of men and women. The disaggregation of health and socio-economic data according to sex is essential for identifying and remedying inequalities in health.

    According to the WHO’s 2024 report on Health Inequality Monitoring, data “can be said to be disaggregated when they are broken down according to a dimension of inequality.” Therefore, using both sex and gender disaggregated data[xx],as they are not synonymous, would be most conducive to an intersectional approach while fulfilling the UN legal criteria. Additionally, this approach aids the World Health Organization (WHO), the Organization for Economic Co-operation and Development (OECD) and other global NGOs in their research.

    aged happy women making video call online on smartphone
    Photo by Anna Shvets on Pexels.com

    Canada is also a State party to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), which it ratified in 1981. The CEDAW Committee’s General Recommendation No. 24 (on) Article 12 of the Convention, adopted in 1999, states the following:

    11. Measures to eliminate discrimination against women are considered to be inappropriate if a health-care system lacks services to prevent, detect and treat illnesses specific to women.[xxi]

    The CEDAW Committee provided the following recommendations for government policy that would considers women’s health at all stages of life.

    29. States parties should implement a comprehensive national strategy to promote women’s health throughout their lifespan. This will include interventions aimed at both the prevention and treatment of diseases and conditions affecting women, as well as responding to violence against women, and will ensure universal access for all women to a full range of high-quality and affordable health care, including sexual and reproductive health services.

    To that effect, States have only recently begun to facilitate support for menopause, due in part to the rising number of women living longer. (see Figure 1) Age is one of the protected characteristics increasingly recognized throughout human rights legal instruments. It is reiterated in CEDAW’s General Recommendation No. 27 on older women and protection of their human rights (2010) as “one of the grounds on which women may suffer multiple forms of discrimination”, [xxii] thereby recommending that statistical data on menopause be age and sex disaggregated.

    Figure 1: Absolute numbers of women in menopausal transition (45-60 years) according to world regions between 1951 and 2021 (source: United Nations 2022).

    Additionally, CEDAW recommends the following, according to the principle of non-discrimination.


    30. States parties should allocate adequate budgetary, human and administrative resources to ensure that women’s health receives a share of the overall health budget comparable with that for men’s health, taking into account their different health needs.

    Photo by Pixabay on Pexels.com

    Conclusion:

    The right to health is a collective human right that States have committed to respect, protect and fulfil. Furthermore, it is linked to the right to life, which is necessary for the enjoyment of all other human rights.

    In January of 2025 the World Economic Forum in collaboration with McKinsey Health Institute, a think-tank on global economic healthcare trends, produced the insight report Blueprint to Close the Women’s Health Gap: How to Improve Lives and Economies for All. The key insight was that addressing nine specific conditions could increase the global GDP by $400 billion by 2040. [xxiii]

    On October 22, 2025, an article by the McKinsey Health Institute reported that closing the women’s health gap in Canada could “potentially boost the country’s economy by $30 billion annually by 2040”[xxiv]. As Canadian sovereignty is under attack through financial coercion, this is a catalyst incentivizing the government to support women’s healthcare. Improved healthcare also affects an individual’s overall lifetime earnings, decreasing income disparity, and thereby improving a woman’s individual ability to thrive.

    In 1986 the UN General Assembly adopted the Declaration on the Right to Development (resolution 41/128). It reminded States that the objective of development is for the “constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom”[xxv]. That message has been largely forgotten.

    Although both the right to development and the right to health are subject to progressive development, the world is decades behind in progress for those rights benefiting women equally in comparison to men, contrary to the principle of non-discrimination. To address structural barriers, women’s equality rights must exist not just on paper, but in practice, with State support.

    (Subscribe at the link on the bottom of page for the Part II of this article, on legislation addressing women’s safety.)

    Call to Action

    After reviewing the text of a bill, there are two options to participate in the process of supporting it.

    Bill S-204: National Framework on Heart Failure Act

    Bill S-243:National Framework for Women’s Health in Canada Act

    Write a letter to your Member of Parliament (recommended for everyone):

    • Expressing your opinions, personal experiences, recommendations, or legal arguments for or against a bill
    • Find your MP here: https://www.ourcommons.ca/members/en/search
    • Your contact information must be included, as this determines your riding and legitimizes your communication

    Write a letter to a Senator that represents your province:

    • Expressing your opinions, personal experiences, recommendations, or legal arguments for or against a bill
    • Find your provincial Senators here: https://sencanada.ca/en/senators/  
    • Your contact information must be included, as this determines your riding and legitimizes your communication

    Submit a brief to a Senate Committee

    (recommended for organizations and knowledgeable individuals):

    “Senate committees regularly invite individuals, experts, groups and organizations, lobbyists, public servants and ministers of the Crown to appear before them as witnesses to receive information relevant to a bill they are considering or a special study they are undertaking. There are two ways to participate in a committee’s study: by giving oral evidence (testimony) or by submitting a brief (written evidence).”

    Click to access cmtes_how-to-participate-in-a-senate-study_final_2021oct_en.pdf

    [i] International Covenant on Civil and Political Rights, 1966, United Nations.  https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights 

    [ii] National Framework on Heart Failure Act, Bill S-204 – First Session, Forty-fifth Parliament, Senate of Canada; 2025.
     https://www.parl.ca/legisinfo/en/bill/45-1/s-204  

    [iii] Para. 3 (1) Development; National Framework on Heart Failure Act, Bill S-204 – First Session, Forty-fifth Parliament, Senate of Canada; 2025. https://www.parl.ca/documentviewer/en/45-1/bill/S-204/first-reading

    [iv] National Framework for Women’s Health in Canada Act; Bill S-243; 1st Session, 45th Parliament, Senate of Canada; 2025. https://www.parl.ca/legisinfo/en/bill/45-1/s-243

    [v] Para. 2 (1) Development; pg. 2, National Framework for Women’s Health in Canada Act; Bill S-243; 1st Session, 45th Parliament, Senate of Canada; 2025. https://www.parl.ca/DocumentViewer/en/45-1/bill/S-243/first-reading 

    [vi] Differences across the lifespan between females and males in the top 20 causes of disease burden globally: a systematic analysis of the Global Burden of Disease Study 2021; Volume 9, Issue 5, May 2024; The Lancet; Vedavati Patwardhan, PhDa∙ Gabriela F Gil, MPHb ∙ Alejandra Arrieta, MIDPb ∙ Jack Cagney, MScb ∙ Erin DeGraw, MPHb ∙ Molly E Herbert, MScb ∙ et al.
     https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(24)00053-7/fulltext

    [vii] McKinsey Health Institute; Closing the women’s health gap: Canada’s $37 billion opportunity. (October 22, 2025). https://www.mckinsey.com/mhi/our-insights/closing-the-womens-health-gap-canadas-37-billion-dollars-opportunity 

    [viii] Harvard Health Publishing; Women and pain: Disparities in experience and treatment (Nov. 9, 2017) https://www.health.harvard.edu/blog/women-and-pain-disparities-in-experience-and-treatment-2017100912562 

    [ix] Gilmer, G., Hettinger, Z.R., Tuakli-Wosornu, Y. et al. Female aging: when translational models don’t translate. Nature Aging , 1500–1508 (Dec. 5, 2023). https://doi.org/10.1038/s43587-023-00509-8

    [x] GlobalData Healthcare; Women are underrepresented in trials for conditions that predominately affect them; June 26, 2023.  https://www.clinicaltrialsarena.com/analyst-comment/women-underrepresented-trials-conditions/?cf-view   

    [xi] Ibid.

    [xii] We can’t defeat cancer without acknowledging the differences between men and women; Isy Godfrey; October 24, 2023; The Institute of Cancer Research.  https://www.icr.ac.uk/research-and-discoveries/cancer-blogs/detail/science-talk/we-can-t-defeat-cancer-without-acknowledging-the-differences-between-men-and-women 

    [xiii] Cancer-specific stats 2025; Canadian Cancer Society in collaboration with the Government of Canada. https://cdn.cancer.ca/-/media/files/research/cancer-statistics/2025-statistics/2025_cancer-specific-stats.pdf?rev=659842a56b7748129ca562088cc7e971&hash=BF1A42D8561EC68D584500DD0F2FAF23&_gl=1*6gg2kk*_gcl_au*MTI4ODA2NjE5MS4xNzY5ODI3Mjc1

    [xiv] Exploring gender differences, medical history, and treatments used in patients with fibromyalgia in the UK using primary-care data: a retrospective, population-based, cohort study. The Lancet Rheumatology; Vo. 4, Sup. 1, September 2022, Page S20; Cardiff U.K.  https://www.sciencedirect.com/science/article/abs/pii/S266599132200296X 

    [xv] Mirin AA. Gender Disparity in the Funding of Diseases by the U.S. National Institutes of Health. J Women’s Health (Larchmt). 2021 Jul;30(7):956-963. doi: 10.1089/jwh.2020.8682. Epub 2020 Nov 27. PMID: 33232627; PMCID: PMC8290307. https://pmc.ncbi.nlm.nih.gov/articles/PMC8290307/

    [xvi] Casas-Limón J, Quintas S, López-Bravo A, Alpuente A, Andrés-López A, Castro-Sánchez MV, Membrilla JA, Morales-Hernández C, González-García N, Irimia P. Unravelling Migraine Stigma: A Comprehensive Review of Its Impact and Strategies for Change. J Clin Med. 2024 Sep 3;13(17):5222. doi: 10.3390/jcm13175222. PMID: 39274435; PMCID: PMC11396411. https://pmc.ncbi.nlm.nih.gov/articles/PMC11396411/#sec5-jcm-13-05222 

    [xvii] It “is important to highlight is the divergent terminology of sex and gender which, conventionally, are mistakenly used as synonyms. Sex refers to the biological and genetic features of individuals, whereas gender is intended as the social perspective of human beings concerning expressions, behaviors, and social roles. The latter is considered a personal choice and can generate a nonbinary range of gender identities.” Tokatli, M. R., Sisti, L. G., Marziali, E., Nachira, L., Rossi, M. F., Amantea, C., Moscato, U., & Malorni, W. (2022). Hormones and Sex-Specific Medicine in Human Physiopathology. Biomolecules, 12(3), 413. https://doi.org/10.3390/biom12030413

    [xviii] E/C.12/2000/4: General Comment No. 14 on the highest attainable standard of health (2000), The Committee on Economic, Social and Cultural Rights https://www.ohchr.org/en/documents/general-comments-and-recommendations/ec1220004-general-comment-no-14-highest-attainable

    [xix] “Gender interacts with but is different from sex. The two terms are distinct and should not be used interchangeably. It can be helpful to think of sex as a biological characteristic and gender as a social construct. Gender and Health, questions and answers”; 24 May 2021; https://www.who.int/news-room/questions-and-answers/item/gender-and-health

    [xx] “Gender interacts with but is different from sex. The two terms are distinct and should not be used interchangeably. It can be helpful to think of sex as a biological characteristic and gender as a social construct. Gender and Health, questions and answers”; 24 May 2021; https://www.who.int/news-room/questions-and-answers/item/gender-and-health

    [xxi] CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health)

    Adopted at the Twentieth Session of the Committee on the Elimination of Discrimination against Women; 1999 (Contained in Document A/54/38/Rev.1, chap. I)

    [xxii] Paragraph 2; General recommendation No. 27 on older women and protection of their human rights UN. Committee on the Elimination of Discrimination against Women; 2010; CEDAW/C/GC/27; https://digitallibrary.un.org/record/711348?ln=en&v=pdf

    [xxiii] World Economic Forum. (2025, January). Blueprint to Close the Women’s Health Gap: How to Improve Lives and Economies for All. https://www.weforum.org/publications/blueprint-to-close-the-women-s-health-gap-how-to-improve-lives-and-economies-for-all/

    [xxiv]  Closing the women’s health gap: Canada’s $37 billion opportunity. McKinsey Health Institute; October 22, 2025. https://www.mckinsey.com/mhi/our-insights/closing-the-womens-health-gap-canadas-37-billion-dollars-opportunity 

    [xxv] Declaration on the Right to Development; UNGA 41/128, adopted December 4, 1986. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-right-development 

  • Backsliding of women’s rights and threats to political participation

    Backsliding of women’s rights and threats to political participation

    The current global state of women’s rights

    At the 69th Session of the Commission on the Status of Women, held at the United Nations Headquarters in NYC this past September, UN Secretary-General António Guterres declared that “women’s rights are under siege. The poison of the patriarchy is back – and it is back with a vengeance”.

    The global condition of women is deteriorating. In fact, the United Nations predicts that it will be almost 300 years before gender equality is achieved worldwide if it continues at the current pace. Regressive laws are rolling women’s back rights by decades in a variety of countries, from liberal democracies like the United States, electoral autocracies like Russia, and in (now) closed autocracies like Afghanistan. They have found something in common, which is the desire to oppress women. The global trend of de-democratization threatens to bring women’s progress down with it. State hostility towards women’s movements threatens to replace existing women’s equality organizations with state-operated agencies aimed at preserving the traditional family and women’s gendered roles as mothers and caretakers.

    The principle of non-discrimination, which includes women,is provided for in the nine core international human rights treaties. According to the 1966 International Covenant on Civil and Political Rights (ICCPR) – Article 2, paragraph 1:

    Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

    A diverse group of resolute-looking women in suits stand in front of a neoclassical building.
    (AI generated image)

    Threats to women’s political participation

    “A move towards authoritarianism is often accompanied by a resurgence of patriarchal values, with devastating effects on gender equality. Leaders with authoritarian leanings will encourage intolerance of and misogyny against women in public life, with the goal of dividing and cultivating fear. As countries inch towards authoritarianism, this backlash against women is noticeable.”[i]

    On June 14th of 2025 Minnesota State Representative and Speaker Emeritus Melissa Hortman, along with her husband, were the victims of a politically motivated assassination. Police found a hit list in the car of the shooter that included the names of almost 70 pro-abortion advocates and lawmakers.[ii]

    On November 5th of 2025, Mexico’s President Claudia Sheinbaum was sexually assaulted by a man as she made a public appearance; the incident was captured on video that went viral.[iii] Acknowledging that this was an indication of the extensive sexual violence that Latin American women face daily, she is pressing charges and is calling for a review of sexual harassment laws.

    In January 2019 an AI-generated ‘deepfake’ porn video of Alexandria Ocasio-Cortez circulated online, traumatizing the Democratic Congresswoman. In response, as a survivor of sexual violence, she spoke out publicly against deepfakes as “a way of digitizing violent humiliation”, citing violations of privacy and autonomy.[iv] Fighting against this injustice that so many young women are subjected to, she promulgated the Take it Down act[v], which the U.S. Senate passed into law on May 19, 2025.

    In October 2022, the home of U.S. Speaker of the House, Nancy Pelosi, was broken into where her husband was brutally bludgeoned on the head with a hammer by an assailant intent on finding her. Prosecutors say the man had “a violent plan to kidnap Nancy Pelosi, to hold her hostage, to break her kneecaps, to teach her a lesson.”[vi] Paul Pelosi survived the attack, after surgery and a long recovery, but the incident highlighted the hostile level that political rhetoric has reached and the vulnerability of lawmakers and their families. Shortly afterwards Congresswoman Nancy Pelosi stepped down from her role as Speaker of the House and Democratic Leader, after serving over 40 years in politics with the honour of being the first and only female speaker of the U.S. House of Representatives.

    The law

    None of this is justifiable. And all of it is designed to silence and drive women, including younger generations, out of the politics and the public sphere. Political participation is a human right. And domestic law must conform to international law. To that effect Article 25 of the International Covenant on Civil and Political Rights, ratified by 175 States by the end of 2025[vii], provides that:

    Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

    (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

    (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

    (c) To have access, on general terms of equality, to public service in his country.

    In addition to the International Covenant on Civil and Political Rights (ICCPR), women’s political participation is also provided for under the Action for Equality, Development and Peace – Beijing Declaration and Platform for Action of 1995. Strategic objectives include Women in Power and Decision Making.[xxv]

    Strategic objective G.1. –

    Take measures to ensure women’s equal access to and full participation in power structures and decision-making. Actions to be taken.

    Strategic objective G.2. –

    Increase women’s capacity to participate in decision-making and leadership. Actions to be taken.

    “Actions to be taken” refers to taking positive action, also known as affirmative action, to account for a history of structural inequality and systemic discrimination until substantial equality is achieved.

    According to the Inter-Parliamentary Union (IPU), globally women occupy only 27.2% of parliamentarian seats. And while there was a significant increase between 2000 – 2015, that progress has slowed, rising by a mere 0.3% between 2024 and 2025, which was a landmark year for elections.[viii] The intimidation, harassment and violence perpetrated against female parliamentarians has been a pressing issue for the (IPU) since 2016. The IPU has created various counter-measure initiatives aimed at achieving gender parity in parliaments, hosting an annual Summit of Women Speakers of Parliament, advocating best practices and publishing Guidelines for the elimination of sexism, harassment and violence against women in parliament[ix].

    Threats against women parliamentarians arise from both the public and from their political parties, driving them out of politics and undermining political participation. This negatively impacts women’s representation and diminishes democracy itself.

    De-democratization and the autocratization of the USA

    International human rights law emphasizes the indivisibility and interdependence of human rights. They work together to strengthen one another, but in contrast, the loss of one right can lead to the loss of others.

    The Varieties of Democracy Institute developed theVarieties of Democracy (V-Dem) Research Project using data collection and 600+ indicators to measure and conceptualize democracy into core principles and components, applying them to every country in the world. Components include gender equality, credible elections, and freedom of expression, as indicated below in infographic 1. “In 2019 autocracies outnumbered democracies for the first time since 2001”[x] sparking concerns over a “third wave of autocratization”.

    Infographic 1: V-Dem Global State of Democracy Indices
    Infographic 1: V-Dem Global State of Democracy Indices

    The V-Dem 2024 Democracy Report listed the United States as an “autocratizing” country on the Liberal Democracy Index, registering substantial and significant deterioration compared to its 2014 level.[xi] Analysis from the Global State of Democracy Initiative, an inter-governmental organization, also reports backsliding of democracy in the United States.[xii] Furthermore, the United Nations Human Rights Council recently adopted a resolution citing a lack of cooperation from the United States, who was due for their Universal Periodic Review (UPR) in 2025. The UPR is an interactive peer-review process of a States’ human rights performance that every Member State of the UN is required to participate in every 5 years. However, the Trump administration announced that it would be boycotting the UPR.[xiii] This is clearly an affront to international human rights law.

    According to the Brennan Center for Justice, a U.S. based nonpartisan law and policy organization, “America’s longstanding and abysmal record on myriad gender equity markers has been the true harbinger for our downgraded status.”[xiv]

    De-democratization and regression of women’s rights in the United States have impacted their rights to privacy (Art. 17 ICCPR), health (Art. 12 ICESCR), and life (Art. 6 ICCPR), especially regarding maternal mortality. The U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022 reversed Roe v. Wade, which set abortion rights back almost 50 years. In 2026, women in South Carolina could face up to 30 years in prison for having an abortion if Bill S. 323 – the Unborn Child Protection Act – is passed. Additionally, Montana’s Bill HB 609 would make traveling out of state for an abortion a crime, punishable by up to 5 years in prison. This breaches the right to movement, protected under Article 12 of the ICCPR, and discriminates since men do not face similar penalties. These challenges to women’s rights emphasize the need for stronger progressive female representation in parliament.

    Additionally, some Republican leaders have even suggested that women be denied the right to vote, contrary to international law. Article 7 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for example, guarantees equal political participation. But U.S. Pentagon Chief, Republican Pete Hegseth, supports a law to end women’s voting rights. The ‘one household, one vote’ system aims to disempower women and regress to a patriarchal order. Likewise, the SAVE ACT (Safeguard American Voter Eligibility Act; H.R. 8281), tabled in 2025, imposes unreasonable obstacles to voting for anyone who has undergone a name change, including married women, trans people and adoptees. Political participation, including the right to vote, is a human right and must be free from discrimination on the basis of sex or gender.

    Convention on the Elimination of All Forms of Discrimination against Women (1979), Article 7:

    States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

    (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

    (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

    (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

    The growing threat against women’s equal access to human rights and fundamental freedoms is of concern to all women, as ideologies rapidly spread across the internet. Of further concern is the U.S. Trump Administration’s expressed desire to “make Canada the fifty-first state”, thereby potentially subjecting Canadian women to the same misogynistic and systemic overhauling of the U.S. legal order.

    Denying women political agency is a form of patriarchal protectionism that in effect subordinates women while strengthening the control of male State and non-State actors alike. But a robust democracy depends on the inclusion of a diversity of voices. Women’s rights are regarded as the canary in the coal mine of democracy because of their inextricable link.

    The interconnectedness of human rights

    Human rights experts recognize the interconnectedness and interdependence of human rights. Oppressors strategically take aim at women’s political rights, such as the right to public participation which is closely connected to freedom of assembly and freedom of expression, precisely because without those rights women are unable to promote or protect other rights. This is particularly true of freedom of expression, our most valuable right – it is a cornerstone of democracy integral to the protection and promotion of other rights. Consequently, not only are female parliamentarians at high risk of intimidation, harassment and violence, but so are female journalists and women’s human rights defenders, both from state and non-state actors alike. This violates the right to freedom of expression, which is protected by Article 19, paragraph 2 of the International Covenant on Civil and Political Rights.

    “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

    According to the International Knowledge Network of Women in Politics “(t)hese challenges discourage women from actively participating in politics and can lead to self-censorship.”[xix] The women that we depend on to inform us in the media and to represent our interests in policy-making at various levels of governance are silenced and driven out of office. Furthermore, freedom of expression includes both the right to impart and the right to receive information. Therefore, the rights of all women are indirectly violated by attacks on female journalists, parliamentarians, and human rights defenders.

    A group of (Afghan) women in blue burqas standing outside; 2023; source – Faruk Tokluoğlu, Pexels

    Illegitimate restrictions to political rights threaten social rights, such as equal access to education or healthcare, which are proscribed in the International Covenant on Economic, Social and Political Rights (1966). This is exactly what the women and girls of Afghanistan have been facing since the Taliban regained control in 2021 – no education past grade 6, they cannot be examined by a male doctor, nor are females permitted to study or practice medicine, including midwifery and nursing; thus, their rights to education, work, healthcare, and right to life are all threatened. Widows are reduced to begging on the streets to feed their children and themselves. As intended by the Taliban, women and girls are condemned to a life of economic dependence and poverty. These extreme forms of patriarchal protectionism deny women both political and personal agency. Furthermore, they are only permitted to leave their homes ‘out of necessity’ as proscribed by law. Afghan women are facing a severe mental health crisis due to the denial of their fundamental rights and freedoms. Experts “said that their plight was among the worst in the world.”[xx]

    First invisible, and now silent, Afghan women have been erased from public life. The latest backlash to women’s rights in Afghanistan attacked the right to public participation and freedom of expression in the most extreme manner – denying women the right to have their voices heard in public. Under Article 13 of The Law on the Promotion of Virtue and the Prevention of Vice[xxi] women are forbidden even from merely speaking aloud with each other and from singing in public.

    (3) “A woman’s voice is considered intimate and should not be heard singing, reciting, or reading aloud in public”; and (8) If an adult woman leaves her house out of necessity, she must cover her voice, face, and body”.

    Fighting against these draconian measures, though confined to the home, women and girls took to online education. Consequently, the Afghan government cut off fibre optic internet in September 2025[xxii], denying access to information, freedom of assembly and freedom of expression, thus severing the last means of communication that women and girls had with the outside world. Women’s human rights defenders are calling the sum of these human rights violations ‘gender apartheid’.

    It hasn’t always been that way. Afghan women were given the right to vote in 1919.[xxiii] And in 2020, Afghan women held over 25 per cent of seats in Parliament and could run for president.”[xxiv] Women are now banned even from working in civil society organizations, national and international NGOs including the UN, despite the country’s major humanitarian crisis. Now the Taliban, acting as the de facto authority in Afghanistan, are erasing women completely from public life – policies consistent with patriarchal autocracies that chip away at women’s rights, forcing them back into the home and to a life of servitude as mothers and caregivers. Without women in public life, the rate of child marriage has skyrocketed, and consequently, so have maternal mortality rates. Disturbingly, Afghanistan is just one of the many States where women are experiencing a systemic backlash – a stark reminder of the fragility of women’s and girls’ rights.

    Afghan women in 1927; source: Commons

    Collective compliance

    It is natural to feel helpless in the face of such situations. When human rights violations occur on a massive scale at the hands of the State there is a diffusion of responsibility and unwillingness to challenge the State. No single individual feels compelled to take on the responsibility or costs of litigation to challenge the wrongful conduct in court. Conversely, an individual who is the sole victim of a human rights violation would likely pursue justice on their own volition. Thus, human rights violations of a broad scope are often the most challenging to reverse. Individual responsibility may be out of reach for mass human rights violations, but collectively they are not. Solidarity is imperative. Furthermore, when a human rights violation is facilitated by law, we tend to trust that it is compliant with international law, especially in democratic States.

    Why international law matters

    Knowledge is power. Understanding international law allows for holding State authorities accountable to their legal obligations arising from treaties with other States and, specific to human rights treaties, to all individuals under their jurisdiction. When these provisions are violated through acts or omissions it’s crucial to know how to enforce accountability through judicial and non-judicial mechanisms at domestic, regional, and international levels.

    States must protect and promote the right to political participation, ensuring it is meaningful, effective, and inclusive with a real impact on decision-making. Additionally, domestic laws that lead to the loss of rights contradict the international legal principle of non-retrogression of human rights.

    Women must defend their rights to public life and participate in policy making at all levels of governance from civil society organizations to the highest diplomatic posts of international organizations. This is imperative both to protect and to promote women’s human rights and democracy itself, especially in the face of increasing autocratization.

    Returning to the UN Secretary-General’s warning at the 69th Session of the Commission of Women – “the poison of the patriarchy is back – and it is back with a vengeance” (…), “but there is an antidote”, he continued, (and) “that antidote is action”. We all have an important role to play in 2026 and beyond.

    [i] Bergsten, S., and Lee, S. A. 2023.“The Global Backlash against Women’s Rights: A Stark Reminder on International Women’s Day.” Human Rights Watch Dispatches [blog], 7 March. https://www.hrw.org/news /2023/03/07/global-backlash-against-womens-rights. Accessed 4 April 2023.

    [ii] A ‘formidable public servant.’ Who was Melissa Hortman, the Minnesota state representative assassinated in her home?; Boyetter, Chris; CNN US; June 14, 2025.  https://www.cnn.com/2025/06/14/us/melissa-hortman-minnesota-assassination 

    [iii] Mexico president to seek charges after being groped on the street; Grant, Will; 5 November 2025; https://www.bbc.com/news/articles/cy9pgev02pno 

    [iv] Ocasio-Cortez, Lee, Durbin, Graham Introduce Bipartisan, Bicameral Legislation to Combat Non-Consensual, Sexually Explicit Deepfake Imagery; May 21, 2025; press release: https://ocasio-cortez.house.gov/media/press-releases/ocasio-cortez-lee-durbin-graham-introduce-bipartisan-bicameral-legislation  Accessed Nov. 21, 2025.

    [v] Introduced in Senate (01/16/2025) Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act or the TAKE IT DOWN Act; 119th Congress (2025-2026); Accessed December 19, 2025 https://www.congress.gov/bill/119th-congress/senate-bill/146 

    [vi] Paul Pelosi details attack and arduous recovery while on stand in DePape federal trial; Kop, Jeffrey, CNN Politics; Nov. 13, 2025.  https://www.cnn.com/2023/11/13/politics/paul-pelosi-david-depape-trial 

    [vii] Ratification Status for CCPR – International Covenant on Civil and Political Rights https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en 

    [viii] Page 2, paragraphs 1 and 5;  https://www.ipu.org/resources/publications/reports/2025-03/women-in-parliament-1995-2025  

    [ix] Guidelines for the elimination of sexism, harassment and violence against women in parliament; 2019; Inter-Parliamentary Union. https://www.ipu.org/resources/publications/reference/2019-11/guidelines-elimination-sexism-harassment-and-violence-against-women-in-parliament

    [x] Abstract; Inexorable Force or Dying Wave? The long term trends of democratization and the third wave of Autocratization; David Randahl University of Gothenburg, Varieties of Democracy Institute: Working Paper No. 152. March 2025. https://v-dem.net/media/publications/WP_152.pdf 

    [xi] Figure A7. Countries by score on V-Dem’s Liberal Democracy Index (LDI), page 60; Democracy Report 2025, V-Dem Institute.

    [xii] Global State of Democracy Initiative: International IDEA; https://www.idea.int/democracytracker/ Visited November 2025.

    [xiii] Human Rights Council reschedules human rights review of the United States of America; regrets “non-cooperation” with UPR mechanism; 07 November 20205, United Nations Human Rights Council; Geneva;

    https://www.ohchr.org/en/press-releases/2025/11/human-rights-council-reschedules-human-rights-review-united-states-america?sub-site=HRC

    [xiv] Women’s Rights and Democracy are Inextricably Linked; Jennifer Weiss-Wolf; March 16, 2022l https://www.brennancenter.org/our-work/analysis-opinion/womens-rights-and-democracy-are-inextricably-linked

    [xv] DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL; CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19–1392. Argued December 1, 2021—Decided June 24, 2022; https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

    [xvi] Roe v. Wade, 410 U.S. 113 (1973); Argued December 13, 1971; Reargued October 11, 1972; Decided January 22, 1973; https://supreme.justia.com/cases/federal/us/410/113/

    [xvii] Establish criminal offense of abortion trafficking; House Bill No. 609; Montana Legislative Services; HB:609: February 2025 https://bills.legmt.gov/#/laws/bill/2/LC3410?open_tab=bill

    [xviii] Who’s questioning women’s right to vote?; Mariel Padilla, Grace Panetta and Mel Leonor Barclay; AZ Mirror; The 19th, August 12, 2025. https://19thnews.org/2025/08/pete-hegseth-doug-wilson-women-voting/

    [xix] Report on Webinar: Women’s Political Participation in the Digital Age; March 4, 2025.

    https://iknowpolitics.org/sites/default/files/Report%20on%20Webinar%20Women%20in%20Politics%20-%20Digital%20Age.pdf

    [xx] Afghanistan: Taliban ‘may be responsible for gender apartheid’ says rights expert; UN News; 19 June 2023; https://news.un.org/en/story/2023/06/1137847 

    [xxi] The Propagation of Virtue and Vice Law; Islamic Emirate of Afghanistan; Ministry of Justice, Official Gazette; August 2024. https://www.afghanistan-analysts.org/en/wp-content/uploads/sites/2/2024/08/Law-on-Virtue-and-Vice-Basic.pdf

    [xxii] Internet Shutdown In Afghanistan Threatens Women’s Education And Human Rights; Dr. Ewelina U. Ochab , Forbes Magazine; September 21, 2025. https://www.forbes.com/sites/ewelinaochab/2025/09/21/internet-shutdown-in-afghanistan-threatens-womens-education-and-human-rights/ 

    [xxiii] Unveiled: A History of Afghan Women’s Rights; UN Photo;  https://media.un.org/photo/en/photo-essays/unveiled-history-afghan-womens-rights

    [xxiv] FAQs: What it’s like to be a woman in Afghanistan in 2025; UN Women; 7 August 2025; https://www.unwomen.org/en/articles/faqs/faqs-afghanistan Accessed December 25, 2025.

    [xxv] Action for Equality, Development and Peace – Platform for Action; Women in Power and Decision Making  https://www.un.org/womenwatch/daw/beijing/platform/decision.htm 

  • States of Emergency and Habeus Corpus

    States of Emergency and Habeus Corpus

    Innocent Latina woman behind bars in a jail cell, wearing orange, lit from the left with a ray of sunlight

    The balance of power between the Executive, the Legislative and Judiciary is a crucial element of a functioning democracy. However, this balance is no longer certain in the United States in the face of an Executive branch that disrespects Constitutional rights and has proven itself willing to defy Supreme Court orders[i]. Recent political developments in the United States have concerned Americans desperately invoking Constitutional rights and freedoms in acts of resistance. But when domestic law fails to protect human rights, may certain rights and freedoms – guaranteed under international human rights law – be invoked by American citizens and other persons within its jurisdiction? This article will attempt to illuminate this question by examining two interrelated issues – State obligations pertaining to states of emergency and habeus corpus.

    Deployment of the National Guard:

    Since the Trump administration took Office in January of 2025, the President has exercised the right of the Executive to deploy the National Guard first in L.A., then Washington D.C, followed by Chicago, and then Memphis. Deployment of a National Guard is interrelated, though not synonymous with, invoking a state of emergency; the former is typically used as a supporting mechanism to the latter, generally used in emergency domestic crisis situations such as natural disasters, insurrections or civil unrest. Legal experts fear that normalizing the deployment of the National Guard in U.S. cities is testing the limits of presidential power and the use of military force, thereby also testing the resilience of democracy. Declaring a “crime crisis” in cities like Washington D.C. has allowed the President to instate the National Guard there for up to 30 days. Recognizing the temporal limitation, President Trump stated that “if I have a national emergency, I can keep the troops here as long as I want”[ii]. Declaring a national emergency would unlock a set of 120 exceptional statutory powers to the Executive branch, including the authority for the freezing of assets and restricting of telecommunications.[iii]

    States of Emergency:

    Because the invocation of a State of Emergency authorizes such exceptional powers and is ideally used only under threat from foreign powers, it is governed under international law to protect human rights. But invoking a state of national emergency or public emergency is frequently also used by authoritarian Heads of State under false pretexts as justification for breaches of human rights, which is why there are strict requirements – where there is a right of the State there are also obligations.  According to international law these derogations are permissible only to the extent that they are “strictly required by the exigencies of the situation”. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for such obligations.

    ICCPR – Article 4

    1.     In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

    2.     No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

    [For reference, in brief: art. 6 – the right to life; art. 7 – the prohibition of torture; art. 8 para. 1 & 2 – the prohibition of slavery and servitude; art. 11 – prohibition of imprisonment on the grounds of inability to fulfil a contractual obligation; art. 15 – non-retroactivity of criminal laws; art. 16 – recognition as a legal person; art. 18 – freedom of thought, conscience, and religion]

    3.     Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

    The principle of proportionality is common to derogations and their limitations during States of Emergency and is contingent on the exigencies of the situation.

    The United Nations Human Rights Committee, the UN organ responsible for monitoring the ICCPR issued General Comment No. 29 – States of Emergency (2001)[iv], which interprets and clarifies the scope of Art. 4 in depth. Paragraph 16 states that “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”.

    Habeus Corpus:

    Saddened man behind bars in a darkened cell
    AI generated image

    The right to a fair trial, which includes the concept of habeus corpus in the ICCPR (Art. 9 para. 4), is among the most important procedural safeguards in the limitations of derogations as it protects against arbitrary detention.

    Article 9 – ICCPR

    1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

    3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

    4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

    5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

    The Common Law of States of Emergency and Habeus Corpus:

    Given the increasing acceptance of the usage of common law by judicial bodies in the area of human rights, consider the Advisory Opinion on Habeus Corpus in States of Emergency[v] by the American Court of Human Rights in 1987, in which they opined that “… in serious emergency situations it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under normal circumstances, be respected and guaranteed by the State. However, since not all these rights and freedoms may be suspended even temporarily, it is imperative that ‘the judicial guarantees essential for (their) protection’ remain in force.” (ACHR OC-8/87) (my emphasis) In other words, to ensure that non-derogable rights are not restricted, the right to an effective judicial remedy, the right to a fair trial, is imperative.

    The application of the provisions of the International Covenant on Civil and Political Rights, of jus commune is particularly complex in the context of the United States for various reasons, however no State is completely immune from the jus commune of human rights law.

    Ratification of and reservations to the International Covenant on Civil and Political Rights:

    The United States of America ratified the International Covenant on Civil and Political Rights in 1992, although acceded to with several reservations and declarations of understandings. It is notable though that the decision on the validity of a reservation is determined by the UN Human Rights Committee (HRC), and not by the State itself. Upon examining the reservations of various States Parties and in response to excessively broad reservations, such as those by the United States, the Human Rights Committee issued General Comment No. 24 (1994)[vi] to clarify the scope of State’s obligations. Paragraph 7 notes that:

    In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.

    In other terms, reservations that are incompatible with the object and purpose of the Covenant will be considered invalid. Additionally, certain rights and freedoms are non-derogable. In the situation of states of emergency, paragraph 10 states that “…some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category.” And of course, derogations which violate peremptory norms, such as the prohibitions of torture, or arbitrary deprivations of life, would be incompatible with the Convention as well. (Further contributions were made by the International Law Commission’s Guide to Practice on Reservations to Treaties[vii] in 2011)

    Self-executing provisions of the ICCPR:

    Although the U.S. has ratified the ICCPR it has not ratified its Optional Protocol, some of its provisions are self-executing. Article 2 of the ICCPR requires that States give effect to its provisions; failure to do so can invoke the responsibility of the State, specifically provided for in paragraph 2:

    Article 2 – ICCPR

    1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

    2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (“International Covenant on Civil and Political Rights | OHCHR”)

    3. Each State Party to the present Covenant undertakes:

    (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

    (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

    (c) To ensure that the competent authorities shall enforce such remedies when granted.

    The Dualist State:

    It is also notable that the United States is a dualist State, in which international law isn’t directly implemented into a State’s legal system, but instead requires explicit legislation for the adoption and incorporation into the domestic legal order. In contrast, a monist State views domestic and international law as two parts of a unified legal system, allowing for direct applicability of international legal instruments in force for that State. However, failure to implement a legally binding obligation can invoke the responsibility of the State, if successfully challenged.

    Fear of judicial overreach and loss of sovereignty are the two main arguments for maintaining a dualist approach. However, judicial over-reach hardly seems an issue when the balance of power between the executive, the government and the judiciary is undermined as the executive refuses to comply with court orders, and the impartiality of the judiciary is questioned. As for the argument of loss of sovereignty, if ever there was a time to cede a modicum of control to the international legal order, with the benefits potentially far outweighing the risks – this is it.

    Conclusion:

    To answer the question of whether American citizens can invoke international law in response to potential breaches – the obligations and scope of law are typically clarified only when disputes arise and interpreted by a judicial body, such as the United Nations Human Rights Committee or the International Court of Justice (ICJ). However, international law does provide for other non-judicial mechanisms, and they ought to be explored.

    Autocrats rely on lack of knowledge by its citizens on the rules of international law in order to abuse their power. Therefore, familiarity with the laws of international human rights is imperative to the protection of the rights of both citizens and others within the jurisdiction of the State. Regardless of one’s individual opinions on immigration, homelessness or crime, if an administration can ‘legalize’ the right to deprive other people of their right to liberty, then they can deprive you of yours also. And given the statements made by the current United States Executive regarding “invalid” border treaties and “invisible lines” separating Canada and the United States, we should all take this abuse of power very seriously.

    (originally posted August 26, 2025)

    [i] March 15 2025 deportation of alleged Venezuelan gang members despite a temporary restraining order by Chief Judge James E. Boasberg blocking AEA deportations and for any planes already left to return; https://www.aclu.org/trumps-deportation-flights-under-the-alien-enemies-act [accessed August 26, 2025]; Kilmar Abrego Garcia deported on March 15 from the U.S. in breach of a protected legal status; on April 10th the Supreme Court confirmed an earlier order from a Maryland federal court judge and signed an order that “properly requires the Government to ‘facilitate’ Garcia’s release from custody in El Salvador”. https://abcnews.go.com/US/judge-hearing-arguments-deportation-maryland-man-el-salvador/story?id=120491918 [accessed August 26, 2025]

    [ii] At 1:05; NBC News; August 22, 2025 news conference; https://youtu.be/yubwAW8xnuo?si=M-mHKprQWxXHYqqW .

    Sanchez, Ray; As Trump administration unleashes federal show of force in DC, other US cities on president’s radar push back; August 23, 2025; CNN News; https://edition.cnn.com/2025/08/23/us/us-cities-trump-dc-police

    Trump floats circumventing Congress to maintain control of DC police; Giselle Ruhiyyih Ewing; 08/13/2025 https://www.politico.com/news/2025/08/13/trump-dc-police-congress-00507359

    [iii]  https://www.law.cornell.edu/wex/emergency_powers  Accessed Sept. 18, 2025

    [iv] General comment no. 29, States of emergency (article 4): International Covenant on Civil and Political Rights; UN Human Rights Committee; CCPR/C/21/Rev.1/Add.11; Geneva: UN, 31 Aug. 2001; https://digitallibrary.un.org/record/451555?ln=en&v=pdf

    [v] Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), OC-8/87, Inter-American Court of Human Rights (IACrtHR), 30 January 1987, https://www.refworld.org/jurisprudence/caselaw/iacrthr/1987/en/19320https://www.refworld.org/jurisprudence/caselaw/iacrthr/1987/en/19320 [accessed 21 August 2025]

    [vi] UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 4 November 1994, https://www.refworld.org/legal/general/hrc/1994/en/10945 [accessed 21 August 2025]

    [vii]Guide to Practice on Reservations to Treaties; Yearbook of the International Law Commission, 2011, vol. II, Part Two; https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_8_2011.pdf [accessed Aug. 20, 2025]