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The Year in Review

International Legal Developments Year in Review: 2021

Women's Interest Network - International Legal Developments Year in Review: 2021

Julie King, Christine Korper, Abiola O Afolayan, Marie Elena Angulo, Michela Cocchi, Angela Gallerizzo, Dolly Hernandez, Margaret Kamm, Kendra J. Muller, Sierra Paola, Victoria Vanessa Romero Rocha, Aina Serret Trancoso, Sandhya Taneja, and Catherine Elizabeth Van Kampen

Summary

  • This article reviews significant legal and political developments impacting women internationally in 2021.
  • Highlighted areas of interest include right to health, gender-based and sexual violence, sexual harassment and assault, and human trafficking.
  • It also includes upates on international criminal courts and tribunals, as it relates to women's rights.
Women's Interest Network  - International Legal Developments Year in Review: 2021
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This article reviews significant legal and political developments impacting women internationally in 2021. Highlighted areas of interest include right to health, gender-based and sexual violence, sexual harassment and assault, human trafficking, and international criminal courts and tribunals.

I. Legal Empowerment

The COVID-19 pandemic has exacerbated existing inequalities between the sexes, “disproportionately jeopardiz[ing] women’s social and economic capabilities.” When women are given equal opportunity, their participation “strengthen[s] economies and enabl[es] development.” On March 4, 2021, the European Commission set forth a “proposal on pay transparency to ensure that women and men in the European Union get equal pay for equal work.”

A. Women’s Representation in Political Leadership

Regarding women in the public sphere, progression of women’s representation in high-level government positions around the world has slowed. 21.9 percent of ministerial portfolios were held by women compared to 21.3 percent from the year prior, and women’s representation in national parliaments only increased by 0.6 percent. Twenty-two countries had women occupying the role of heads of state or government; however, Europe led the world with respect to women-led countries, having “five out of nine Heads of State and seven out of 13 Heads of Government.” Notably, Belgium’s proportion of women ministers almost doubled from 25 percent to over 57 percent. But despite these overall advances, “the number of countries with no women ministers in 2021 increased to 12, compared to nine in 2020.” While women make up approximately 70 percent of the global health workforce, “women from middle and low-income countries only make up around 5 percent of leaders at global health organizations.”

Denmark, Finland, Iceland, New Zealand, Germany, and Slovakia are led by women heads of state and have been recognized for their proactive responses to the COVID-19 pandemic, “implementing social distancing restrictions early . . . and unifying the country around a comprehensive response with transparent and compassionate communication.” Yvonne Aki-Sawyer, the mayor of Freetown, Sierra Leone, has worked with donors, residents, and the government to provide additional food to people quarantined in informal settlements to “repurpose an under-utilised military training facility space into a care center to support COVID-19 patients who cannot self-isolate.”

B. Legal Equality in Constitutions and Laws

In March 2021, the United Nations Commission on the Status of Women (UNCSW) approved a broad reaffirmation of the Beijing Declaration and Platform for Action in an effort to fulfill the 2030 Agenda for Sustainable Development, “urging governments to implement existing commitments and eliminate laws, policies and regulations that discriminate against women.” The affirmation warns that the “[f]ailure to expedite women’s participation and decision-making in public life and the elimination of violence against women will make it impossible to achieve the Sustainable Development Goals by 2030.” But several delegations voiced concerns during the UNCSW session, with the delegation from Saudi Arabia stating that “[w]e are against anything that goes against our Sharia” and Libya’s representative emphasizing that any action towards the 2030 goals should respect a state’s sovereignty.

1. Right to Economic and Social Equality

The gender gap in economic participation and opportunity, which includes, among other things, gaps in participation, pay, and advancement, globally, increased to 32.3 percent in 2021. Of 153 countries studied, only ninety-eight have improved in gender parity, while fifty-five have regressed. Only 52.6 percent of women between the ages of fifteen and sixty-four are in the labor force, compared to 80 percent of their male counterparts. In the United States, approximately 350,000 women left the workforce in August and September, while 321,000 men reentered the workforce.

Unpaid care and domestic duties continue to be a burden primarily shouldered by women and ignored by governmental policy responses as the COVID-19 pandemic persists. Out of 1,700 social protection and labor market measures, “only 11 percent address unpaid care through provisions such as extended family leaves . . . [and] emergency childcare services for essential workers.” While women in higher wage jobs have had the ability to shift to full-time telework, evidence suggests that working conditions for many women in low-wage jobs have worsened due to an increase in care responsibilities with unchanged expectations from employers.

2. Marriage Rights

In July, the European Court of Human Rights (ECHR) ruled that Russia was in violation of the European Convention on Human Rights by refusing to grant same-sex couples legal recognition. The ECHR stated that it could identify no important government interest that would outweigh the rights of same-sex couples to have their unions legally recognized. On September 26, 2021, Switzerland voted by public referenda to make same-sex marriage and the right to adopt by same-sex couples legal. In March 2021, the Sapporo District Court of Japan issued the nation’s first-ever ruling on marriage equality, declaring that the government’s ban on same-sex marriage was unconstitutional, noting that sexual orientation cannot be chosen or changed, and concluding that legal benefits denied to same-sex couples was unreasonably discriminatory. On June 16, 2021, Baja California and the Congress of Sinaloa legalized same-sex marriage, and, shortly thereafter, in August, the Congress of Yucatan voted in favor of marriage equality, joining twenty-one other Mexico states who have legalized same-sex marriage.

In January 2021, President Luis Abinader of the Dominican Republic signed into law a bill that bans child marriage for anyone under the age of eighteen. In the United States, Rhode Island and New York became the fifth and sixth states, respectively, to ban child marriage without exception, raising the age of consent to eighteen years old. Meanwhile, North Carolina passed a bill raising the age of consent to marriage from fourteen to sixteen years old.

3. Right to Health

On September 1, 2021, Texas passed the most restrictive abortion law in the United States, which limits abortions to the first six weeks of pregnancy and “gives any person the right to sue doctors who perform” abortions past this period.

On January 28, 2021, a ruling by Poland’s Constitutional Tribunal came into effect, which held that abortions in cases of fetal abnormalities are unconstitutional.

In a landmark ruling in September 2021, Mexico’s Supreme Court ruled that the criminalization of abortion was unconstitutional. In October, India’s Parliament amended its Medical Termination of Pregnancy Act of 1971 to increase the upper gestation limits for certain permissible abortions and extend abortion services to unmarried women who experience contraceptive failure. Iran’s President enacted a law in November, which “bars public health-care providers from offering free contraception, prohibits voluntary sterilization, and offers more benefits to childbearing families.” In September, the French Health Minister announced that the government would begin giving out free contraceptives to women up to the age of twenty-five and covering medical visits relating to contraception.

In the United States, the STOP FGM Act of 2020 was signed into law on January 5, 2021, which gives federal authorities the power to prosecute individuals engaged in, or conspiring to engage in, female genital mutilation (FGM) and raises the maximum penalty from five years to ten years of imprisonment. On March 15, 2021, Tanzania instituted a national strategy to eliminate FGM, which includes national health campaigns and new legal enforcement mechanisms. In April, Egypt enhanced its criminal penalties for FGM, raising the maximum prison sentence to twenty years. Additionally, the Kenyan High Court upheld the nation’s ban on FGM in its ruling on a petition that claimed that the ban was unconstitutional, stating that “FGM cannot be rendered lawful because the person on whom the act was performed consented . . . [n]o person can license another to perform a crime.”

II. Gender-Based and Sexual Violence, Sexual Harassment, and Assault

Gender-based violence is one of the most pervasive human rights violations, capturing both physical, sexual, mental, or economic harm as a result of one’s biological sex or gender identity. Approximately one in three women are subjected to physical or sexual intimate partner violence, or non-partner sexual violence, at least once in their lifetime. A “shadow pandemic” of violence against women and girls has taken place during the COVID-19 pandemic, with increased violence being reported. Continued lockdowns and support service disruptions have further impacted women’s safety from violence.

A. Sexual Harassment

1. Domestic Sexual Harassment Laws

Two new laws went into effect in Texas on September 1, 2021, which “lower the statute of limitations for filing sexual harassment charges, expand who can file suits, and broaden liability to individual managers.” Under the new laws, the time period for filing a complaint is almost doubled, permitting employees up to 300 days after the alleged misconduct took place to file a claim for sexual harassment. Further, employees may now bring sexual harassment claims for both the conduct itself and “for an employer’s failure to take immediate corrective action.”

2. Regional and International Sexual Harassment Laws

The Violence and Harassment Convention (Convention No. 190), which is the first international treaty recognizing “the right of everyone to a world of work free from violence and harassment,” came into force on June 25, 2021, two years after it was adopted by the International Labour Organization (ILO). It provides “the first international definition of violence and harassment in the world of work, including gender-based violence and harassment,” and has been ratified by nine countries.

B. Elimination of Violence Against Women

This year marks the ten-year anniversary of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), a human rights treaty aimed to promote women’s safety. In September, the Members of European Parliament (MEPs) adopted a legislative initiative “demanding targeted legislation and policies to address all forms of violence and discrimination based on gender” and advocated for “gender-based violence” to be listed as a crime under Article 83 of the Treaty on the Functioning of the European Union.

1. Domestic Violence as a Criminal Offense

In January 2021, Iran’s Council of Ministers approved the Protection, Dignity and Security of Women against Violence bill, which defines violence as “any behavior that is committed against a woman due to her gender or vulnerable position or type of relationship and causes harm or damage to her body or mind or personality, dignity or restriction or deprivation of her legal rights and freedoms.” The bill, among other mandates, creates an obligation on the judiciary to allocate resources towards survivors of domestic violence and requires an increase in medical and psychological services for survivors.

On July 28, 2021, Law No. 14, 188 came into effect in Brazil, amending Brazil’s Penal Code to include “a penal classification for psychological violence against women,” which is punishable by up to two years in prison, and a punishment of up to four years’ imprisonment for bodily harm “committed against women merely because of their gender.”

2. Online Abuse and Violence

In 2021, online harassment created barriers for women, including women lawyers, politicians, and activists. A study of online violence directed at political candidates in Uganda during the January 2021 election showed that women candidates experienced online violence, including sexual harassment, trolling, gendered disinformation, and gendered insults. In Libya, Lawyers for Justice released a report detailing that extensive online abuse is endured by Libyan women and goes unchecked by authorities, thus forcing women out of public spheres due to silencing and intimidation.

In May 2021, the United Kingdom presented its Online Safety Bill. The bill imposes a duty of care on online platforms to protect their users from “illegal and otherwise harmful content online” and on social media providers to ensure adequate reporting of abusive material and to conduct regular risk assessments of illegal content; however, the bill is silent on gendered disinformation, running the risk that “it is by no means clear what, and whose speech is considered protected under the Bill.”

3. Regional Instruments and Guidelines

In Latin America, the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém do Pará Convention) is the principal treaty for tackling harassment and other forms of violence against women. The Belém do Pará Convention has been ratified by all the Member States to the Organization of American States (OAS), with the exception of Canada, Cuba, and the United States. Under the Belém do Pará Convention, the Follow-up Mechanism to the Belém do Pará Convention (MESECVI) monitors the implementation of the treaty by its parties. MESECVI formally began the Fourth Multilateral Evaluation Round in 2021, which emphasized the right to access to justice for women in the region from a gender and diversity perspective. In 2021, MESECVI continued to monitor the consequences of the COVID-19 pandemic and the measures to mitigate the pandemic on the lives of women and girls in the region and to develop a strategy to deepen MESECVI’s work in the English-speaking Caribbean countries and Haiti.

In Europe, the 2011 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) is the principal instrument for addressing violence against women. May 11, 2021, marked ten years from the date that the Istanbul Convention was opened for signature. As of November 2021, the European Union and twelve member states of the Council of Europe have signed the Istanbul Convention, and thirty-four have ratified it. In March 2021, Turkey, one of the Istanbul Convention’s first signatories, notified its withdrawal from the Istanbul Convention, which took effect on July 1, 2021. In June 2021, Liechtenstein ratified the Convention. Under the Istanbul Convention, the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) monitors the implementation of the treaty by its parties.

In Southeast Asia, the Association of Southeast Asian Nations (ASEAN) Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) held its twenty-third meeting virtually in October with representatives from all ten member states. The meeting focused on harnessing the efforts of ASEAN to promote and protect the rights of women and children during the COVID-19 recovery process and the development of the new ACWC Work Plan 2021-2025 as a living blueprint to drive ASEAN to develop regional policy actions that improve the lives of women and children in ASEAN.

III. Human Trafficking

Despite vaccine rollouts and resumption of normal activities in many regions, the effects of the COVID-19 pandemic increased the number of people vulnerable to human trafficking, especially women and girls, who were often trafficked domestically through local and online recruitment and exploitation in 2021. Migrant status, ethnicity, disability, socio-economic status, and other factors exacerbated circumstances for trafficking victims. Stay-at-home orders and travel restrictions increased rates of gender-based violence and substance abuse, raising risk factors for human trafficking. Governments diverted resources away from anti-trafficking efforts toward the pandemic response; investigations, prosecutions, and adjudications were suspended or postponed. Many relief organizations were unable to respond to reports due to reduced funding and COVID-19 mitigation efforts. Business closures drove trafficking activities even further underground; operations moved out of bars, massage parlors, and brothels and into private dwellings. Public reporting of suspected trafficking crimes decreased in many regions, impeding the ability to rescue victims and bring traffickers to justice.

Child sexual exploitation—especially online—and child marriage also increased in some regions due to school closures, reduced parental supervision, and economic hardship. Rising rates of extreme poverty increased risks for the most vulnerable; it is estimated that half of the trafficked victims in poorer countries were children, and most were forced into labor. Racist stereotyping and discrimination against child victims led to failed responses by governmental agencies and private-sector actors. Case studies showed that migrant and displaced women and children were especially at risk for sexual and domestic work trafficking due to debt bonding. Climate change was revealed as a “stress multiplier” to human trafficking. Climate displacement and climate migration increased risks of sex trafficking, labor trafficking, and trafficking-related violence against women and girls during and after extreme weather events.

Out of 40.3 million people estimated to be “living in modern slavery,” roughly 71 percent were women and girls, who were mostly trafficked “for the purpose of sexual exploitation.” But due to the underground nature of human trafficking, actual figures are thought to have far exceeded reported violations. Data from the United Nations Office on Drugs and Crime (UNODC) estimates that 75 percent of detected trafficked victims are women and girls. Throughout the pandemic, a lack of data created challenges to effective assessments and anti-trafficking efforts.

A. International Efforts to Combat Human Trafficking

As traffickers adapted to the “new normal,” anti-trafficking forces attempted to keep pace. International organizations led the efforts to assess the impact of COVID-19 on anti-trafficking efforts and provided recommendations on how to best adapt policy and utilize funds. Civil society organizations cooperated and consolidated resources. Victim service providers shifted to online platforms to provide support, such as legal aid, counseling services, food, and hygiene products. Nevertheless, as a result of the pandemic, anti-trafficking efforts fell short: “victims went unidentified, survivors were underserved, and traffickers were not held accountable.”

In July 2021, the UNDOC released a new study, The Effects of the Covid-19 Pandemic on Trafficking in Persons and Responses to the Challenges. The report seeks to examine the impacts on trafficked populations, how victims of trafficking were affected, and the challenges faced by anti-trafficking forces throughout the pandemic to learn from the past and develop strategies to improve future responses that will “leav[e] no one behind.”

In February, the UNODC and the European Union, within the framework of the Global Action against Trafficking in Persons and the Smuggling of Migrants (GLO.ACT) and in partnership with the International Organization for Migration (IOM), jointly published the Toolkit for Mainstreaming Human Rights and Gender Equality into Criminal Justice Interventions to Address Trafficking in Persons and Smuggling of Migrants (UNODC Toolkit). The UNODC Toolkit seeks to incorporate human rights and gender equality considerations into all aspects of addressing human trafficking and migrant smuggling for UNODC staff, criminal justice experts, and those working within its GLO.ACT partner countries. The UNODC Toolkit has been made publicly available to assist outside practitioners, entities, and other stakeholders working to prevent and respond to human trafficking.

In October 2021, the UNODC issued a new publication, The Concept of ‘Harbouring’ in the Trafficking in Persons Protocol. The paper determines that the concept of harboring has been understood differently from country to country due to its varying interpretations and translations in different language versions in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (UN TIP Protocol), where the term is defined. The paper seeks to clarify legal uncertainties and enhance understanding of the concept of harboring as a criminal act, thereby increasing its effectiveness as a tool for law enforcement, prosecutors, and courts in bringing traffickers to justice and protecting victims. As of 2021, there are 117 signatories and 178 states party to the UN TIP Protocol.

B. Regional and Transregional Efforts to Combat Human Trafficking

1. North America

On July 30, 2021, World Day against Trafficking in Persons, the U.S. Department of Homeland Security (DHS) issued a new Continued Presence Resource Guide to aid law enforcement agencies at all levels in combating human trafficking through victim and witness support. Continued Presence is a two-year, renewable immigration status afforded to noncitizen victims of human trafficking or witnesses to investigations and allows recipients to apply for certain benefits and seek justice against their traffickers while remaining in the United States. DHS also released a fact sheet to assist victims and witnesses in the business community in reporting forced labor and other crimes occurring in China. The fact sheet provides a warning to those engaging in business in China to comply with U.S. laws or face federal prosecution for forced labor practices in their supply chains.

In November, the UNODC and Canada’s Anti-Crime Capacity Building Program (ACCBP) announced the creation of the Strengthening Transregional Action and Responses Against the Smuggling of Immigrants (STARSOM), a new two-year initiative created to disrupt transcontinental migrant smuggling to North America by supporting states along the smuggling routes. The project seeks to shift the focus of authorities away from the criminalization of vulnerable migrants escaping extreme poverty, natural disasters, war zones, or persecution to ensure that smuggled migrants are treated fairly and humanely using a gender-responsive approach and to target the organized criminal enterprises that abuse and exploit migrant people and expose them to human trafficking. While migrant smuggling and human trafficking are distinctly different crimes, smuggled migrants are at heightened risk of human trafficking.

2. Europe

In January 2021, the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) launched the International Survivors of Trafficking Advisory Council (ISTAC). ISTAC consists of twenty-one of the leading survivors of human trafficking from around the world. The initiative acknowledges the role of survivors in all aspects of combatting human trafficking.

In April, the European Commission adopted the EU Strategy on Combatting Trafficking in Human Beings, to be implemented in the period from 2021 to 2025. It provides for a comprehensive plan to end modern slavery: “from preventing the crime, and protecting and empowering victims to bringing traffickers to justice.” The EU Strategy on Combatting Trafficking in Human Beings was developed in connection with the EU Strategy to Tackle Organised Crime (2021-2025) and builds on the EU Anti-Trafficking Directive of 2011. The Strategy focuses on reducing demand for trafficking in value chains, collecting data on criminal business models, and targeting organized crime groups that exploit victims. Additionally, it focuses on tackling the “culture of impunity” by ramping up the criminal justice response to trafficking activities, including acting against online operations; protecting, supporting, and empowering trafficking victims, especially women and children; and increasing international collaboration.

IV. Women, Peace, and Security

The United Nations Security Council’s landmark Resolution 1325 highlights the important role women play in conflict resolution, peacekeeping, and peacebuilding. In July 2021, more than twenty years after the adoption of Resolution 1325, over one hundred governments, academic institutions, United Nations entities, organizations, and private sector groups signed the Compact on Women, Peace and Security and Humanitarian Action (the Security Compact). The Security Compact was created as part of a “five-year push for gender equality” and plans to reshape security, peace, and humanitarian action processes to “systematically include women and girls in the decisions that impact their lives.” Signatories to the Security Compact have pledged “to take concrete action on existing commitments for women and girls,” including meaningful participation in peace processes, protection of women’s rights in conflict and crisis, and “increased financing for Women, Peace and Security and gender equality in humanitarian programming.”

In August, in response to the Taliban’s seizure of power in Afghanistan, the United Nations Security Council adopted Resolution 2593, which urges all parties “to seek an inclusive, negotiated political settlement, with the full, equal and meaningful participation of women.”

V. International Criminal Courts and Tribunals and Women’s Rights Cases

A. International Criminal Court

On February 4, 2021, the International Criminal Court (ICC) found Dominic Ongwen guilty on charges of rape, sexual slavery, forced marriage, and forced pregnancy as crimes against humanity and war crimes, marking the “the first time that forced marriage, charged as ‘another inhumane act’ constituting a crime against humanity, was prosecuted before the ICC” and “the first time that the crime of forced pregnancy was prosecuted before an international court.” The ICC’s interpretation of forced pregnancy “builds international jurisprudence on reproductive violence, in other words, violations of a person’s reproductive health, autonomy, and rights.”

B. Inter-American Court of Human Rights

On November 30, 2021, the Inter-American Court of Human Rights issued a ruling ordering El Salvador to “reform its legal and health care policies that criminalize women for seeking reproductive health care.” This marks the first time an international court has evaluated and ruled on El Salvador’s extreme abortion laws, which criminalize abortion under any circumstance, and “established for the first time in the region that health staff can no longer refer women to law enforcement who come to the hospital seeking reproductive health care, including abortion.”

Julie King and Christine Korper served as co-editors and contributing authors. The views expressed are attributed to the authors individually and do not represent the views of their respective organizations.

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