The Codification of Femicide in Argentina and Latin America

ni-una-menos

Photo Credit: Sofía González

By: Dina Ljekperic

In May 2015, 14-year-old Chiara Paez was murdered by her 16-year-old boyfriend. Pregnant at the time, she was found buried in the garden of his home in Argentina, in the province of Santa Fe. Thousands of Argentine women responded in protest, fed up with the ever-increasing murder of women and girls. Close to 300,000 women gathered in Buenos Aires on June 3, 2015 and shouted “Ni una menos” (not one less), demanding that not one more woman be lost to gender-based violence in Argentina. The Ni Una Menos movement spread across Latin America, with anti-gender-based violence protests erupting in nearly every country.

Official statistics are absent, but it has been estimated that a female is killed In Argentina every 30 hours.

Gender-Based Killings in Latin America

While gender-based violence is by no means unique to Latin America, more than half of the countries with high female murder rates are in the Americas, with El Salvador topping the list. Throughout the region, the killing of women and girls has increased at an alarming rate compared to men and boys.

The UN describes several factors that leave women more vulnerable to violence in the region: discrimination, poverty, fragile states and institutions, organized crime, narcotraffic, and militarized post-conflict situations.

Argentine activists, along with activists across Latin America, also point to the prevailing “machista” culture, drawing a link between the everyday accepted acts of sexism and harassment to the prevalence of gender-based murder. Continue reading The Codification of Femicide in Argentina and Latin America

Toward a New UN Convention on the Rights of Older Persons?

By: Marijke De Pauw|

Population ageing constitutes one of the most significant demographic transformations of the twenty-first century and it is taking place at an unseen pace. Recent projections by the United Nations (UN) Department of Economic and Social Affairs show that by 2050, the global number of persons aged 60 years or over will more than double, from 841 million older persons in 2013 to more than 2 billion in 2050. On the one hand, an ageing population is undoubtedly a positive development, as it evinces increased longevity caused by medical advances and better living conditions. On the other hand, however, it is also raises significant challenges for the near future. The number of working-age adults per older persons – or “old-age support ratio” – will decrease significantly and is expected to have a serious impact on social security and health care systems worldwide. Considering their socio-economic consequences, population dynamics have since long been part of the international development agenda. Demographic changes were discussed extensively at the UN World Population Conferences and have been addressed by several instruments, such as the Programme of Action adopted at the International Conference on Population and Development in 1994.

An international human rights approach to ageing

The enormous increase in the number of older persons expected worldwide has also raised the question of how to ensure the well being of the elderly population. Over the last decades, the challenges facing older persons have become an important issue on the agenda of academics, NGOs, governments, and regional and international organizations. More so, it has developed into a global human rights movement advocating for a more effective human rights framework for older persons. In 1982, the first international instrument focusing specifically on the particular concerns and needs of the elderly population was adopted at the first World Assembly on Ageing; the Vienna International Plan of Action on Ageing. The Plan confirmed the full and undiminished application of the rights enshrined in the Universal Declaration of Human Rights to older persons. Since then, the UN has adopted a number of instruments focused on the elderly population, including the 1991 UN Principles for Older Persons, the 1992 Proclamation on Ageing, and the 2002 Madrid International Plan of Action on Ageing (MIPAA). MPIAA was adopted to respond to opportunities and challenges of population ageing in the twenty-first century and to further promote a society for all ages. It provides a large number of recommendations to member states, covering a very wide area of topics relating to the ageing population, including employment and participation in society, access to health-care, provision of enabling and supportive living environments, and the prevention of elder abuse. The outcome of the second review and appraisal of the MIPAA, however, showed that its implementation by member states has remained quite limited. Although the review noted overall progress in the implementation of MIPAA, it nonetheless noted significant gaps between policy and practice deriving from insufficient human and financial resources of member states.

UN Open-Ended Working Group on Ageing

In 2010, the UN Open-Ended Working Group on Ageing (OEWGA) was established with the task of assessing the existing international framework of the human rights of older persons, identifying possible gaps, and determining how best address the gaps. This included considering, as appropriate, the feasibility of further instruments and measures. It has since then concluded five working sessions, during which member states, UN representatives and civil society participated in panels and debates on the human rights situation of the elderly population. Several proposals were made, including the drafting of a new international binding instrument: a UN Convention on the Rights of Older Persons. Although there has been quite some disagreement on the need for such a convention, there was a consensus early on regarding the advantages of establishing a new special human rights mandate. Consequently, the Human Rights Council decided to appoint a UN Independent Expert on the enjoyment of all human rights by older persons for a term of three years. In May 2014, Ms. Rosa Kornfeld-Matte was appointed to take up the new mandate, which consists of assessing the implementation of existing international instruments, identifying best practices, raising awareness regarding the challenges older persons face in the enjoyment of their rights, and working with states to foster implementation of measures that contribute to the promotion and protection of older persons’ rights.

In 2012, the OEWGA’s mandate was altered by the General Assembly, which explicitly requested that OEWGA begin considering proposals for a new international legal instrument. The General Assembly requested that OWEGA present a proposal of the new instrument that contains the main elements that should be included therein. This is surprising considering the lack of agreement on the need for such a new convention. A large number of states, including the United States and a majority of the European Union countries, are still in favor of increasing efforts to implement the MIPAA and to mainstream older persons’ rights into existing monitoring mechanisms, such as the UN treaty bodies and the Universal Periodic Review. At the same time, the call for a new convention is gaining support from an increasing number of NGOs, UN agencies, and Latin American and African countries in particular.

The Pros and Cons of new UN Convention

The drafting of a new UN Convention on the Rights of Older Persons definitely raises a number of questions, and important arguments can be made both in favor and against such a measure. Those who argue in favor of a new UN convention on this issue frequently argue that there is a significant normative gap regarding older persons within the existing international human rights law framework. For example, age-based discrimination is rarely mentioned explicitly in the list of prohibited discrimination grounds, thus potentially rendering older persons invisible as a group with specific needs. Furthermore, the norms applicable to older persons are scattered over a large number of human rights treaties, rather than consolidated into one single binding instrument. If comprehensive treaties have been adopted for various other groups, most recently the UN Convention on the Rights of Persons with Disabilities, shouldn’t one exist for the elderly? It is also true that, contrary to the existing soft law norms enshrined in the MIPAA and UN Principles for Older Persons, a convention would create legally binding obligations for states parties. They would also be required to submit periodic reports to a treaty body, which would also receive individual communications regarding violations of the Convention. In other words, it would not only clarify the rights of older persons, but also create a system of state accountability, reporting, and data collection. Importantly, an international convention would be a useful human rights advocacy tool by raising awareness about the human rights of this particular group and making older person more visible as rights holders.

On the other hand, the entirety of existing human rights norms and standards is applicable to the elderly population. They are entitled to all the rights enshrined in the core human rights treaties. The main problem may therefore be an implementation gap, rather than a normative one. If more specific international guidance is required as regards their rights, it may be argued that a universal treaty is instead likely be drafted in broad and vague terms, potentially leading to a watered-down political compromise. Soft norms, such as the MIPAA are able to be as specific as they are because states are more likely to express their commitment due to the non-binding nature of MIPAA. In addition, regional norms and standards might be able to better take into account the specific social and cultural aspects that shape the ageing experience within a specific region. It should also be noted that treaty negotiations are a costly and time-consuming process, whereas the situation of the elderly population is an urgent issue that requires urgent measures. And even if a new Convention on the Rights of Older Persons were to be drafted, there is of course no guarantee of the number of states that will sign and ratify it. It is also difficult to anticipate the number of treaty reservations states may make and their effect on the implementation of the treaty and its objectives. Moreover, it can be argued that the identification of older persons as a vulnerable group in need of additional human rights protection holds the risk of reinforcing ageist stereotypes.

Conclusion

The debate on the need for a new UN Convention is most definitely a complicated one; valuable arguments can be made both in favor and against, making it very difficult for the OEWGA to find consensus and to move forward in its attempts to strengthen the human rights framework for the elderly population. If anything, however, the continuing discussions have drawn much needed attention to the many human rights violations that older persons are faced with worldwide, including age discrimination, elder abuse, and lack of adequate health care. The various expert opinions and studies in support of the OEWGA’s work have been crucial in identifying and recognizing these different obstacles. At the end of the fifth session, there is indeed no longer any discussion among member states regarding the need to address the issue in an urgent manner. That in itself can be considered a valuable contribution of the OEWGA. In addition, the work of the newly created position of Independent Expert is likely to shed more light on the different gaps within the existing framework and will thus provide an important contribution to the debate. In the meantime, it remains crucial that all options are fully explored and utilized, such as the mainstreaming of older persons in existing human rights frameworks and mechanisms, and that all actors involved continue to promote the full enjoyment by older persons of their fundamental rights.

A Tale of Two Continents: GMO Regulations in the United States and the European Union

By: Martin Meeus |

On February 18, 2015, the European Parliament enacted a law enabling Member States to ban Genetically Modified Organisms (GMOs) even if their use was approved at the European Union (EU) level. This new opt-out mechanism allows Member States to prevent the cultivation of GMOs on their territory, not only for health and consumer protection purposes, but also on socio-economic or public policy grounds. However, this new directive leaves many questions unanswered and seems contrary to World Trade Organization (WTO) rules. On the other side of the Atlantic, the battle rages on in the United States as to whether GMOs must be labeled or not. While the states of Vermont, Maine, and Rhode Island enacted GMOs labeling laws, ballots in the states of California, Colorado, and Oregon have been defeated. Recognizing that this issue had become controversial, Congress decided to get involved. The biotech industry supports a law that would prevent States from adopting their own GMOs labeling rules. This act, also known as the DARK (Denying American the Right to Know) Act by its critics, counters the Genetically Engineered Food Right to Know Act that tries to compel GMO producers to label their products. These developments create the necessity to analyze the diverse approaches adopted both in the EU and in the United States regarding GMO cultivation.

The biotech industry often faces difficult questions regarding ethics and social responsibilities. The creation and development of new products often requires investments of dozens if not hundreds of millions of dollars. A ban on the commercialization of these products can result in substantive financial losses for biotech companies. In addition, US and EU decisions to commercialize or ban GMO goods have consequences beyond their respective domestic markets. In fact, the position of these two leading actors have a large influence on the world, particularly on countries that are not able to finance complete impact studies or that have strong ties with either the EU or the United States. This is particularly true for GMOs, and the basic principles governing GMO regulations both in the United States and the EU are significantly different. Though the cautious European approach seems more responsible than the highly permissive US approach, the former has strong economically-adverse effects.

Precautionary Principle vs. Substantial Equivalence Principle

GMOs alter the building blocks of life itself through DNA adjustments. Because many citizens and scientists believe that they are a potential threat for consumers and for the environment, it has become a matter of public concern. For this reason, governments have played an important role in the GMO industry by regulating sales and commercialization. Regulations and governmental approaches towards GMOs are very different globally, in particular between the United States and the EU. The former bases its regulations on the “substantial equivalence principle” while the later bases its regulations on the “precautionary principle.” While the European cautionary approach seems to be a more suitable solution to protect consumers and the environment, it is not ideal from an economic standpoint.

EU’s regulations are strict, have a broad scope, and are based on the precautionary principle. This principle states that when a product may cause severe or irreversible damages, it should be prohibited. According to the EU, the precautionary principle “enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment.” The principle may “be used to stop distribution or order withdrawal from the market of products likely to be hazardous.” When in doubt, the principle directs EU countries to ban the product. This principle, and the stringent regulations it entails, are driven by the historical and general skepticism regarding the manipulation of living organisms in Europe. However, the precautionary principle has not led the EU to ban all GMOs from Europe. The European Commission established a set of rules specific to GMOs, banning some of them, authorizing others and, most importantly, organizing an opt-out mechanisms for Member States that want to stay GMO-free.

The situation is significantly different in the United States, where the “substantial equivalence” principle prevails. According to this principle, when a new product contains similar quantities of basic components as a product already existing on the market, the products are considered substantially equivalent. Consequently, when genetically modified products are considered as substantially equivalent to non-genetically modified products by the US Food and Drug Administration (FDA) or the US Department of Agriculture (USDA), new GMOs do not require any further test from regulatory agencies when entering the US market.

Is the Precautionary Principle a Suitable Solution?

The US GMO approval approach is highly criticized and lacks credibility for several reasons. First, this substantial equivalence principle was adopted by the George Bush Sr. Administration during his deregulation years in order to stay at the forefront of the biotech industry. Further, the author of the regulation for the FDA was Michael Taylor, who was one of Monsanto’s primary lawyers at the time. Monsanto, a US multinational corporation, is the largest GMO producer in the world. It has developed and often commercialized many controversial and dangerous products, including Agent Orange. Monsanto is also known for using the “revolving door” technique extensively by attracting FDA and Environmental Protection Agency (EPA) personnel with competitive salaries while sending a significant number of Monsanto personnel to these agencies. Dozens of individuals are involved in this “revolving door” process. Finally, several studies demonstrated that GMOs and non-GMOs could not be considered equivalent because the metabolism, biochemistry, and chemical composition of the organisms are altered. It is indeed difficult to believe that two organisms are equivalent when their DNA, and thus the very heart of these organisms, has been modified. Despite its well-documented questionable foundation, the principle of substantial equivalence is still in force more than twenty-five years later. The US principle regarding GMOs seems to be politically-driven rather than scientifically-driven and therefore potentially harmful in terms of social responsibilities.

As for the precautionary principle, it is considered by the European Commission as a “central plank of Community policy” and it is appealing to most European citizens who are concerned about the spread of health and environmental dangers through globalization and free trade. This more cautious European approach seems to favor consumer health as well as the environment. However, the precautionary approach presents significant disadvantages and raises some important issues, as well. First, it led the European Commission to provide an opt-out mechanism for EU Member States. These States can invoke socio-economical reasons for opting out, such as town and country planning requirements. This could potentially be misused by EU Member States, in particular for economic protectionist purposes. This would be the case if a country invokes socio-economical reasons in order to prevent foreign products from entering its market and favoring its own products. This threat of protectionism can only be overcome by the elaboration of a clearer and more defined policy from the EU. Since the precautionary principle is not defined in any European legal document, it does not satisfy the WTO minimum requirements and consequently creates a triple standard at the national, European, and international levels. Additionally, it leaves the door wide open for multinational companies like Monsanto to pressure the US government to use these legal weaknesses to challenge EU Member States’ bans before the WTO. These multinationals can also challenge European bans in front of arbitral tribunals if the Transatlantic Trade and Investment Partnership (TTIP) is finalized.

Despite the EU’s cautiousness towards GMOs, the European Food Safety Authority (EFSA), the European regulatory body in charge of food safety, tends to consider that GMOs do not present any threat for consumers. Yet, the European Parliament has often disregarded the EFSA’s advice and applied the precautionary approach. American and European citizens have very different attitudes towards their regulatory agencies. European regulatory agencies experienced a series of regulatory failures that American agencies have not. Moreover, the lack of credibility of European agencies is directly linked to the lack of credibility of the EU itself. This ever-changing supranational body is going through an important legitimacy and identity crisis that may explain consumers’ disregard for the advice of European regulatory agencies.

The European prudence towards GMOs also impacts technological development and the European biotech industry. There are very few state aids and subsidies available to fund innovation in the biotechnology sector even though it is considered by some as a promising means to address world hunger amidst a growing population. Moreover, there has been no approval for any new major biotech product in Europe since 1998. The process is stagnant and this is partly the reason why, in October 2014, 14,000 biotech companies were registered in the United States compared to only 2,083 in Europe of which approximately 1,400 are based in the United Kingdom.

A significant proof of the desperate situation for biotech crops in Europe is the recent decision from the usually tireless Monsanto to stop lobbying the European Commission regarding the commercialization of new genetically modified seeds in Europe. Monsanto has “withdrawn all application for cultivation of new biotech crops in Europe”, and has “no plans to submit any new ones anytime soon”. Three other companies had pending GMO approvals before the EFSA. BASF, the German chemical company, also decided to withdraw from the EU GMO market. DuPont Pioneer, an Iowa based firm, and Syngenta, a Swiss firm, decided to pursue their applications but expressed great concerns about their future in Europe. The lack of sufficient funding for biotech research and the related brain drain may be highly damaging for the EU. If further long-term studies prove that GMOs are harmless to people, Europe will have lost an enormous amount of talent, time, and scientific progress.

Finally, if the European approach appears to be beneficial to solve some important social, human, and environmental issues, it has other negative aspects. These adverse effects, such as the triple standards, the brain drain, or the lack of subsidies are mainly economic. GMOs currently appear to be harmless for consumers but after longer period of time, the harms that it can cause are uncertain, especially considering the increasing number of genetically modified seed planted each year. Further, GMOs allow the indiscriminate use of powerful herbicides leading to the apparition of “super-weeds” and “super-bugs”, resistant to all sorts of herbicides. The effect of these herbicides on human health is disputed but much more concerning. Since the guinea pigs are humans in this case, a more cautious and responsible approach is probably recommendable. In the end, given the uncertain effects of GMOs, it is impossible to determine whether the US or European approach is the most appropriate. What is clear though is that consumers have at least the right to know what ingredients are contained in the food they purchase. Public authorities should impose an obligation on producers to be completely transparent in order for individuals to be able to make a conscious choice.

Martin Meeus is an L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.