For most women’s rights advocates, the answer is obvious: adopt a human rights framework. At the global level this means using the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). While CEDAW has been subject to many ...
For most women’s rights advocates, the answer is obvious: adopt a human rights framework. At the global level this means using the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by 189 countries, which requires all states parties to themselves respect gender equality, protect against gender discrimination by others, and fulfill those human rights needs (e.g., right to adequate housing) that stand in the way. Women’s Property Rights Under CEDAW addresses those parts of CEDAW that protect, inter alia, women’s equal rights to access land, financial credit, social benefits, inheritance, and all forms of family property. While CEDAW has been subject to many critiques, my co-authored book defends it against criticisms that it privileges the experiences of Western women, fails to address salient issues (such as violence as discrimination), or marginalizes women’s rights. The book also rejects concerns that the CEDAW Committee’s property jurisprudence advances a “neo-liberal” agenda in favor of commodification, privatization, business deregulation, and economic globalization. The Committee’s outputs demonstrate how the Convention has evolved to incorporate domestic violence and nuanced positions on the male/female “binary,” the public/private divide, and the nature and causes of discrimination, subordination, and marginalization. There is a reason that CEDAW is specifically cited as a justification for progressive new laws around the world as well as in hundreds of national judicial opinions that use the treaty or the Committee’s jurisprudence to interpret existing laws and even national constitutions.
Nonetheless, the limitations that CEDAW shares with other global human rights institutions—from UN bureaucratic and fiscal constraints to a weak “managerial” approach to securing state compliance increasingly manipulated by rights-disrespecting states—encourages those seeking gender justice to seek alternatives or complements. The UN’s Development Agenda—specifically Sustainable Development Goal (SDG) 5 to “achieve gender equality and empower all women and girls”—is one of them. Whereas CEDAW relies on a legal binding treaty under which states are obligated to implement at the national level equal rights of women, the SDGs’ 17 pledges are a political, aspirational effort, originating in hortatory General Assembly resolutions. They reflect a results-oriented model for international development for all—and not merely developing states—that set specific policy priorities, help steer action and resources, and use bench-marking backed by data. States’ progress towards achieving gender equality under SDG 5 is measured by nine targets and 14 indicators. This includes, under target 5.1 (to “end all forms of discrimination against all women and girls everywhere”), progress towards achieving indicator 5.1.1 which calls for the adoption of “legal frameworks . . . to promote, enforce, and monitor equality and non-discrimination on the basis of sex.” SDG targets and indicators, subject to periodic review since the SDGs were originally adopted in 2015, are intended to inspire new development thinking. While the SDGs have been criticized for lacking references to human rights, that might be the point.
For governments now caught in bottom-up populist or top-down authoritarian backlashes against human rights, the SDGs offer an appeal not to abstract dignitarian values but to the need to tackle structural obstacles like poverty, hunger, and gender inequality because these hinder economic growth. The SDGs appeal not only to “rule of law” states long accustomed to rights discourse at the domestic and international levels, but to governments—nearly all of them—that want to attract international financial institutions and market actors. They may particularly appeal to governments leery of “Western-centric” human rights or inclined to resist legally binding instruments that impose “sovereignty costs.” To be sure, the SDGs are not value free. Those who praise the SDGs see them as embodying Amartya Sen’s “human capabilities” approach grounded in the need to equalize life’s chances, satisfy basic needs, and level the playing field while paying greatest interest to those with the greatest need. Some may see them as yet the latest attempt to blue-wash the UN’s (and international financial institutions’) “civilizing mission,” notwithstanding the pretense of “universal” goals. Feminist critics of SDG 5 may emphasize what SDG targets/indicators fail to measure—namely enjoyment of LGBTQ rights, cyber or economic violence, women’s roles in peace-making and conflict, or the root causes of discrimination and violence against women. Those focusing on property rights might point out that while one SDG 5 indicator seeks data on the proportion of women who have rights to agricultural land, there are no requirements to measure many other kinds of property addressed under CEDAW, such as access to financial services, inheritance, or natural resources. The downside to the nostrum that “what gets measured gets done” is that under the SDGs what is not measured may get ignored.
Notwithstanding the SDGs’ weaknesses as yet another flawed attempt to impose global governance by indicators, advocates for gender equality searching for complements to CEDAW might consider their many other strengths:
(1) The SDGs encourage the collection of gender disaggregated data essential for naming gendered equality gaps and for measuring progress to resolve them.
(2) Many of the indicators (like 5.1.1 above) directly relate to lawyers’ efforts for law reform.
(3) The SDGs’ specificity may be useful for determining whether states are in fact taking “all appropriate measures” to combat discrimination against women as required by CEDAW’s Article 2; they may provide signposts that concretize states’ “due diligence.”
(4) The SDGs supply some useful data not typically demanded under CEDAW (such as, under 5.c.1, the level of governments’ resource allocations devoted to advancing gender equality).
(5) They embrace an integrative approach (suggested by the 54 gender-specific indicators apart from those included in SDG 5) that link gender equality to all the other development goals such as the alleviation of poverty, hunger, and environmental degradation.
(6) They provide more specific rationales for educating governments and the public about why gender equality is necessary to, for example, better address the disproportionate gendered effects of climate change.
(7) By calling attention to the costs of gender inequality to individuals, groups of women, to societies, and to the world—and to the resources needed to redress them—the SDGs demonstrate that advancing gender equality in all its dimensions is not free and that states facing massive sums of debt need help to achieve it.
All of these suggest another formidable benefit: the interconnectivity of the SDGs may enable gender equality activists to bridge silo-ed domains within governments and among international organizations and NGOs. They may help convince those who foolishly think that women’s equality is not their problem.
If you ask an average European if they may request Google or Facebook to delete their data, they are likely to refer to the EU General Data Protection Regulation (GDPR). They are also likely to turn to a Data Protection Authority (DPA) or even directly to the domestic courts for that matter.
If you ask the same person if they may request the police to disclose if they are processing their personal data and to have these data (e.g, fingerprints, DNA samples, names, etc.) rectified or deleted, the average European might be more hesitant.
Why is this the case?
When thinking about data protection, most of us relate to the GDPR, which entered into force in May 2016. The GDPR is indeed a significant legal act which, amongst others, triggered almost each public and private entity operating in the EU to strengthen its data protection culture. It also gave more powers to private individuals to enforce their rights through the DPAs and courts. It has furthermore resulted in an increasing number of ground-breaking judgments by the Court of Justice of the European Union (CJEU).
As significant as questions such as “Should Google delete my data from its online search results?”; ‘How should my health record be protected?”; or “What remedies do I have if the misuse of my data concerns several EU Member States?” may be, individuals may not so intuitively ask themselves what happens to their data when processed by the EU Member State law enforcement authorities for the purposes of enforcing criminal law.
Not too many people are aware that in May 2016, next to the GDPR, a second legal instrument—which has remained in the shadows of the GDPR—was adopted. It is namely the EU Law Enforcement Directive (LED). The LED deserves special attention for two main reasons. First, it is the first EU instrument which harmonizes almost all aspects of data protection by police and criminal justice authorities across the EU Member States. Second, it anchors a high number of provisions, which seek to ensure a robust and a modern level of data protection in the criminal law field and which the Member States should have implemented by now in their national laws.
The LED regulates essential questions, such as when and under what conditions may the police collect and further process our personal data and transfer them to other law enforcement authorities outside the EU; when and what information should the law enforcement authorities disclose to the concerned data subjects; how long may these store the data and when are they required to delete them; how should the police differentiate between suspects, victims, and witnesses; how should individuals exercise their data protection rights against the law enforcement authorities; what powers and responsibilities do DPAs have in helping ensure that the LED provisions are fully respected; and when may individuals turn to courts in order to address their data protection grievances.
Not surprisingly, the LED provisions resemble the GDPR in many aspects, yet there are significant differences. Even similar provisions apply differently in the law enforcement field, as compared to fields such as online commence, due to the peculiarities of the criminal law sector. The national implementations add another level of complexity to the application of its provisions.
Hence, it comes as no surprise that individuals, lawyers, police officers, prosecutors, prison authorities, DPA officers, judges, and academics need guidance on the interpretation and application of the LED provisions. Our LED Commentary contains a meticulous analysis of each and every article of the LED, including practical examples and examples from the implementation of each provision into national law, as well as relevant CJEU case law which interprets a growing number of LED provisions. Last but not least, the volume contains three special chapters, in addition to the article-by-article analysis of the LED. First, there is a dedicated chapter on the criminal law cooperation between the EU Member States and UK after Brexit, highlighting the data protection-related aspects of this cooperation. Second, the volume features a chapter on the role of the Council of Europe and the case law of the European Court of Human Rights, which dates back to decades preceding the entry into force of the LED and which provides useful guidance about the interpretation of the LED. Third, due to the fact that the LED is a directive and not a regulation, the topic of the national implementations is a central one. It is therefore also tackled in a separate chapter, in addition to the examples from national law examined in each article analysis.
The contributors to the volume are an international team of renowned data protection experts in the field, who have been working especially on criminal law topics. They have included their practical experience, knowledge of national legislation, and data protection expertise, providing an in-depth analysis of each provision, inviting their broad and international audience to use the knowledge generated by this volume in order to contribute to the high level of protection in the criminal law field.
Almost as numerous as the missiles and rockets currently flying between Israel and Gaza are the accusations of war crimes, i.e. serious violations of international humanitarian law (IHL): attacks directed against civilians, hostage taking, indiscriminate attacks, disproportionate attacks, attacks on hospitals, violence aimed at spreading terror among the civilian population, starvation, collective punishment, and more. “Crimes against international law are committed by men, not by abstract entities,” but attributing these colossal human sufferings solely or primarily to the criminal behaviour of individuals downplays the serious, complex structural problems that stand behind these individuals. As the UN Secretary General has reminded us recently, war crimes do not “happen in a vacuum.” Even though structural problems do not justify individuals in committing war crimes which must be prosecuted, their prosecution only addresses the symptoms, and only imperfectly, without curing the disease, which requires remedies from other parts of international law. This may be illustrated by exploring the escape routes for the civilians in Gaza who are under heavy bombardment at the time of writing.
On 13 October 2023, Israel called for 1.1 million Gazans to evacuate to Southern Gaza in anticipation of military operation in Gaza City. Some were led onto so-called “safe routes” that were bombed. Others who reached Southern Gaza found themselves still under continuous bombardment. Those who have stayed or returned after fleeing because of the dangerous journey were subject to further bombing, such as the Jabalia refugee camp bombing by Israel, which claims to target senior Hamas leaders following warnings to evacuate civilians since 13 October 2023.
The predominant approach to analyse all these is through the lens of IHL and war crimes, which can connect atrocities to individuals with human faces to assuage the urgent emotional need for accountability. As the UN has observed, the Jabalia refugee camp bombing could amount to the war crime of disproportionate attack for as the ICRC commented, “[i]ncidental losses and damages should never be extensive.” Israel’s expectation that civilians should have vacated the camp following its call for evacuation could indicate that the entire camp area was treated as a single military objective, amounting to the war crime of area bombing. A UN expert has also denounced Israel’s call for the evacuation of 1.1 Gazans as a forcible transfer in violation of IHL and therefore, a war crime.
“This is a wake-up call for us to look beyond IHL … into other bodies of international law.”
It has been debated whether Israel’s original call for evacuation constitutes a forcible displacement in violation of IHL or an advance warning of attack obliged under IHL. IHL even specifically provides for establishing neutralised zone or hospital and safety zones to shelter civilian from the effects of war, and implicitly contemplates evacuation to a foreign country. The potential legality of these escape options under IHL should not, however, detract from the fundamental questions of why anyone should leave their homes to facilitate a military assault, or face a proportionate attack, or be an “incidental loss,” all allowed by IHL. Exploring the escape routes for the Gazans thus presents a catch-22 dilemma: their immediate needs for safety might be met at the cost of even greater peril in subsequent military escalation. This is a wake-up call for us to look beyond IHL, which accepts the armed conflict as is and regulates the conduct of individuals caught up in it, and more deeply into other bodies of international law regulating the structural conditions that make armed conflict and IHL violations within it possible.
The use of armed force in international relations is generally prohibited by the UN Charter except in self-defence. In the mid-2000s, the International Court of Justice has opined on twooccasions, one of which related to specifically Israel and Palestine, that armed attacks not attributable to a state do not trigger the right of self-defence. In light of these holdings, Israel’s continuous claim of self-defence in attacking Gaza may be seen as confirming Palestine’s status as a state under international law. If one traces Israel’s occupation of Gaza back to the six-day war in 1967, where Israel used force to “pre-empt” an armed attack that had not actually occurred, Israel’s continuing occupation of Gaza since then becomes itself a continuing armed attack which entitles Palestine to the right of self-defence. Even if Hamas’ 7 October 2023 attack in Israel as an act of self-defence was seen as disproportionate, Israel’s right to defend itself against that attack is limited to the extent necessary and proportionate to halt and repel it. And even if bombing Gaza is somehow seen as necessary to halt and repel the continuing rocket attacks from Gaza that break through Israel’s Iron Dome system, the scale and intensity of the bombardment cannot be considered necessary or proportionate to achieve that goal.
The Use of Force against Individuals in War under International Law: A Social Ontological Approach is available on Oxford Scholarship Online via institutional access.
Featured image by Chuttersnap via Unsplash (public domain)
Of the more than 500 journals OUP publishes, over two-thirds are published in collaboration with learned societies, charitable organisations, and academic institutions. As we transition towards open access (OA), our approach is guided both by the priorities of these communities we work with and our unwavering commitment to publishing trusted research.
The financial returns journals provide to the societies and other organizations we work with support their critical community programmes, as described in the comments and videos below. We carefully consider new journal launches and flips (journals converting to OA from a subscription model) to ensure they provide a sustainable path forward for society-owned OA journals, ensuring societies can fund their community-based activities well into the future.
In this blog post, we hear from a selection of societies and editors-in-chief on the benefits of OA publishing for their respective research fields and communities, and details of activities and programmes supported by their publications.
Mark Boyer, Executive Director of the International Studies Association (ISA)
Elise Kuurstra, Executive Director of the Federation of European Microbiological Societies (FEMS)
At the Federation of European Microbiological Societies (FEMS), we have spent a lot of time over the last few years grappling with the best way forward in terms of the open access future of our journals. Microbiology is such an important discipline for understanding and improving both human health and the health of the environment, our food supply, our biotechnology, the world’s ecosystems, and much more. Researchers (as well as many of those funding the research) really want to be able to share this important work as widely as possible. As an organisation run by the microbiology community, for the microbiology community, it is important for us to provide access to the science as well as the publishing opportunities that researchers are increasingly requesting.
We are excited that for 2024, all but one of our journals is going to be to fully OA, making everything we publish in those journals freely accessible to anyone in the world with access to the internet. It hasn’t been an easy decision: it means that our journals will likely generate significantly less surplus revenue (which we use to support our community through a range of activities and events, including direct grants), and it also means that some of our authors who are not part of a “read and publish” deal with OUP and who cannot access university or funder monies to pay the publishing charge may feel unable to publish with us.
That does not sit comfortably with us, and we have engaged in a number of ways to try to lower that financial barrier, including generous discount and waiver policies. We also have kept our flagship, broad scope, subscription journal, FEMS Microbiology Letters, as free-to-publish and intend to grow it to serve those authors who cannot access any funding for OA publishing even more than it does already.
Most importantly, though, we felt that it was a priority to ensure that microbiologists across the world had access to established, high quality journals that were fully OA, as readers—but also as authors. The FEMS journals are providing an established, trustworthy OA home for authors who no longer wish to submit their work to for-profit journals: not only is FEMS not-for-profit, but so is our publisher Oxford University Press. We think it is hugely important to the long-term health of science communication that research is professionally published (with all the checks and balances that entails) and openly accessible—and published for the benefit of science and scientists across the world.
Angelo Auricchio, Editor-in-Chief of EP Europace: EHJ Arrhythmias and Electrophysiology
EP Europace: EHJ Arrhythmias and Electrophysiologyprovides a unique open access platform for the publication and dissemination of high-quality original science, opinion, and education from leading European and international authors. It is the official Journal of the European Heart Rhythm Association and is affiliated with the Working Groups on e-Cardiology and Cardiac Cellular Electrophysiology of the European Society of Cardiology.
Since EP Europace: EHJ Arrythmias and Electrophysiology transitioned to a fully open access publishing model, online usage of journal content globally has grown significantly. By removing the previous subscription “paywall” and making journal content back to Volume 1, Issue 1 freely available for all readers, we have increased the journal’s international readership and improved access to research findings for academics, clinicians, and the research community.
Today, there are three dominant technology, economic, and regulatory powers that can be viewed as digital empires, each with the ambition and capability to shape the global digital order towards their interests and values. Each jurisdiction also holds a different vision for the digital economy, which is reflected in the regulatory models they have adopted. The US has pioneered a largely market-driven model; China a state-driven model; and the EU a rights-driven model. Exploring the nuances and different values undergirding each of these models helps understand conflicts that are unfolding and others that will likely come.
The US, China, and the EU are exporting their domestic regulatory models in an effort to expand their respective spheres of influence, pulling other countries into the orbits of the American, Chinese, or European digital empires. The US’ global influence today manifests through the dominance of its tech companies that exercise privatepower across the global digital sphere. China’s global influence can be traced to its infrastructure power, where Chinese firms—all with close ties to the Chinese state—are building critical digital network infrastructures in countries near and far. The EU exercises global influence primarily through regulatory power that entrenches European digital norms across the global marketplace. These modes of influence have ingrained American private power, Chinese infrastructure power, and European regulatory power deep into the economic, physical, and legal foundations of foreign societies. Which digital empire will prevail in the contest for global influence remains an open question, yet their contrasting strategies are now increasingly clear.
Digital societies are at an inflection point. In the midst of unfolding regulatory battles, governments, tech companies, and digital citizens are making important choices that will shape the future ethos of the digital society. It is crucial that we all understand the choices we face as societies and individuals along with the forces that shape those choices, and the immense stakes involved for everyone who uses digital technologies.
