Claudia Flores, "Abortion Restrictions Abroad"
Professor Claudia Flores, Director of the International Human Rights Clinic, discusses abortion restrictions abroad, including constitutional provisions for reproductive justice around the world, and the implications for signatories of international human rights instruments.
Presented by the Law Students for Reproductive Justice and the Human Rights Law Society on May 4, 2016.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: This is Professor Flores. Professor Flores is the Clinical Director of the International Human Rights Clinic. I have had the pleasure working with her for two quarters. Right now, currently actually, the International Human Rights Clinic is working on a project that is looking at a number of new constitutions that have been instituted within the past 10 years. There are really interesting implications. A lot of you may not be aware that there are some constitutions that actually guarantee a right to reproductive freedom and autonomy which is incredible. So she knows a lot about that from that project and from that interest, but also she came to us from the Women's Rights Project of the ACLU. So she has a lot of experience that predates the International Human Rights Clinic. So without further ado, I would like to introduce Professor Flores.
Claudia Flores: Thank you. I really dislike these rooms because you either feel really tiny or you know like you're at a UN summit or something. So I thought since I knew we were going to be a small group that I would sort of talk to you guys a little bit about international human rights and abortion restrictions in different countries and just kind of try to generate a discussion because this is an area of law that's very interesting and is also, when you do work abroad enough, you find that a lot of women's rights are treated as noncontroversial, whether or not they are as a different issue, but they're treated that way, you know, there's enough of a pressure to sort of acknowledge that women should be equal in society that governments and, and sort of different parts of society will kind of give it lip service.
Claudia Flores: But when it comes to abortion, that's one of the areas when all of a sudden everyone is completely happy to be very extreme and disagree. So it's, I think it's actually one of those, um, areas that I think is a good litmus test for how women are actually doing in a society. And of course that's arguable because there are many sort of moral and religious implications. But you generally find that places where women are enjoying higher levels of equality are places that have sort of stronger reproductive rights in place. Just to tell you guys a little bit more about where I'm coming from. So, as Caitlin was saying, I was at the Women's Rights Project at ACLU for five or six years. The national office of ACLU also has a reproductive rights project so they do a lot of the reproductive rights stuff and we did all of the other women's rights issues and then actually collaborated on things that were kind of overlapping of which there were many.
Claudia Flores: And after that I worked for five or six years also in different countries as a legal advisor to various governments on women's rights issues. So I was in East Timor working on women's gender equality legislation, advising the government there on how to comply with their obligations under CEDAW. And then I was also in Zimbabwe similarly working on the constitutional reform process and helping them develop their provisions on women's rights, including like reproductive rights. And then I have also done some work in Indonesia on human trafficking as it impacted women as well. So there was also that overlap. But, in any case, I am particularly fascinated by the ways in which international human rights and international law impact and create patterns across the world in terms of how rights are understood and how rights are conceived.
Claudia Flores: And in the area of abortion, it's very interesting because one of the most fundamental human rights is the right to life, right? It's that right that sort of a lot of people say generates all of the other rights. So the right to life which a government has not only to protect life, but then also the negative obligation not to arbitrarily deprive individuals of life. And so I guess you could say activists that are trying to reduce women's access to abortion have used that concept of the right to life to try to advocate for more restrictions on abortion. The idea being that if there is a right to life, I mean it is the same old argument that you see domestically, where does that right to life start? And if there is a right to life, how absolute is it? So this is really a global conversation, and it's really surprising the extent to which abortion has been at the center of so many different international institutions in development.
Claudia Flores: For example, the Rome Statute which establishes the International Criminal Court, whether or not forcible or whether or not restricting abortions, or sort of forcible pregnancies is what they were calling it, whether or not that was a war crime or crime against humanity was actually a major point of debate. So, and there were activists that came on both sides and you know, what was really at stake was to what extent is international law and international human rights going to be involved in this debate and on which side are they going to fall. So if you look at the basic international human rights instruments, sort of the Universal Declaration for Human Rights and the ICCPR, the International Convention on Civil and Political Rights, they all contain sort of these right to life type provisions. So human beings are born free and equal, everyone has a right to life, and you'll see these provisions and you will see in the history of the development of those provisions that there was almost always proposed some provision that said, and by the way, life starts before or life starts at conception or life starts before birth.
Claudia Flores: So all of those conversations in any of these instruments they were had at one point or another. And the only instrument, the only international original instrument, right now that actually acknowledges any right pre-birth is the the Declaration, the Inter-American Declaration, which actually has, which has a provision that states that the rights of an individual prior to birth are recognized under international law. So you will find then that a lot of Latin American countries, you know, either it's chicken or the egg issue, have very restrictive abortion rights because it is the one sort of regional instrument that you could either say was dealing with a culture that is very protective of or restrictive on abortion provisions. And so the international instrument reflects that, or the fact that there is no sort of regional protection has actually impacted the way that countries are interpreting their obligations under that regional instrument.
Claudia Flores: That said, the Inter-American commission has been quite clear and various decisions on the fact that, you know, international human rights law still requires that countries allow for abortions in certain circumstances like rape and incest and, and protection of, of the life of the woman. In any case, so, so, you know, looking at the right to life when you're looking, when you're thinking about what are sort of the international human rights international protections, you balanced them out. And that's, that's why the mechanism ends up being a mechanism that, that sort of looks at things holistically as opposed to what you often find in international law where you will have fewer rights that are enumerated and so countries and governments can sort of focus on the things that they want to prioritize without thinking about the sort of balancing act that you have to do under international human rights.
Claudia Flores: So under international human rights, you know, there's a right to health, the right to security of a person, there's a right to be free from discrimination and equality. And so when you are actually balancing all of those rights, that's really the justification for not letting one right sort of take over and finding a middle ground. And it's that middle ground that globally is sort of in development and I think that there is what you could really say is a global conversation about what abortion should look like, right? And countries are differing, but as Caitlin pointed out, you know, the clinic has been doing a review of constitutional language on a variety of spheres that impact women's rights, and there is definitely an upswing in terms of constitutional provisions that acknowledge reproductive rights, some are explicit about abortion, some are not. Very few, I think probably only two or three are explicit about abortion, but there are, there are provisions that acknowledge reproductive rights and sort of that general constitutional right to reproduction which will then be developed and kind of evolve under international law. So, so looking at the country abortion restrictions and let me see if I can make this visible to you guys. Okay.
Claudia Flores: So yeah, it meant, you folks are familiar with the Center for Reproductive Rights, right? Okay. So they have actually done really amazing work on creating this map that sort of demonstrates to you what the trends are in terms of abortion restrictions globally. And you know, generally speaking, there are abortion restrictions that essentially, at least by the letter of the law, prohibit abortion altogether. Um, and that's, you know, that's sort of the most extreme.
Claudia Flores: So this, this is sort of the general category of the most extreme laws that you'll find a lot of them are in Africa and then you basically have like a fair amount of Latin America which is, you know, you can say is consistent. I mean there can be religious reasons, the international, the regional instruments in Latin America, like I said, kind of reflect this restrictive understanding of what a woman's reproductive rights are. In Africa, on the other hand, you have the Protocol of the African Charter that is actually quite progressive and liberal, but you know, not all countries have signed on to the Protocol to the African Charter and most of them tend to be in the southern and eastern region. So you can actually see, you know, the bottom of Africa is, is it does not have those restrictive provisions in part because of their obligations under the Protocol to the African Charter.
Claudia Flores: And you know, this is so, these are situations where the, you could still, an abortion can be provided to save a woman's life or it's prohibited altogether. And there are countries that have incredibly restrictive, incredibly restrictive provisions such as Brazil, Venezuela, Chile until recently had like an almost complete ban on abortion, Mexico, it's actually left to the states to determine whether or not they're going to allow for abortions. And I, and a majority of the states have very, very restrictive provisions, kind of like the United States, actually. It's a similar setup. Um, but in general, you know, countries have been liberalizing. Um, and you can see here. Okay, the, for example, I have to remember. I think this is, this is.
Claudia Flores: Yeah, so this is Ecuador. Ecuador actually has a provision that only allows abortion in cases of rape of a woman with mental disability. So that's a pretty restrictive provision, right? So the idea being that I guess the psychological faculties that are regular woman would allow her to kind of like deal with the fact that she was having a baby from rape whereas a woman with mental disability can't really exercise that level of, you know, sort processing or psychological processing. There are a number of countries that allow for abortions in situations of incest. I would say that even the most restrictive provisions, like that's enough of a social taboo that, that generally, you know, countries will, will at least see to that. Um, and then rape is the other situation where you have countries that, that will allow, um, abortions in the case of rape.
Claudia Flores: There are a bunch of countries that require spousal authorization. And those tend to be countries where you have women playing a bit more of a backseat role in society and men having like a slightly more powerful role in the, in the marriage relationship. And there are various countries that also require parental authorization. The United States being one of them, India andSpain. And then like I said, there are a number of countries that don't determine this at the national level but actually just have the states decide on their own. And the United States and Mexico are two of those countries that have that sort of system of governance. And then there are also a number of countries that will allow it for socioeconomic reasons, which is also very interesting. Um, so, and you can sort of decide what you think about that, but essentially a woman could make an argument that they can't afford to have a baby so that they don't have the sort of, the economic conditions to be able to have a baby.
Claudia Flores: Um, that all sounds fine. But, um, from what I understand anecdotally, a lot of times that's implemented in a bit of an uneven and coercive manner where you have poor women that are actually sometimes pressured into having abortions because the state doesn't want to actually support their children. So in a way that's, that's a bit of a complicated and dangerous approach I think. And then you can see the, you know, again, not totally surprising, the part of the world that generally has, you know, without restriction as to reason. So you can still have restriction as to time period, you can still have restriction as to conditions, but you don't have to provide a sort of a morally oriented reason for why you would want to have an abortion. Um, and that ends up being, you know, a lot of Europe, you know, a fair amount of central Asia, the United States, and you know, sort of the areas that you would kind of expect.
Claudia Flores: And then in terms of how we see these restrictions being implemented in different countries, you know, as, as Caitlin was saying, there are countries where you have constitutional provisions. So Guatemala and Chile, for example, have provisions that say, you know, the law protects the life of those about to be born. So that constitutional provision then is, you know, it impacts whatever legislation generates from that. And then you have various countries where just an issue of, you know, federal legislation but doesn't necessarily make it easier to change. There are a number of countries where the constitution is really just something they vaguely refer to and is not nearly as persuasive as it is in our country. And sometimes when you find something in legislation, it's as much of a sort of basic tenant of the legal structure of the society as you would find in a constitution.
Claudia Flores: And the problem with legislation is that usually the rules are very specific and so they're harder to change. In a constitution, you can try to interpret your way around the edges of things whereas when you're, when you're in legislation, usually they're very, very prescriptive. So I think that that's, you know, I, I think that it would be good for us to talk a bit about, you know, what, what sort of issues you guys see as being complicated around abortion. You know, it's one of those areas that feels kind of morally fraught, but the truth is a lot of laws are actually morally fraught. And so I think that, you know, people tend to kind of like over and over focus on abortion as being different. I think because people feel very strongly about it and so the conversations end up being a bit more complex, but in reality, you know, this is like many other sort of basic human rights issues, you're balancing a bunch of different interests and issues against each other and you're trying to find this kind of middle ground. And for some there is no middle ground, right? Like you just focus on, on what, what is, what is best for the woman and that is a completely legitimate argument. But the majority of the world, as you can see from this map, sees some middle ground as being necessary. So, yeah?
Question One: I saw that the UK is in green. What restrictions do they have?
Claudia Flores: That's a good question. I'm not sure sometimes they have, they actually have links to the, to the legislation, but I'm assuming they have some restriction and it must be, yeah, it must be a restriction as to reason because that's the only thing that this is, this is really capturing. But I don't know if we can figure that out. Yeah.
Question Two: So I'm wondering like how do you like from an international approach, balance kind of like the need to advocate for women with like sensitivity towards other cultures particularly because a lot of notions about sex and gender are like tied up and culturally specific. Especially given that a lot of the countries that were in red and orange have like complicated histories with colonialism, like how do you approach that?
Claudia Flores: Yeah. Um, I mean that is a, that's a really good question and a very complicated one. You know, I, I find that the answer to that question is what role you think you're playing in a particular situation. So, um, the work that I've done internationally has sometimes been as an outside advocate, you know, where I'm kind of like indirect confrontation with a government that's trying to do something, but most of the work that I did later in my career was as an advisor to the government. So that's a different relationship, right? I'm an advisor to the government that's brought in by UN agency. So then you have these sort of two parties that you are accountable to. You are there to enforce international obligations, but you're there to assist the government in figuring out a way to do it effectively. I find that if you come in with your idea of what's supposed to happen and you're inflexible about it, conversations stop and you get nowhere.
Claudia Flores: So there are certainly, for example, provisions in the Zimbabwean constitution that I was not happy with. There is a provision in there, for example, that says that marriage is between a man and a woman, right? And there was a lot that went into that, a lot of battling, a lot of fighting, a lot of civil society efforts, you know, and, and in the end it was a loss, but there were a bunch of other gains, right? That were kind of on the flip side of that. I think, you know, there's sort of two issues. One is being reflective with yourself about where your values come from and whether or not those values really are transferable in the way that you're thinking that they are, but also being respectful about the environments and what are the dynamics that are taking place there, dynamics that you can't understand even if you spend 10 years there.
Claudia Flores: Right. So I think that, I mean the short answer is, you know, sometimes you know, it's like there's a, in a mediation or a negotiation, they always say that both parties should walk away slightly unhappy. Right? Then, you know, it's been successful. And I think that that's true when you do advocacy too, like if you got exactly what you wanted, you probably weren't asking for enough or you know, there's going to be backlash, like they will figure out a way to undo what you did, you know, so you should be slightly unhappy, they should be slightly unhappy and then the world moves forward.
Question Three: I was hoping you could say a little bit more about the situation in Mexico with kind of the state and local regulations clearly because that's a very salient right now in the United States. Um, I'm curious about the specifics of that. It sounded maybe, and maybe I misunderstood you, like the states are deciding about the legality of abortion itself whereas here it's various regulations are meant to impede access. And then I wonder if you have any kind of general thoughts about like I realize we have states rights when it's, when it is, as it is applied to what has otherwise been recognized as a fundamental right. It seems like a strange system. So.
Claudia Flores: Do you mean in the United States or globally?
Question Three: And if, and if Mexico has a similar setup, it just seems like it may not be as salient with Mexico if abortion is not a recognized fundamental right as it is here, but.
Claudia Flores: Right. Yeah. So, I, I'm not an expert on the Mexican legislation at the state level, but it is true that, that the issue there is whether or not abortion is legal. It's not like how can we restrict it, right? And that the national government and you know, it's arguable, and there have been cases I think before the Inter-American Commission on this, it is arguable that Mexico is kind of that, that the national government of Mexico has an obligation to set some kind of basic standard and can't just let the states decide that they are going to do whatever they're going to do. The problem is that, you know, with the state and federal government arrangement, as we know here in the United States, like it's a bit of a moving target, right? And it has a lot to do with politics, like where the federal government is responsible for something and where state governments are responsible for something.
Claudia Flores: And from what I understand, Mexico is organized in a similar manner. There's a lot of independence. The states don't receive very much from the federal government so there is kind of less incentive to actually abide by whatever the federal government would do. I bet this is a practical determination as well that the, that the national government is not really even in a position to tell the states what to do on this stuff, and because abortion has just been a lightning rod for religion, you know, the communities that are sort of, you know, invested in this are going to be heavily invested, right? But I mean in terms of, you know, my thoughts, you know, it's quite clear to me that a nation, when a nation takes on an international obligation, that nation has a responsibility to mainstream that throughout its country.
Claudia Flores: Right? And to the extent that that's not happening, that's a failure, you know, and um, I mean the US has been incredibly careful about not, you know, ratifying CEDAW and just kind of keeping itself out of some of the treaties that would create these obligations. But even the ICCPR and the UDHR are quite clear that abortion, you know, needs to be an option in certain situations. I don't think, I don't think the US violates, I don't think we are up against that kind of international law. We're probably up against the spirits of a lot of international law, but we're not up against any explicit provisions that we've actually adopted. Um, and that's just, you know, us being good lawyers in the country, you know. Go ahead.
Question Four: Thinking about the... because the map shows the reason exceptions and so the United States appears as green, but I think it's not really, you wouldn't really consider it green in like the grand scheme of things. Do you find that countries with these reasoning exceptions as opposed to somewhere like America, are they more like what's the, as long as you fit within the reason people are more respectful of abortion rights, so it's like it has to be, you know, for this particular reason, but as long as it's for that reason, everybody's okay with abortion. Whereas here, there's not really the reason, the explanation, but nobody, a lot of people aren't really okay with abortion regardless, even though that's technically not a consideration. It's more of about...
Claudia Flores: Yeah. Yeah. I mean that's a, that's a tricky question because the reasons are always these very extreme, you know, it's rape, incest, you know, it sort of. I mean I would be curious to look more at the legislation that is about socio- and economic conditions because think then you start getting into, you can imagine that someone would want to make an argument for socioeconomic conditions that other people would find objectionable. And I also, I don't mean to diminish the fact that even in a situation of rape or incest, there's all sorts of, you know, cultural craziness that would happen there when a woman is trying to demonstrate that that's the reason she needs an abortion. But I think that if the reasons were more nuanced, that would be more likely to happen. I take countries that restrict abortion to situations of rape or incest.
Claudia Flores: I take that to mean that they're trying, they're, they're more committed to finding reasons that a woman can't have an abortion than the ones who are creating procedural complications. I could be completely wrong, either could be a country out there that has created this crazy network of procedural complications that are actually meant to restrict abortion entirely. Um, I mean, we're kind of doing that sometimes, right? But, but I think that that when you're, when you're more brazen about it, there's, there's probably more of a, there's more resistance, I think than countries that are kind of willing to figure out what's the right way without looking into essentially, you know, what's not really anyone's business. Right? Like the reason that you're doing it.
Question Five: Do you have a sense of which countries have the least procedural restrictions on abortions?
Claudia Flores: I don't, but I think, you know, there there's the, there's the obvious ones, right? Like spousal consent and parental notification, you know, there are those and, strangely enough like, you know, I was actually looking at this before coming here and I expected to find spousal consent and parental notification to be very, very widespread and it's not. But I think that that probably is, you know, at the administrative level and then, you know, there's so many like you find when you're doing, I mean particularly work in countries that have weak infrastructures or weak rule of law. There are a lot of things that you think are not going to be barriers that actually are, you know, like a filing fee of $10 to enter some kind of procedure or you know, being able to actually access a clinic. I mean there are a lot of... It's difficult when you're looking at the law to know really about access, right? Because a lot of times the law can look great but access is very, very low. So there may be all kinds of de facto procedural restrictions that are not reflected legally, that, that may actually be like the most significant part of whether or not women can really access abortion. But yeah, I mean it's interesting. I don't know off the top of my head.
Question Six: I'm sure this varies a lot by country and also by population in a country, but do you have a sense of are there some places where maybe on the books the laws are very strict against abortion, but they're not enforced and there's widespread access and doctors are performing or other health professionals in a safe way or relatively safe, are actually providing abortions.
Claudia Flores: Yeah, I think the last part what you said is the trick. I think there are definitely places that have restrictions of abortions on the books. Chile, actually, I mean now, now, now things are changing, but Chile, which had with the most restrictive laws, I think had like one of the most sort of like expensive abortion use or whatever the stat is, in the world. But there were also a lot of women who were dying because they were, you know, kind of accessing unsafe. I'm sure that's incredibly class-related. I'm sure you're finding poor women who were in these unsafe situations and um, I mean Chile is a relatively wealthy Latin American country, at least in terms of the way society is structured. So I'm sure that the middle class and the upper class women had quite easy access to abortion, and that's part of the problem is you have these laws that are really only affecting like the population that wouldn't be in a position to work their way around it. I'm from Peru. I feel like I can say this, there's a lot of countries where that's par for the course, you know, you have the law that affects everyone else and then there's all the dealings that are actually going on with people with access.
Question Seven: From an enforcement perspective of our cases being brought before international human rights court, sort of trying to reinterpret these sort of key provisions of these treaties and sort of going forward, do you think it just sort of in the interest of expanding access to reproductive rights for women, is that kind of a viable way that that sort of the relevant treaties and sort of developments in international law should go forward? And I mean, one concern that I'm sort of thinking of is if you live in a poor country, if you know, you come from more disadvantaged socioeconomic backgrounds and you know, your country may or may not be meeting its obligations under international law, sort of what, what from an enforcement perspective. I mean, what's your belief? I mean, how, where do you, where do you go?
Claudia Flores: Yeah. So there, there have been and there are um, you know, the, the committee that enforces and interprets the ICCPR, the CEDAW Committee, like there have been cases a lot from Latin America actually. Kind of interpreting what CEDAW requires and what the ICCPR requires. There have been cases, um, I think maybe at the Inter-American Court, but definitely at the Inter-American Commission also issuing interpretations of what the, what the American Declaration and the American Convention require. Um, but you know, this, right? I mean, relief is a strong word. Um, and I think that it depends on, it depends on what the country has agreed to. Um, it depends on how seriously the country takes international opinion and the decisions of these kind of bodies. Um, but I mean in terms of, yeah, I mean there's, unless you're in an official international court, which you will only be in very specific situations, there is no relief.
Claudia Flores: But you know, Chile, I think the, the movement in Chile came after like some, some, hearing at the Inter-American Commission. So, so those things, you know, they take them seriously in their matter and there is also pressure. Um, I also have found that the regional pressure is incredibly effective. Um, you know, countries are divided into communities, and they care so much about what their neighbors think in a way that they don't care about what others think. So Latin America, you know, when certain Latin American countries started doing things, other Latin American countries will follow. I mean southeast Africa, and I mean, you know this, it's like they, they really look at each other, they visit each other. They're kind of seeing what other countries are doing and what they can borrow. So I think that in terms of advocacy, it, it sort of generates in that way.
Claudia Flores: I think. Um, and you know, I think also with abortion because there's so much, what is it like that, there's so much more realistic fear around it that I think that when governments see that restrictions were eased and I don't know, you know, their population didn't disappear, whatever it is that they think is gonna happen, you know, that, that I think that it just ends up making people more comfortable. But, you know, I mean in terms of the advocacy that's taking place, definitely, you know, filing complaints with, with, with the treaty bodies, going to regional like the regional bodies and trying to get decisions, um, and just interpreting, like offering interpretations of what international law requires. That's really what they can do.
Claudia Flores: Other questions, thoughts?
Question Eight: Are you familiar with Charles Taylor's, I think his name is Charles Taylor, I read this like last year, "Forced Consensus on Human Rights." So he talks about how I think in Singapore, Buddhism is really prevalent and so they don't go with Christian values or American values, where we get our sense of human rights and that kind of stuff. This factors like a lot of resistance to westernization and like why are you bringing your values over here? We do life just fine. And so there were some people that went over there to work on human rights stuff and so they looked at like the local culture and they found a pizza. The of nonviolence and Buddhism, they use that as an argument as to why you shouldn't hit your wife. And that worked really effectively. Do you do anything like that in trying to build those cultural connections and if so, could you talk about that?
Claudia Flores: Yeah, yeah. I mean, I think that those of you who have heard me talk about human rights, you know, I believe strongly in doing that kind of advocacy in the service of things that are already happening on the ground. So in a way, you know, the work that I would do or the work that we're doing now is generally with sort of partner organizations that are engaged in some kind of advocacy and see some benefit in using that language and sort of what that language actually gets them. But you know, I, I have two things to say too that sometimes I'm wondering, I do think that that argument is often overblown because there is, there is dialogue happening. You know, there are discussions and these discussions are happening between the East and the West or you know, whatever they are. And of course there is no doubt that "the West," and I'll put that in quotes, you know, is, was what sort of in a leadership position to developing the way that a lot of these rights were framed.
Claudia Flores: Um, but there has been dialogue and development since then that makes them much like much reflective of what different sort of cultures understand, right? The second thing is that, you know, there's always sub-communities and all of these larger communities that are very excited to, you know, get certain rights recognized on their behalf. So to say that there is a culture where, you know, people don't really care about equality or don't really care about discrimination is, is really quite silly, I think in the end. And, and the human rights and you know, there is actually, for those of you guys interested John Testile is speaking tomorrow on minimum core obligations. He's doing a lunchtime talk and I've actually read his paper and it is very fascinating because it's a reaction to this concern that is related to your question, which is that human rights have proliferated so much that now there's just like a right to everything, right?
Claudia Flores: I mean, that's what some people say, that there's a right to everything. And so how do we actually recognize what the real core rights are that we are supposed to be enforcing? First of all, you know, there's obviously a difference between a right and an interest, right? There are lots of people that have interests and we can all have interests, but those do not mean that you have a basic right to these things. And then the second question is, are there rights that are subsumed in other rights? You know, so like some people, I mean you could take the right to life and you can interpret it to actually require all kinds of stuff, right? I mean, if you understand the right to life to mean a meaningful, functional life, then all of a sudden you have a right to education and you have a right to health and you have a right to all of these other things that are actually under this right to life.
Claudia Flores: And you know, there are pros and cons that thinking about it that way, there's a pro when you're dealing with a society that actually has like a cultural norm that they, that they ascribe to already to kind of tease it out and see what the implications of that would be and that's the strategy that a lot of people use. But you know, like I said before, the amount of backsliding that takes place in countries where things have been imposed on them is incredibly shocking and it is a huge waste of time and resources. So doing anything that way is a huge waste of time and resources. That is my opinion. So and I've been part of that before. I mean, I, I've, you know, to give you a good example, the, I was there and, and, and helping them pass the law against domestic violence in East Timor. In East Timor, you know, all of these outside people came from Canada and the US and you know, they had all of these ideas about how a shelter should look and you know, how the service delivery should work.
Claudia Flores: And it was all modeled after like things that have happened in our countries, right? I'm an East Timor setup, something that if you read the law you would think it's great, but they neither have the funds nor the rule of law nor the infrastructure to implement it. So you have these things that are called one stop-shops or something like that where supposedly a domestic violence victim is supposed to be able to come and kind of get services and sort of be directed to a shelter and all these things. A lot of them are empty. You can't have a shelter in a country of a million people and expect no one to know where they are. So like women won't go there because their communities know exactly where they are, you know, there's just, there's a lot of things that, that if you, if you aren't like contextually specific and you aren't in dialogue with the people that you're trying to work with, that you just will create a disaster. And it's a hard thing and for those who are impatient about the impact that human rights has, that is a fundamental misunderstanding. Right? They is a huge, long road to actually like it. Like incorporating these rights and getting them sort of actualized in particular ways in particular societies.
Claudia Flores: Sorry, that was a bit of a digression. Other thoughts, questions about abortion or human rights in general? I can talk about that forever.
Question Nine: Excuse me. How much should ome of these comments make us skeptical of international intervention in general. It sounds like a lot of what you're saying, imposition doesn't work, it's from the ground up. That people care more about what their neighbors say rather than what the international community thinks. Looking at the map, I'm sure that for some of these countries, especially in South America, are signatories of the same treaties and agreements and yet have different abortion laws even though they're interpreting the same treaties or agreements. So should we be skeptical that there's a causal relationship between these international agreements and abortion rights on the ground? And if so, what should be the focus to change that? There was at one point you've kind of talked about what should be the core rights. I know that Professor Posner's argued that some of the impotency of international law comes from how much international laws and how many of your rights have proliferated that the rights are contradictory and not only really contradictory, but people don't even know what they mean sometimes. There's a lot there, but basically it was like, should we be skeptical of the common effect, and if we are, what is the solution?
Claudia Flores: Okay, there was a lot there. So the first thing that I will say, and probably no other law professor will say this, but, um, you know, domestic law is also very unstable, right? It is subject to politics and we see that in our own country from one administration to another, um, but look at any other country and it's like whiplash, you know, from one minute to another, you will be in a totally different situation. So let's just like acknowledge that. And you know, when law is working well, it is building on itself, it is evolving, it is recognizing its history as it goes in a particular direction. That is the story we tell, that is the story you guys are all told. That's what law school is about, you know. And it's not untrue. It is true. But if you look at the world and you look at sort of real world politics situations, it is much more unstable and more complicated than that.
Claudia Flores: Right? So that's the first thing. The second thing is that international human rights law is baby law, right? It hasn't been around for very long. It's like way at the beginning of its. I mean, if you think about the goal of creating a global community upon which there is actual agreement for the basic ways that we treat other human beings, that's big. I think it doesn't get any bigger than that. So, so, you know, international human rights law as baby law, it is at its beginnings and so yes, it has not finished its job. That is true as well. Third, when I said that countries pay attention to their neighbors, I actually meant that as an argument for international human rights law, which is that I believe that regional instruments actually end up being often more effective than international instruments and that they are actually at their best when there is interplay between the international instrument and the regional instruments.
Claudia Flores: To give you an example, you know, the southern-eastern Africa block, which is what I was talking about, has the SADC protocol. So the Southern Africa Development Cooperation Protocol on Women's Rights, Gender and Development, and then the African Charter which is on women's rights and the protocol, you know what the African Charter is on human rights, the protocol of African Charter has other concerns. They're essentially reflections of what CEDAG says, a lot of reflections, but, but the protocol is far more specific about what countries have to do, so it's essentially a way of implementing CEDAG obligations. And so they had to do certain things by 2015. The deadline just passed. Um, and the protocols, the African Charter had a number of issues. Those two regional human rights instruments are very powerful in Africa. I mean, you bring them up and everybody will listen. The governments have just fallen all over themselves to try to actually meet these deadlines.
Claudia Flores: They are obligated to each other and it's an international community is just a manageable one, right? Like they're neighbors instead of trying to figure out how to care about what's happening across the world in Japan and China. Right? So I actually think that thinking about things that way, it's not an argument against international human rights law, it's just an understanding that people just tend to be more responsive to the community that surrounds them and if you have an international instrument that is setting a standard and then you have regional instruments that are helping a particular community with their particular culture in their particular context, have a common understanding of what implementation means, you are in a better place. It's not a solution because you will end up with something different. You'll end up with something different into, in the, in the, um. Oh God, what are we called?
Claudia Flores: What's our America? What, what's our community of American states? Why am I blanking on this? Hey, sorry. Yes. Oh yes, OAS. We will, we will have a different, you know, we'll have a different understanding but, but there's still an attempt to create a global understanding. And then, you know, I think there's, it's silly to ignore the sort of like two structural differences. There is no world army that's going to come in and like, or no world police that's going to come in and make people do stuff, right. I mean that's what makes a nation-state is that there is coercion and there is also benefits. Why do the states listen to the federal government? Because there's money involved and because we have a military, right? That's why Texas has not seceded. So, so these are, I mean, those two things exist in much more complicated forms at the international level.
Claudia Flores: I mean, you have carrots, you have money, you have money from the World Bank, you know, there is money out there, aid money and that makes a difference. Um, and there is also a little bit of a stick, you know, with other countries it will take away aid and things like that. But it's not nearly as direct and there is no super-governance. But you know, the question for me is what happens without it? You know, I mean if you, if we can't find some middle ground where, yes, calling something law in a super-national sense is a complicated thing to do, but it is something like law, right? And it's, it's, it has coercive power. People have agreed to it. It's a contract between individual entities and like any contract, sometimes the parties abide by it and sometimes they don't and sometimes they get away with it and sometimes they don't. So, um, so, you know, I do not in any way think that national law and international law are completely comparable, but it's just a different world where you just have to, like, there are different dynamics and you have to function in a different way.
Claudia Flores: Any other thoughts? I'm happy to defend international human rights all day.
Host: So if there are no other questions...
Claudia Flores: Wait, I think there's one.
Host: Oh great!
Question Ten: There's one sort of touched on this before, laws are trying to only do so much. So when you are trying to craft these policies or laws, how do you center, how do you both determine who are the marginalized portions of the society in which you're working and how do you figure out a way to center them within the context of the legislation? So for instance, you were saying that some states will, you know, walls and you don't have access to services. What is a way that someone who is crafting policies is able to acknowledge that, recognize that, and build that into legislative language? Or is there not a way to do that? Is that just its own project?
Claudia Flores: Build into legislative language ensuring that the, that the groups of people who don't have access to these things actually have access to them? Or is that too specific?
Question Ten: Not just access, it's like, I feel like there's people who are marginalized for a number of different reasons whether or not that's geographic area or income or minority status within the country. Is there any way of acknowledging some kind of, you don't want to call it special status, but it's an acknowledgement that this is something that is meant to be universal and as a result willing to find ways to incorporate it to them. People who you don't think will get access.
Claudia Flores: Yeah, I see what you're saying. Well, so I'll answer that question first. I mean, you know, the, the, there's a principle under, in most international human rights treaties called affirmative measures, right? So the government, and I was talking before about positive and negative obligations. The government not only has an obligation to not harm you in certain ways, but it has an obligation to make the reality of the right, right for all of its citizens, for, for all the people within its borders. Um, so if you had a legislation that provides abortion then and then under international human rights law, the government would then be obligated to look to see who doesn't have access and who isn't getting access and who is being marginalized and create reasonable measures to ensure that that's not happening, that there isn't that kind of inequality, right? So for example, you know, if there are people who are living very, very remotely and they can't actually access a hospital like this happens in the right to health all the time or you have governments that, you know, they've set up like a health center in two parts of the country, you know, and, and, and everybody else, just, there's no real way of them accessing it or marriage certificates, you know, the sort of those things that make life possible and that actually gives you status.
Claudia Flores: So, so there is an obligation for the government to take affirmative measures and that's, that's the huge difference. I mean, one of the principles that, I mean especially being in the United States, that is so different under international law or domestic law is equality and nondiscrimination, you know. I mean, the concept of nondiscrimination under US law is so thin, you know, it's, it's like, it's almost nothing, you know, and, and under international law it actually requires substantive equality, you know, not just that I mean to discriminate against you or I've created this huge pattern that is so obvious that nobody can deny it, you know. But, but, but it's, it's much more demanding than that. And then that's your first question, which, which I take to be a little more practical. Like I, you know, I think that you, the fact finding component of human rights work is very critical.
Claudia Flores: And, and to know, you know, when you walk in and you have a particular goal to really understand the dynamics and who's benefiting and who's losing. And, and you know, the thing about power dynamics as they reproduce themselves, you know, and, and if, if you, if you don't take an, if you don't make a huge effort to resettle stuff, like you can give women micro-loans, you can give women, you know, access to water, like you can do all these things but if that power dynamic was already there, the power dynamic will find a way to continually deprive. It kind of has a life of its own, you know. So, so you have to really make targeted interventions that are slowly kind of like resetting, resetting the way things work, like really, really at the local level. Like in Zimbabwe, you know, there was um, domestic violence, there were all these efforts to kind of deal with domestic violence and in the local community really changed the understanding of, of what it means.
Claudia Flores: And there was this NGO that started working with some of the customary leaders and they actually brought the customary leaders. And so these are like, they're kind like cheap heads, you know, that have a lot of power in the community even though they don't have any official power under law. And the customary leaders ended up taking on the sort of obligation of explaining domestic violence and talking about domestic violence in the community. And you know, on one hand, at the beginning it was kind of horrifying because what they were saying is like not what domestic violence is at all. But um, but over time that evolved and at that point they had also we're thinking about it and, and we're telling the story to the community and then eventually there was a change, you know, like people understood domestic violence in a different way. So I think strategies like that end up being effective, but you know, they're hard and they and they take time. Well thanks folks!
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