The Human Rights Blog

Paul Scrom, J.D. Candidate 2012, Hofstra University School of Law

Recently, several pieces of legislation were introduced in the United States Congress aimed at preventing internet piracy and protecting intellectual property (“IP”).  Specifically, the Protect IP Act (“PIPA”) and the Stop Online Piracy Act (“SOPA”) were the two leading attempts at limiting the Internet.  The bills seemed almost guaranteed to pass until a tremendous amount of protest by internet users and internet companies greatly influenced Congress to delay voting on the bills and convinced lawmaking proponents of the bill to cease their support.  During the arguments over the bill, opponents quickly drew comparisons to the Internet censoring structures of Iran and China, two countries infamous for their internet regulation surmounting to human rights violations.  The same could be said for PIPA & SOPA, but one main difference is that the American bills at least mask censorship of speech by claiming their only goal is to stop piracy and protect IP rights.  But, there is a conundrum:  there are both human rights in IP protection, and in freedom of speech and expression.

Human Rights Issues Concerning Internet Regulation

The Universal Declaration of Human Rights provides for rights to freedom of speech and expression, along with intellectual property rights.  In Article 19 the rights to speech and expression are materialized:

Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Although the Internet did not exist in 1948, when the Declaration was created, the Internet is still a form of media and a frontier in the context of this article.  The laws of any country which limit the freedom to receive and impart information on ideas through the Internet are surely in violation of this fundamental human right.  Article 27 of the Declaration seems to deal directly with intellectual property.  There are two sections to Article 27:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2.  Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Laws such as SOPA & PIPA have a curious task in balancing these two provisions.  How do you balance the individual’s right to protection of moral and material interests stemming from authoring scientific or artistic creations, if everyone has the right to freely participate in the cultural community and to enjoy and share in the arts and benefits of scientific advancement?  The Internet is a medium in which millions of people are creating art and advancing science every single second, participating in a cultural community (Art. 27-1).   Ironically, it may be necessary to limit the medium in order to protect such creation of the individual (Art. 27-2).  Further, the Internet is a river in which the water of ideas constantly flows, and setting up a dam to protect individual creators (Art. 27-2) will consequently impinge upon the right of others to express and hold opinions and receive information (Art. 19).  Countries like China and Iran are highly criticized because the regulatory infrastructures are far from sympathetic toward the rights found in Art. 19 and Art. 27-1.

China and Iran: Arbitrary and Disproportionate Internet Censorship

Photo credit: slashgear.com

China’s “Great Firewall” is the strongest and largest censorship structure of the Internet currently, with Iran’s filtering software right behind it.  The two countries use firewalls and other software to block online speech which it finds immoral or threatening to their system of fear they worked so hard to use to control their citizens.  China not only stymies unapproved content, but the country targets individuals and restricts them from using the Internet altogether.  In fact, a Chinese citizen can easily be arrested for writing a single email complaining about the government.  Both countries participate in this imprisonment of cyber dissidents, clearly violating the human rights embedded in the sections of the Declaration discussed above.  The governments use internet censorship to stop the infiltration of outside, specifically western, media and politics, and to monitor speech internally.  The two governments use a filtration system which requires all websites to register through the government and gain permission on its content.  Although it is well known that the two countries perpetuate abuse through their regulation of speech, the level of the abuse is hard to discern because of the censorship itself.

China’s and Iran’s main goal in internet censorship is to regulate speech in order to suppress dissidence and ensure control through fear.  The United States Congress’ attempt at censorship is aimed at protecting IP, but the fear is that the bills are too broad and even any amount of censorship would inevitably lead to a system like China’s and Iran’s where the government can pick and choose which speech is made available.

SOPA & PIPA: A Road to Another “Great Firewall?”

The human right to protection in one’s IP is uncontroverted; everyone deserves protection for their individual innovations and contributions to entertainment, the sciences, and more.  SOPA & PIPA have the right intentions, but will likely have the wrong effects.  Such effects will inevitably lead to the squelching of speech not subject to IP protection, but subject to protection as a human right.  Thus, the bills need to balance such squelching with IP protection, the two human rights at issue.  When the bills are analyzed, it is clear that they fail in sufficient IP protection, and go too far in squelching the freedoms of speech and expression.

One main illustration of this imbalance is that although SOPA & PIPA claim to only target foreign sites which infringe on IP, the bills require compliance and liability on third party U.S. sites as well.  Not only will this result in suppressing foreign sites from entering U.S. internet domains out of fear of being subjected to lawsuits for what users or subsidiaries post on their sites, but U.S. sites have a positive duty to monitor content and would be subject to liability (under SOPA at least) if they do not act on infringing content.  This will inevitably lead to startup companies, whether foreign or domestic, and individual users, deciding to not enter the market or post on sites out of fear of violating the act, squelching potential speech.  This is particularly problematic for sites such as Youtube and Facebook, which are engines of free speech and allow for user generated content. The bills are overbroad as sites would be in violation of the bills for “enabling or facilitating” infringement.  How far does the definition of enabling or facilitating go?  Practically, the existence of the Internet itself enables and facilitates infringement.  Youtube and Facebook would have to take positive steps to monitor millions and millions of domestic and foreign users.  They would be subject to the lawsuits and potential criminal sanctions associated with bills if they fail to do so.  This would result in the suppression of both speech and the mediums of speech themselves.  Craigslist, Google, eBay, personal sites of musicians, fan sites of celebrities, and other millions of sites that enable the spread of information, speech and business will inevitably be targeted for infringement claims under the broad nature of the bills.

Also, the mechanism for censorship under the bills is exactly the same mechanism used by the Chinese: DNS blocking.  DNS, or Domain Name System, is the identification protocol for anything connected to the Internet.  The bills will block the particular DNS which supports or facilitates content in violation of IP rights.  This is a wholesale technique which will block other speech under the particular DNS that is not in violation of the bills.  This is concerning because the U.S. has promoted similar legislation in other countries, particularly Russia, which now use the legislation to suppress political dissidents, rather than to protect IP.  Although there is some evidence of China’s and Iran’s use of their anti-piracy laws to censor speech over the Internet, they do not need to use such laws to do so since their censorship laws are so blatant.  But in Russia, the government has used laws similar to PIPA and SOPA to target anti-government dissidents.  Once these bills are passed, the United States runs the risk of allowing the government to abuse, whether discretely or not, their newfound censorship powers.

In conclusion, bills such as PIPA and SOPA are too risky.  The potential for grave and far greater abuse of our Art. 19 and Art. 27-1 rights, rather than protecting violations of our Art. 27-2 rights, justifies the overwhelming protest over the bills.  For now, the bills have been tabled, but not thrown out.  The risk of falling into a censorship system eerily similar to China’s and Iran’s, is not worth the minor potential protection of IP these bills have.  In fact, many critics of the bills believe they are far too focused on enforcement.  The Internet is too dynamic and ever changing to think that DNS blocking and some fear is powerful enough to sufficiently protect IP rights.  Many think that the fix to IP violations over the Internet is to be found in the business realm.  The true path is to focus on user friendly, clean, and intuitive services, such as Netflix and Spotify, that give users incentives to pay for content at a reasonable price.  There seems to be a disparity in how much money proponents of the bills, such as the movie and music industry, want out of their products and what the consumer is willing to pay.  But, from a human rights perspective, the risk seems too great to justify the benefit.

Popularity: 8% [?]

David Prater, J.D. Candidate 2012, University of Maryland

The International Court of Justice (ICJ) issued a preliminary ruling on July 18^th ordering a demilitarized zone (“DMZ”) around the Preah Vihear Temple on the border of Thailand and Cambodia.  While only a provisional measure, this judgment is a departure from a previous decision regarding Preah Vihear and indicates the Court is shifting its position of exclusive Cambodian control over Preah Vihear to an international or bilateral arrangement where responsibilities are likely to be divided to protect a site, which is recognized to be of “outstanding universal value.”

Background

The Preah Vihear Temple is a flashpoint for violent border confrontations between Thailand and Cambodia. It is the most visible representation of a border dispute dating back to Cambodian independence in 1953.

Constructed in the 9^th century by the Cambodian Khmer Empire, the Preah Vihear Temple is a Hindu temple to Shiva.  Subsequently, Cambodia came under the control of Siam, the predecessor of Thailand, and French Imperial powers.  (The majority of populations in Cambodia and Thailand practice syncretic Buddhism, which incorporates elements of Hinduism and popular religions.)

After Cambodia’s independence from France in 1953, Thai troops occupied Preah Vihear.  In 1962, Cambodia applied to the ICJ to determine which country was sovereign over Preah Vihear.  The ICJ ruled the Preah Vihear Temple to be within the sovereign territory of Cambodia and thus subject to Cambodian control.  However, access to the Temple was nearly impossible from the Cambodian side.  The Thailand side of the border, however, provided direct access to the Temple.  Cambodia has permitted regular access from the Thailand border to Preah Vihear without a visa, provided visitors do not go beyond the Temple.

Since the ICJ 1962 judgment, nationalist movements in Thailand and Cambodia have gained in popularity and moved toward cultural homogeneity within their borders.  In 2008, Cambodia applied to the UNESCO World Heritage Centre to have Preah Vihear inscribed as a World Heritage Site.  Thailand, believing that the two countries should jointly manage Preah Vihear, protested Cambodia’s unilateral application by withdrawing from the World Cultural Heritage Convention.

Low-level border disputes in 2008 continued to escalate and in 2011 the disputes erupted into more intense violence resulting in at least 18 deaths and thousands of displaced civilians along the border.

So, while Cambodian and Thai religious beliefs are more alike than different, the Preah Vihear Temple has become a point of pride for nationalists within both countries.

The Order

Cambodia brought an application to the ICJ under article 60 of the Court’s charter, which permits the court to interpret “the meaning of scope of [a previous  judgment],” in this case the 1962 ICJ judgment. Specifically, Cambodia asked for clarification on the meaning of the ICJ’s order for Thai troops to withdraw from areas “within the vicinity of Preah Vihear.”

The ICJ ordered provisional measures on Cambodia’s application and created a DMZ at Preah Vihear as well as within the borders of Thailand and Cambodia.   Five judges dissented because the provisional measures ordered by the Court went beyond the issues presented in Cambodia’s application and created a DMZ in territories not in dispute.

The scope of the ICJ’s provisional measures can be explained by the unique status of the Preah Vihear Temple and its importance to human rights.

Analysis

The ICJ provisional measures should be read in the context of the Convention Concerning the Protection of World Cultural and Natural Heritage (“the UNESCO Convention”) and the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (“the 1954 Hague Convention”).

The UNESCO Convention recognizes “the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,” and seeks to protect monuments and sites of “outstanding universal value.”  By inscribing World Heritage Sites, UNESCO brings those sites under the protection of the UNESCO Convention.  Moreover, Article 6(1) of the UNESCO Convention reads:

“Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”

The 1954 Hague Convention reiterates to sanctity of cultural property “to all mankind” and requires state parties to “refrain[ing] from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.”

The Conventions are in direct opposition to both Cambodian and Thai government claims and conduct.  Both sides use Preah Vihear as a symbol to enflame nationalist feelings as a part of the larger border dispute.  Both sides have also inflicted incidental damage on the Temple with bullets and mortars.

But because of Preah Vihear’s inscription under the Convention, its value cannot be reduced to competing Cambodian and Thai claims.  Instead, the value of Preah VIhear is universal for all people – Thai, Khmer, French, South African, etc.  Both Cambodian and Thai armed forces have an obligation to refrain from use of cultural property, which will endanger the property to destruction or damage.

The status of Preah Vihear as an UNESCO World Heritage Site, protected by both the UNESCO Convention and the 1954 Hague Convention, justifies the ICJ’s creation of a DMZ that reaches into the borders of Cambodia and Thailand.  While this decision clearly protects the Preah Vihear, it also protects the human right to cultural heritage.

Article 27 of the Universal Declaration of Human Rights states:

“(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

Because of the universal value of the Preah Vihear, the right to share in the benefits of Preah Vihear is a right of all people.  While the DMZ around Preah Vihear in Cambodia and Thailand protect this human right for the time being, the ICJ’s opinion also points toward an internationalization of the area in order to protect both the Temple itself as well as the human right to enjoy the cultural benefits of the Temple.

The unique location of the Temple means it is most easily accessed from the Thai side of the border, even though the Temple remains on Cambodia territory.  So, it is likely that any long-term solution to the border dispute, which protects the Preah Vihear and the human right to access the Temple, will require an internationalization of Preah Vihear and the area surrounding it.   Officials of the Association of Southeast Asian Nations (“ASEAN”) have tried to negotiate an international zone before and Thailand has similarly made motions toward internationalization of the area.  It is clear that the ICJ’s preliminary measures push Cambodia and Thailand toward the negotiating table for internationalization of the area.  Moreover, the preliminary measures not only move toward the internationalization of the Preah Vihear Temple area, but also subordinate state claims of Cambodia and Thailand in favor of protecting the universal human right to cultural heritage.

For more information, please read the following:

Thailand to Comply With Cambodian Temple DMZ Imposed by UN, Bloomberg, July 18, 2011.

Popularity: 8% [?]

By now, nearly everyone with access to cable has either seen or heard of TLC’s latest “documentary,” My Big Fat Gypsy Wedding.  Originally broadcast on Britain’s Channel 4, TLC boasts that American audiences can now watch the “secret” and “outrageous” lives of Gypsies unfold.

When I first learned that TLC was to air this program, I was horrified, as anyone who reads my blog knows that the plight of Europe’s Roma is very close to my heart.  Initially, I intended to boycott the show entirely as well as write a letter to TLC to express my outrage with the network’s decision to air a program that glorifies stereotypes and misconceptions about Europe’s most discriminated minority group.  However, after considering it might be unfair to criticize the show before watching at least one episode, I decided to hold off on the letter and temporarily rescind my personal boycott.  Now, after watching three full episodes, I feel better equipped to voice my views concerning TLC’s “newest smash hit.”

Much like a car wreck from which you cannot look away, My Big Fat Gypsy Wedding is undeniably mesmerizing.  All of the racial archetypes surrounding the Roma are present – exotic girls dancing seductively to fast paced violin music in colorful “belly dancer-like” costumes, grown men fist fighting and playing dice in the street, and, in general, seemingly uneducated and low class people who inexplicably manage to have of loads of cash on hand for fast cars, extravagant weddings, and lavish first Communion celebrations.  One cannot help but marvel at the spectacle of it all, making it easy to forget that the program is, in actuality, an ignorant, incomplete, and grossly xenophobic caricature of “the Gypsy.”

What to expect when you watch:

Sadly, My Big Fat Gypsy Wedding gives viewers a very limited and exaggerated perspective into the lives of the UK’s Gypsy and Travelling communities.

Within the first minute of the premiere episode, the narrator sets the scene very melodramatically, indeed, explaining to viewers that they will soon be granted access into Britain’s “most secretive community.”  This “us versus them” attitude only advances negative attitudes towards Gypsies and puts viewers on notice that the people they are about to encounter must be very mysterious and cannot be trusted.  A non-Gypsy woman who is a bridal dressmaker specializing in Traveller weddings goes on to explain, “[Travellers] don’t like anyone knowing anything about them at all.”  (The dressmaker appears numerous times each subsequent episode, ostensibly the “documentary’s” resident expert on all things “Gypsy,” providing her insight on Traveller culture and beliefs.)  Finally, after a long series of clips showing scantily dressed teenaged Gypsy girls writhing around on dance floors and literally walking the streets, the narrator very seriously explains that, “the show will explore every aspect of Gypsy life.”  (Here it is important to note that My Big Fat Gypsy Wedding focuses almost exclusively on Irish Travellers, which is a group separate and distinct from Roma Gypsies.  While the program does identify the two groups, it provides no explanation as to the reasons for the difference, so Romani Gypsies and Irish Travellers are thus lumped together, leaving viewers with the impression that the two are indistinguishable.)

My perspective on the show:

Ironically, a Gypsy or Traveller who is interviewed within the first two minutes of the premiere episode best states my opinion of the program, though the quote is meant to promote the show:

“Ninety-five percent of people in this world have had no contact with [Gypsies], and they don’t know anything about them.  The only information they have on Gypsies is what certain tabloids write about them, or what certain television programs put on about them, and that’s the only information.  Ninety-nine percent of it is a load of nonsense.”

Certainly, after having watched My Big Fat Gypsy Wedding, I would have to agree with the show’s own assertion.  Ninety-nine percent of it is a load of nonsense.

Each episode begins in relatively the same way.  Viewers are introduced to a young Gypsy or Traveller girl, who is portrayed as a virginal seductress though totally powerless and without control over her own life.  Beautiful yet pitiably uneducated, she prepares to marry and move hundreds of miles from the only family she has ever known only to cook, clean, and submit to the will of her soon to be husband.  She is innocent and chaste before marriage yet dresses like a Vegas prostitute.  From childhood, she has dreamt of her wedding day and it consumes her thoughts.  Though she may be somewhat disenchanted by the drudgery of her everyday life, she is nonetheless acquiescent and rarely questions her role in society.

On the other hand, the young Gypsy man is street smart and tough; a hustler who has a lot of cash available even though he is a laborer or migrant worker.  He does not have to answer to anyone and can come as go as he pleases.  He is brash and bold and enjoys drinking and fighting.  From childhood, he was taught to settle his scores “like a man.”  He wears “wife beaters” and baggy pants, has slicked back hair and may be heavily tattooed.  He is worshipped by his mother and female family members and will be the adoration of his future wife. (Of course, there are a few deviations from this basic premise, but each episode can guarantee these characterizations.)

The real “Gypsy Experience:”

What is particularly disturbing about My Big Fat Gypsy Wedding is that this program is, in most cases, the first and only experience American viewers have with the Roma community.  Because Gypsies live primarily in Eastern and Central Europe, American audiences are largely unfamiliar with the plight of Europe’s Roma and have little knowledge of the group’s long and painful history, which is marred by persecution, violence, slavery and genocide.  The treatment they suffer is tantamount to the persecution that African Americans in the US suffered leading up to the Civil Rights Movement.  Once slaves to Eastern Europe’s elite, today’s Roma continue to be victims of race-based violence including beatings and murders, as well as employment and housing discrimination, forced sterilization, extreme poverty and school segregation (as was the case in Oršuš and Others v. Croatia). This past summer, France and Italy implemented controversial Roma expulsion policies, which were hotly debated by world leaders as possible human rights violations.  (SeeFrance begins controversial Roma expulsion, CNN Aug. 2010)

Perhaps the only redeeming aspect of My Big Fat Gypsy Wedding is the account of the perspectives of the Irish Travellers, especially the children, as state authorities bulldoze their trailer homes. Still, such a serious subject is sensationalized.  At one point in the opening scene, the narrator asks, “Gypsies are fighting for their very survival, but how long can the party last?” as young Gypsy girl gyrates across the screen to quick violin music.

Comparisons

My Big Fat Gypsy Wedding has been compared to MTV’s Jersey Shore , which is outrageous and highly entertaining, but certainly not an accurate depiction of the majority of Italian-Americans.  While I am inclined to agree with that characterization to a certain extent, the fact remains that the ramifications of a program like My Big Fat Gypsy Wedding further exacerbate the already dire situation of Europe’s Roma, who are, in reality, concentrated in Eastern and Central Europe. Frankly, I see little difference between a program such as My Big Fat Gypsy Wedding and the minstrel shows of America’s past, which exploited African American culture by perpetuating unfair stereotypes and misconceptions about a group that continues to face discrimination.

Jane Jackson, deputy chief executive of the Rural Media Company, a charity that publishes the Travellers’ Times, had this to say about the show when it first aired on Britain’s Channel 4.

“It’s posing as a documentary.  The voiceover is saying we’re going to let you into the secrets of the traveller community – and it just not true.  It might be true of the particular families in front of the camera, but it’s not generally true. It just confirms prejudices that Travellers are just people who choose not to live in houses.”

Certainly, one would hope that a program like My Big Fat Gypsy Wedding – one that blatantly promotes extreme prejudices and stereotypes about a maltreated minority group that continues to face persecution – would not be tolerated, especially here in the United States.

(Note:  The two-hour premiere of My Big Fat Gypsy Wedding, which aired on June 3 on TLC, delivered 2.2 million viewers and earned the night’s top slot.  Since, then, viewership has increased. See (Ratings – TLC Starts Summer Strong With “My Big Fat Gypsy Wedding” )

What you can do to support protests of My Big Fat Gypsy Wedding:

Boycott Advertisers:  http://thegypsyconnection.blogspot.com/2011/06/help-support-protest-of-my-big-fat.html

How and why you should protest My Big Fat Gypsy Wedding: https://apps.facebook.com/causes/posts/790204

For UK readers:  File a programme complaint with Ofcom:  http://consumers.ofcom.org.uk/tell-us/tv-and-radio/a-specific-programme/

Stop Gypsy Persecution on Facebook:  http://www.causes.com/causes/170001-stop-gypsy-persecution

VISIT:  National Romani Anti-Discrimination Organization http://www.nrado.com

Popularity: 19% [?]

On March 22, 2011, the European Court of Human Rights in Strasbourg, France held a Chamber hearing in the case of V.C. vs. Slovakia concerning a Roma woman who alleges she was forcibly sterilized by a Slovakian state hospital.  While Roma women have made claims of forced and coercive sterilizations by Eastern European countries for decades, this is the first case of its kind to reach Strasbourg.

Case Facts:

V.C. is a Roma woman and Slovakian national from Šarišská Poruba, Slovakia.  At the time of the sterilization, she was approximately twenty years old.  She has a sixth grade education and is unemployed.

According to her complaint, V.C. gave birth to her second child in 2000 via caesarian section at the Slovakian Ministry’s University Teaching Hospital in Presov.  While hospitalized at Presov, V.C. alleges that she was segregated because of her ethnic origin and placed in a “Gypsy room,” which was separated from the white patients.  It is also alleged that she was made to use separate bathroom facilities.

Hospital records indicate V.C. requested to be sterilized after being told by physicians that a third pregnancy would likely result in a ruptured uterus.  However, V.C. claims that the sterilization procedure was performed without her full and informed consent.  She alleges that while in the pain of the final stages of labor, doctors asked her if she wanted to have more children.  After responding in the affirmative, she was then informed that if she had another child, it would die.  V.C. states that it was at that time when she signed the consent form, without having knowledge or understanding as to the consequences of sterilization.  (See European Court of Human Right’s 2009 decision as to the admissibility of V.C.’s 2007 application)

V.C. claims that her ethnic origin played a key factor as to the way in which she was handled and the medical advice and treatment she received.  The Slovakian government denies all of the allegations, stating that V.C. was treated in the same manner as the white patients and that the medical advice provided was not based upon her ethnicity or skin color.

In 2006, V.C. filed civil complaint against the hospital staff, but ultimately the Presov Regional Court dismissed it on appeal.  The Court found that the sterilization was lawfully done, that it was a medical necessity and that V.C. had given her consent.

As indicated in the European Court of Human Rights’ Press Release issued by the Registrar of the Court on March 22, 2011, “[t]he applicant’s sterilisation has had serious medical and psychological after-effects. Notably in 2007/2008 she showed all the signs of being pregnant but was not (known as a “hysterical pregnancy”). Treated since 2008 by a psychiatrist, she continues to suffer from being sterilised. She has been ostracised by the Roma community and her current husband has left her several times due to her infertility.”

Slovakia’s History of Forced Sterilizations:

The practice of “Roma sterilization” dates back to the 1970’s when the Communist regime in Czechoslovakia regularly used forced or coercive sterilization measures to “control” the Roma population.  Roma women who participated in the procedures were given a government financial incentive as encouragement.

According to written comments submitted in 2009 to the UN’s Committee Against Torture by the Centre for Civil and Human Rights, “60% of the sterilisation operations performed from 1986 to 1987 were on Romani women, who represented only 7% of the population of the district. Another study found that in 1983, approximately 26% of sterilised women in eastern Slovakia (the region where the Applicants reside) were Romani women; by 1987, this figure had risen to 36.6%.  In 1992, a report by Human Rights Watch addressed the practice of coercive sterilisation in Czechoslovakia, noting that many Romani women were not fully aware of the irreversible nature of the intervention and was forced into it because of their poor economic situation or pressure from authorities.”  (also citing Statistical Evaluation of the Cases of Sexual Sterilisation of Romani Women in East Slovakia, 1990)

Although the Communist regime collapsed in the early 1990’s, the sterilizations continued.  Procedurally, they varied from hospital to hospital but the results were the same.  According to a 2001 Open Society Institute report, Finnish nurses noticed unusually high occurrences of sterilization and ovary removal in female Roma asylum seekers from Slovakia seeking refuge in Finland.

The “Body and Soul Report”

Perhaps the most influential and widely circulated report concerning the forced sterilization of Roma women in Slovakia came in 2003 when the Center for Reproductive Rights released Body and Soul:  Forced Sterilization and Other Assaults of Roma Reproductive Freedom.  For three months, the Center for Reproductive Rights, based in the United States, and the Centre for Civil and Human Rights, based in Slovakia, conducted interviews with more than 230 Roma women throughout eastern Slovakia.  “The interviews revealed numerous instances of coerced, forced and suspected sterilization of Romani women, along with physical and verbal abuse, racially discriminatory standards of care, misinformation in health matters, and denial of access to medical records.”  The Report culminated in a criminal investigation into the sterilization of Roma women.  However, it was eventually discontinued on the grounds that no wrongdoing had been committed.

The following 2003 documentary from Journeyman Pictures provides a comprehensive overview of the recent history of forced sterilization of Roma women in Slovakia.  Slovakian human rights attorney Barbora Bukovska, who gave comments in Strasbourg last month and who has been instrumental in bringing such cases to light, is highlighted in the film.

Access to Medical Records - K.H. and Others vs. Slovakia

Perhaps one of the most difficult hurdles Roma women faced in filing suit against state hospitals for forced sterilization was gaining access to their own medical records.  In 2002, eight Roma women in Slovakia attempted to retrieve their medical records after finding they were unable to conceive after undergoing caesarian sections.  The women wished to establish cause as to why they were unable to conceive.  After the hospitals refused to release their records, the women filed a civil suit in Slovak court.  However, their requests were denied and the Court held that the records were the property of the hospitals and not the women.

In 2004, the eight women filed suit against the hospitals with the European Court of Human Rights.  In April 2009, the Court ruled that denying the women access to their medical records was in violation of Article 6 paragraph 1 and Article 8 of the European Convention on Human Rights. Specifically, the Court held that access to medical records is a right to private and family life and that those persons wishes to make photocopies of their own medical records should be allowed to do so without providing reason as to their purpose or objective.  The applicable articles of the European Convention on Human Rights states:

Article 6 paragraph 1:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 8:

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Human rights attorney Barbora Bukovska said this in response to the ruling:

“This case indicates the complicity of the Slovak Government in the practice of forced sterilization of Romani women.  Originally, in spring of 2002, we were able to access and copy medical records of our clients. But as soon as the hospitals realized we were seeking access to medical records on forced sterilizations, they halted the access. The Slovak Government, instead of rectifying the situation, supported the hospitals in their position and over the years, denied their responsibility for the violations. All of this in order to prevent forcibly sterilized Romani women from finding truth about their sterilization surgeries and seeking compensations for them.”  (See Press Release, Centre for Civil and Human Rights, April 2009)

A.S. vs. Hungary

While V.C. vs. Slovakia is the first case of forced sterilization against Roma women to be heard by the Human Right’s Court, legal precedence nonetheless exists.  In 2004, A.S. vs. Hungary was submitted to the UN’s Committee on the Elimination of Discrimination against Women (CEDAW) alleging that a Hungarian Roma woman was forcibly sterilized in a Hungarian hospital while being treated after her unborn child died in the womb.  According to its findings communicated in 2006, CEDAW found that the woman signed a consent form to perform a caesarian section to remove the dead fetus, but that included within the consent form was a “barely legible” handwritten note that read:

“Having knowledge of the death of the embryo inside my womb I firmly request my sterilization.  I do not intend to give birth again; neither do I wish to become pregnant.”

After the procedure but before leaving the hospital, A.S. asked the doctor when she could try to have another baby.  “It was only then when she was informed as to the meaning of “sterilization.”’  (See CEDAW’s findings, 2006.)

Ultimately, CEDAW found that Hungary violated Convention on the Elimination of All Forms of Discrimination against Women, specifically articles 10 (h), 12 and 16 paragraph 1 (e) which state:

Article 10 (h):

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:

(…)

(h) Access to specific educational information to help to ensure the health and well being of families, including information and advice on family planning.

Article 12:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health- care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connexion with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Article 16, paragraph 1 (e):

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(…)

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

United States’ response:

In regards to forced and coercive sterilization, Chairman of the Helsinki Commission, United States Congressman Christopher Smith (R-NJ) stated, “as a matter of justice for the victims and truth about the past due to all the people of Slovakia this practice should be condemned as a grave human rights violation.”

The European Court of Human Rights is not expected to rule in the matter of V.C. vs. Slovakia for several weeks.  After their decision, either side may appeal the seven-judge ruling to the Court’s Grand Chamber.

For more information, please read the following article on NPR:  Court Hears Claim of Forced Roma Sterilization, Associated Press.

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Early last week, Hong Kong’s Immigration Department denied the temporary employment visas of several key Shen Yun crew members, resulting in the forced cancellation of Shen Yun’s Hong Kong shows. Understandably, this information was extremely disappointing, not only for Shen Yun’s cast and crew, but also for the people of both Hong Kong and mainland China, who viewed the upcoming shows as a positive step in bringing freedom of expression through classical Chinese music and dance back to China. These visa denials come at a very pivotal time, as pro-democracy protests in Hong Kong reached new heights this month.

This past Wednesday, I had the opportunity to cover two emergency conferences held in Washington, DC regarding the implications of this surprise decision, during which several United States Congressmen voiced their concerns over the visa denials and the continued suppression of artistic freedom and human rights by the Chinese Communist Party.

If you would like to learn more about Shen Yun’s visa denials and read what the Congressmen had to say, please read the following article that I wrote on Examiner.com, which covered the media conference at The National Press Club and the congressional conference on Capitol Hill.

Suspicion surrounds forced cancellation of Shen Yun’s Hong Kong shows

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