WHAT MAKES LIFE MEANINGFUL IS LOVE: INDIA DECRIMINALIZES GAY MARRIAGE

In a surprising decision, India’s top court has legalized gay sex partially striking down Section 377 of the Indian Penal Code, a 158-year-old colonial-era law. The law criminalized intercourse “against the order of nature,” which was taken to mean same-sex relations even between consenting adults, and imposed a punishment of up to 10 years in prison. The judgment included not only decriminalization and an apology, but also recommendations for workshops in schools and police stations across India to try and change public perceptions of the LGBTQ community.

Although Section 377 was not often enforced, Arif Jafar, one of the petitioners whose case the Supreme Court ruled on, was arrested in 2001 under Section 377 and spent 49 days in jail. In the momentous decision, Justice Dhananjaya Y. Chandrachud wrote: “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane.”

Hinduism has traditionally maintained a flexible, non-prescriptive view of sexuality. However, in recent years hardline Hindu groups had taken a more conservative approach. Opposition to moves to overturn Section 377 had rested predominately on moral and religious objections. Furthermore, the Indian government had left the decision regarding the legality of Section 377 to the Supreme Court, saying it would neither fight nor directly support the five lead petitioners asking for Section 377 to be reconsidered.

The movement to decriminalize Section 377 has endured a long and arduous road. In 2009, the Delhi High Court ruled that the ban on consensual gay sex violated fundamental rights. However, the decision, which only applied to the Delhi region, was quickly overruled by the Supreme Court in 2013, following a petition launched by a loose coalition of Christian, Hindu and Muslim groups. In its 2013 ruling, the Supreme Court said that only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and it was therefore “legally unsustainable” to repeal the act. Yesterday’s decision was a relief to those advocating for LGBTQ rights around the world.

Although this is a step in the right direction, the decision only decriminalizes sexual acts; India still does not permit same-sex couples to marry, adopt or inherit property. Now the broader issue of equality needs to be addressed as well as the need for further legal protections and rights for the LGBTQ community— such as rights to marriage and adoption.

 

 

 

Nuclear Testing, International Law and North Korea

A nuclear test can be defined as a nuclear explosion detonated for either military or peaceful purposes. The history of nuclear testing began on 16 July 1945 at a desert test site in New Mexico, when the United States exploded its first atomic bomb. This initial test was the culmination of years of scientific research under the banner of the so-called the “Manhattan Project”.

A few months later, on 6 August 1945 a US B-29 bomber dropped an atomic bomb on the Japanese city of Hiroshima, instantly killing around 80,000 people. Three days later, a second bomb was dropped on Nagasaki, causing the deaths of 40,000 more. In the months following the attack, roughly 100,000 more people died slow, horrendous deaths as a result of radiation poisoning. The dropping of the bombs remains the only nuclear attack in history.

Efforts to Control Nuclear Power

Around the mid-1950s, in the midst of the arms race of the Cold War, the United States and the Soviet Union started conducting high-yield thermonuclear weapon testing in the atmosphere. In 1959, radioactive deposits were found in wheat and milk in the northern United States. As scientists and the public gradually became aware of the dangers of radioactive fallout, they began to raise their voices against nuclear testing, leading to the Partial Nuclear Test-Ban Treaty (PTBT) signed in 1963. Representatives of the United States, the Soviet Union, and Great Britain signed the PTBT, which prohibited the testing of nuclear weapons in outer space, underwater, or in the atmosphere.

In 1968 the Nuclear Non-Proliferation Treaty (NPT) was adopted. The NPT is a worldwide treaty that bans all members except the United Kingdom, China, France, Russia, and the United States from having nuclear weapons and commits those five states to eventually eliminating their atomic arsenals. The 187 states that subscribe to the NPT include every significant nation state with the exception of India, Israel, Pakistan, and North Korea.

The latest international law development in efforts to ban nuclear testing took place in 1996 with the opening for signature of the Comprehensive Nuclear-Test-Ban Treaty (CTBT). The CTBT established a de-facto international norm on nuclear testing, banning all nuclear explosions in all environments, for military or civilian purposes. To date 159 states have signed and ratified the CTBT, including the three nuclear weapon states, France, the United Kingdom and Russia. Another 24 states have signed but not ratified it, including the United States.

The CTBT treaty shall enter into force 180 days after the 44 states listed in Annex 2 of the treaty have ratified it. These “Annex 2 states” are states that participated in the CTBT’s negotiations between 1994 and 1996 and possessed nuclear power reactors or research reactors at that time. As of March 2013, eight Annex 2 states have not ratified the treaty. China, Egypt, Iran, Israel and the United States have signed but not ratified the treaty; and India, North Korea and Pakistan have not signed it. In 1998 India said it would only sign the treaty if the United States presented a schedule for eliminating its nuclear stockpile, a condition the United States rejected.

Threats to Non-Proliferation

In the last few years, uranium enrichment, plutonium separation, and other possible nuclear weapons-related activities have been discovered in Iraq, North Korea, and Iran. Moreover, it appears that North Korea and Iran both obtained enrichment technology from Pakistan, which suggests dangers to the NPT regime from nonparties that are not bound by the treaty’s prohibition against assisting non-nuclear-weapon states in acquiring nuclear weapons.

At the same time, the United States has not complied with some of its own NPT-created obligations. The United States Senate has consistently rejected ratification of the CTBT, which reflects its tendency to downgrade treaties and regimes and to upgrade unilateral efforts, such as the pre-emptive use of force against Iraq, to enforce compliance with nonproliferation. Furthermore, the US has undertaken efforts to create new types of nuclear weapons that might well require new testing. Thus, while pushing other countries to reject the acquisition of nuclear weapons for their defense, the United States seems to be relying ever more heavily on nuclear weapons for its own defense.

North Korea

In the last few weeks, Security Council resolutions have condemned North Korea’s December rocket launch and have tightened the existing punitive sanctions against that country.  North Korea’s first nuclear test took place in October 2006 and a second test took place in May 2009. North Korea has threatened nuclear strikes on the US, formally declared war on the South, and pledged to reopen a nuclear reactor in defiance of UN Security Council resolutions. The latest warning from North Korea was directed to foreign embassies in Pyongyang stating that it cannot guarantee their safety from the threat of conflict after 10 April, and has advised them to consider pulling their staff out of the capital.

Most experts opine that North Korea does not have the capability to launch a nuclear attack. Officials in Washington have dismissed North Korea’s most serious threat of a nuclear strike against the US, as bluster by its leader, Kim Jong-un. The Pentagon assessment is that North Korea has not yet mastered the technology needed to accurately fire a nuclear-armed missile. However, even if the actual risk of a nuclear attack from North Korea is inexistent, the situation at hand poses certain important questions regarding nuclear proliferation:

-Is the US justified in expecting Pakistan, North Korea and India to abide by the Non Proliferation regime while ignoring Israel and China’s continued nuclear capabilities?

-Given that the United States has conducted 1,030 nuclear tests — more than all other nations combined — and continues refusing to destroy its nuclear stockpile,  is it fair to prohibit testing in other countries? Does this double standard perceived by other nations constitute a threat to the NPT regime?

-Is it fair to permit many of North Korea’s neighbors and the United States to test and possess missiles and develop other advanced military hardware but to prohibit North Korea from doing the same?

-Is the international community effective in preventing nuclear proliferation?

 

Tragedy in a Bus: Let’s Work for a New Year of Greater Human Rights’ Protection for Women Around the World

It is sad that this first post of the year is about the brutal killing of a young woman in New Delhi. However, a saying attributed to Buddha states that: “[t]here are only two mistakes one can make along the road to truth; not going all the way, and not starting.” We better start recognizing fairly quickly the obvious truth that we, as a society are failing women, and that we have a moral and legal obligation to do better.

As the world knows, on Dec. 16, a 23-year-old woman and her male friend were returning home after watching a movie at a mall in southwest Delhi. After they boarded what seemed to be a passenger bus, the six men inside gang-raped and tortured the woman so brutally that her intestines were destroyed. The attackers also severely beat up the woman’s friend and threw them both from the vehicle, leaving her near death, and her friend with severe injuries. On Saturday morning, 13 days after she was brutalized, she died of multiple organ failure.

Shortly after the attack, tens of thousands of people took to the streets and faced down police officers, tear gas and water cannons to express their outrage. It was the most vocal protest against sexual assault and rape in India to date, and it set off nationwide demonstrations. The protesters took to the streets outraged about the lack of legal protection for women’s rights in the largest democracy in the world.

Although India has laws against rape; seats reserved for women in buses, female officers; and special police help lines, these measures have proven ineffective in the face of a patriarchal and misogynistic culture. It is a culture that believes that the worst aspect of rape is the defilement of the victim, who will no longer be able to find a man to marry her, and where the solution is often for the victim to marry the rapist. The rapists are obviously at fault in these cases, but those who blame women who are victims of rape, or do nothing to protect them, are accomplices in the victimization.

In 2012, of the more than 600 rape cases reported in Delhi, only one led to a conviction. Police officers, politicians, diplomats, heads of States, and regular people in the street who turn the other way are contributing to the problem.  Victims often believe they will not receive justice, and that they will be shunned if they report the rape; and the lack of convictions for rape support their belief. Rapists do not fear the consequences of their actions, because often their actions carry no consequences.

The volume of protests in public and in the media has made clear that the attack was a turning point and hopefully this horrendous tragedy will lead to more stringent laws that protect women. In Geneva, Navi Pillay, the U.N. Commissioner on Human Rights, called Monday for fundamental change in India: “Let us hope that 2013 will be the year the tide is turned on violence against women in India and all women can walk free without fear. … The public is demanding a transformation in systems that discriminate against women to a culture that respects the dignity of women in law and practice,” said Pillay.

I call for fundamental change not just in India but also everywhere in the world in the protection and respect for the victims of rape and other gender violence. I hope that this tragedy will be a catalyst for change in women rights around that world and that what the victim of this horrible crime had to endure serves to prevent further suffering for other women.