Checking the facts about the March 8 Principles by the International Commission of Jurists (ICJ)

By Rebecca Oas, Ph.D. | April 20, 2023

There has been a lot of coverage recently about a set of legal principles published by the International Commission of Jurists (ICJ) titled “The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty,” published on March 8, 2023, which is International Women’s Day.

Among the things being reported are that this is a UN document, and that it seeks to normalize sex with minors.  Let’s examine these claims:

Is this a UN document?

No.  The principles were published by the ICJ, which is a nongovernmental organization (NGO).  It contains a list of supporters and endorsers, which includes a handful of other NGOs and several individuals, some of whom have current or former affiliations with UN entities, but who are endorsing the document solely in their individual capacity.  (Among them are Luisa Cabal, who is affiliated with UNAIDS and Patricia Schulz, who is affiliated with the United Nations Research Institute for Social Development.)

Is this document endorsed by the UN or its agencies?

No UN agencies are listed among the first supporters or endorsers listed on the document itself.  However, a side event sponsored by several UN agencies was held at UN headquarters in Geneva on March 8 to launch the principles.  This includes the UN Office of the High Commissioner for Human Rights (OHCHR) (the High Commissioner Volker Türk himself was a panelist), UNAIDS, the World Health Organization, and the United Nations Development Programme (UNDP).  Furthermore, the principles cite a 2018 expert meeting of the ICJ, the OHCHR, and UNAIDS as the genesis of the project.  So, while the document does not currently have an official endorsement by any UN agencies, several UN agencies participated in its public launch and lent additional weight and publicity to it.

Do the March 8 Principles endorse, promote, or normalize sex with minors?

On April 20, 2023, the ICJ published a statement denying these claims:

“The 8 March Principles do not call for the decriminalization of sex with children, nor do they call for the abolition of a domestically prescribed minimum age of consent to sex. Indeed, the ICJ stresses that States have a clear obligation under international law to protect children from all forms of abuses, such as child sexual abuse, including through the criminalization of such conduct.”

While some media outlets have resorted to hyperbole in covering the principles, others have been more nuanced, pointing out that while they do not actively call for decriminalizing sex between adults and minors, they do contain language that could be interpreted as undermining such laws.  For instance:

“Emphasizing that, with respect to the application of criminal law in connection with consent, international human rights law requires paying due regard to: […] adolescents’ evolving capacity to consent in certain contexts, in fact, even if not in law, when they are below the prescribed minimum age of consent in domestic law.”

and

“Moreover, sexual conduct involving persons below the domestically prescribed minimum age of consent to sex may be consensual in fact, if not in law. In this context, the enforcement of criminal law should reflect the rights and capacity of persons under 18 years of age to make decisions about engaging in consensual sexual conduct and their right to be heard in matters concerning them. Pursuant to their evolving capacities and progressive autonomy, persons under 18 years of age should participate in decisions affecting them, with due regard to their age, maturity and best interests, and with specific attention to non-discrimination guarantees.”

The repeated use of the phrase “in fact, if not in law” is clearly intended to argue for laws prohibiting sex with minors to be enforced more leniently—if at all—in certain instances, where the argument could be made that the minor’s “evolving capacities” render him or her effectively, if not legally, able to give consent.  These passages notably omit any mention of whether the sexual activity involving a person under the age of 18 involves a fellow minor or a person who might be significantly older.

The ICJ statement condemns “child sexual abuse,” yet it makes the argument that sex with persons under 18 may not constitute abuse if that person’s “capacities” can be said to have sufficiently “evolved.” In such cases, not only does the ICJ argue that criminal law should be applied more leniently, but they argue that international human rights law demands nothing less.

Apart from the age-of-consent issue, do the March 8 principles contain other controversial recommendations?

Yes.  The principles also insist that abortion be decriminalized in all cases:

“Criminal law may not proscribe abortion. Abortion must be taken entirely out of the purview of the criminal law, including for having, aiding, assisting with, or providing an abortion, or abortion-related medication or services, or providing evidence-based abortion-related information.”

It also calls for the decriminalization of all consensual sexual activity, including same-sex acts, extramarital sex, and prostitution.

How influential is this document?

On its own, it carries no legal weight, as it is a set of recommendations published by an NGO with no power to enforce it.  However, its endorsement by a collection of prominent jurists gives it a certain amount of credibility, and the high-level launch event featuring multiple UN agencies also elevates its prominence.

A useful comparison might be made to the Yogyakarta Principles, which were also developed at a meeting of the ICJ and other NGOs and launched at the UN Human Rights Council in 2006.  The Yogyakarta Principles argue for issues of sexual orientation and gender identity to be incorporated throughout human rights standards.  While the Yogyakarta Principles have never been adopted by any international consensus (and reports mentioning them have been highly controversial when presented to the Third Committee of the UN General Assembly), reports from other UN entities, including the OHCHR, have cited them.

In a similar way, UN member states who oppose the creation of new categories of sexual orientation and gender identity in international human rights law, who affirm that abortion is not and has never been an international human right, and who object to the normalization of sex involving minors, will need to be vigilant in the General Assembly and Human Rights Council to oppose any mention of these new March 8 Principles in any negotiated text, including the rejection of any endorsement of documents generated by other sectors of the UN that might cite them.

Contestation is key to ensuring that these controversial principles are not seen as creating—or contributing to the creation of—harmful new norms in international human rights law.

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