The European Court of Human Rights recently handed down its decision on admissibility in the case of MA and Others v France. The case is being brought by 261 applicants (of a wide range of nationalities, all of whom are prostitutes) who wish to challenge the French law 2016-444 of 2016, which amongst other things makes the purchasing of sex unlawful. (A helpful English language overview of this law, provided by the United States’ Library of Congress, can be found here.) The Court has not made a decision about the merits of the case; this is in effect permission to go to a full hearing, although in providing this the Court recognises that there is a prima facie argument to be made that a law banning the purchasing of sex is incompatible with the European Convention.
There is a huge amount to say about this litigation in itself and what it reveals about the way human rights law has developed. Much of this will have to wait for future posts, however. Here, I will confine my observations to a broader issue, onto which the case opens a window: human rights advocates – certainly in official UN fora and in the major human rights NGOs – seem to have become very interested in the cause of decriminalising and ultimately normalising the marketisation and commodification of sex. And, as we will see, this brings to the surface a decay at the heart of the system of international human rights law, demonstrating as it does that people who run this system seem to be increasingly contemptuous of the notion that law might have an existence independent of politics.
The case of MA and Others v France originally came to my attention because, as a seasoned observer of the UN human rights ecosystem, I was perusing press releases of some of the Special Rapporteurs. (You can think of these as official UN-appointed chief human rights activists, who are usually given a particular remit about which they produce reports and guide UN strategy.) The UN Special Rapporteur for (deep breath) the right of everyone to the enjoyment of the highest attainable standard of physical and mental health is Tlaleng Mofokeng, a likeable and charismatic South African medical doctor who has gained a certain level of fame as a ‘thought leader’.
You might have expected Mofokeng to be chiefly interested in subjects like malaria, malnutrition and so on, or perhaps the youth mental health crisis. But her main strategic priorities (laid out in her first report as Special Rapporter), apart from eliminating racism and colonialism, essentially concern sex: sexuality, gender-based violence and femicide; sexual and reproductive health; sexual and reproductive health and digital interventions; and reproductive cancers. Mofokeng – the author of Dr T: A Guide to Sexual Health and Pleasure – is also heavily involved in the push towards Comprehensive Sexuality Education that is taking place across the UN human rights system, which aims to “equip young people with knowledge, skills, attitudes and values for positive sexuality and good sexual and reproductive health” while – inevitably – addressing “patriarchal domination and toxic masculinity” and, er, “recognising the ‘evolving capacities’ of adolescents to make their own decisions”. And, it turns out, she submitted a written intervention in the case of MA and Others v France back in August 2021, around a year after taking office.