3. UN Treaties and the Protection of Women’s Reproductive Health
The right to health, which includes reproductive health and access to family planning, is mentioned in a number of treaties. The first human rights treaty to articulate the right to health was the ICESCR, which, in addition to defining the right, lays out the steps necessary to realise it.44 The ICCPR, adopted in the same year as the ICESCR (1966) does not specifically refer to the right to health, but instead lays out certain other key rights that are relevant, including Article 6(1) on the right to life, Article 9(1) on the right to life, liberty, and security, and Article 17 on the right to privacy.45 The right of a woman to health and to information or advice on family planning is specifically addressed in the 1981 Women’s Convention,46 which currently has 177 state parties.47
The right to reproductive health under the Women’s Convention is defined more strongly than under any other international instrument: ‘[i]n addition to guaranteeing equality and the freedom to determine family size, CEDAW [the Women’s Convention] guarantees non-discrimination in access to health care, including information and advice on family planning.’48 Finally, the 1990 Convention on the Rights of the Child also refers to women’s right to health.49 This right is expressed in terms of the right of women to maternal health care services, a right intimately linked to the right to health for children.50
All of these above provisions reveal recognition by the international community of reproductive and sexual rights as fundamental human rights. In addition, these treaties can be used all together to protect and to promote women’s right to reproductive health. This paper, however, will focus only on one treaty, the ICCPR, and will analyze how the right to life [Article 6(1)] under the ICCPR can be used to promote women’s right to reproductive health.
There are several reasons why human rights advocates may prefer to turn to the ICCPR, in particular Article 6(1), when fighting for the implementation of reproductive rights, despite the previous statement that the Women’s Convention provides the strongest legal support for the right to reproductive health. First, the Women’s Convention remains a controversial treaty, although ratified by 177 countries, as opposed to the 151 countries that have ratified the ICCPR.51 This is because the ratifications of various provisions have come with numerous reservations and declarations. Out of the 177 countries that have ratified the Women’s Convention, 24 have made reservations with regards to Articles 11, 12, 14, or 16, which specifically express women’s rights to health and reproductive freedom.52 These reservations reveal that these 24 countries declare themselves not bound by the provisions in the Women’s Convention that protect women’s reproductive rights. For example, Algeria has made general reservations to several articles, including Article 16, with the comment that it shall only abide by these articles if they do not ‘contradict the provisions of the Algerian Family Code’.53 Given that the intention behind the Women’s Convention is partly to forbid and eliminate gender bias enshrined within statutes and other legislation affecting women, Algeria’s decision to exempt its Family Code from the scope of the Women’s Convention reveals an unwillingness to fully pursue gender equality in areas where it matters most. A second example is that of Egypt, which has made reservations to Articles 2 and 16 of the Women’s Convention,54 thereby declaring itself not bound by the general requirement in Article 2 to eliminate gender discrimination in laws and statutes, and the more specific requirement in Article 16 to eliminate gender discrimination within marriage. The reason given by Egypt is that these articles may conflict with Shari’a law. Article 2 calls for an end to gender discrimination in the law, and thus lays out the core foundation of the Women’s Convention. As a result, Egypt’s reservation to this article is an attack on this core foundation. If the Government of Egypt refuses to agree to the requirement to end discriminatory laws, then it may as well dismiss the Women’s Convention entirely. Furthermore, reservations that are contrary to the purpose of a treaty are generally not allowed, and thus the reservations of Algeria and Egypt are disturbing and unfortunate. By contrast, there have been no reservations made to Article 6(1) of the ICCPR.
Second, there is the issue of enforcement. One hundred four countries have ratified the Optional Protocol to the ICCPR, allowing for individual or group complaints to be brought to the attention of the Human Rights Committee.55 The Human Rights Committee (HRC) is the body that monitors compliance with the ICCPR. The HRC accepts and examines reports submitted to it under Article 40 of the ICCPR. The HRC also handles complaints about state violations, and issues ‘views’ in response to such complaints. Since 1976, when this procedure was implemented for individual complaints, the HRC has handed down over 400 ‘views’ to countries that have had complaints brought against them.56
By contrast, the Optional Protocol to the Women’s Convention currently has only 60 ratifications.57 Similar to the Optional Protocol of the ICCPR, the Women’s Convention Optional Protocol allows individuals and groups to bring complaints to the attention of the Committee on the Elimination of Discrimination against Women, the body that monitors compliance with the Women’s Convention.58 Just over three years old, this individual complaint procedure is only beginning to be used.
The fact that more countries are parties to the ICCPR Optional Protocol means that many more individuals and human rights groups have access to the complaints procedure before the Human Rights Committee, if they believe reproductive rights have been violated, than to the complaints procedure before the Committee on Elimination of Discrimination Against Women (CEDAW). Even though more individuals might have access to the HRC via the Optional Protocol, only one person has actually made use of the procedure to complain about the violation of reproductive rights.59
The broadening of the right to life under Article 6(1) of the ICCPR to include women’s reproductive rights is an area of new and emerging international jurisprudence. Only in the past four or five years has the HRC really begun to point out to state parties that high rates of maternal mortality are a violation of Article 6. As a result, it is not surprising that individuals have yet to use the Optional Protocol procedure to complain about the violation of reproductive rights. Fortunately, this trend is about to change. In November 2002, the Centre for Reproductive Rights in New York filed a complaint with the Human Rights Committee regarding the case of a young Peruvian woman who was prevented by state officials from terminating her pregnancy when she carried an encephalic foetus. She was forced to carry the foetus to term, which seriously compromised her ‘life, [and] physical, and psychological health.’60 This case appears to be the first case of its kind to be brought to the attention of the HRC.
Finally, one of the more general reasons we might wish to turn to the ICCPR instead of the Women’s Convention is simply the fact that the HRC is the oldest treaty monitoring body in existence and is thus arguably the most authoritative. Although the views the HRC hands down when dealing with individual complaints are not binding, they do carry some weight. The fact that over 1,000 complaints have been registered with the HRC since the Optional Protocol came into existence means that individuals must see the HRC as somewhat effective.61 In addition, there seems to be less controversy over the provisions in the ICCPR, which may indicate that the states party to the ICCPR take their obligations more seriously than they might take their obligations under the Women’s Convention.