The ICCPR was opened for signature by the UN General Assembly on 19 December 1966 and entered into force on 23 March 1976.62 As mentioned previously, 151 countries have ratified it.63 The ICCPR deals in particular with what are typically referred to as ‘civil and political’ rights, such as the right to equality, the right to a fair trial, the right to life, the right to be free from arbitrary detention and torture, the right to free expression, the right to free association, and so forth.
The right to life in Article 6 of the ICCPR states:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.64
The HRC explains that the right to life ‘is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation.’65 The HRC notes that quite often, unfortunately, the information given by countries concerning Article 6 is limited to only one or another aspect of the right to life, despite the fact that this right should not be interpreted narrowly:
The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics (emphasis added).66
These words by the HRC reveal that the health of a population is a factor to be considered when dealing with the right to life. One can argue that this right should be applied to the over 500,000 women who die of pregnancy-related causes every year, and that governments must therefore be held accountable for violating the right to life if they fail to significantly reduce national maternal mortality rates.67 However, before one can hold a government accountable for neglecting a high rate of maternal mortality in a community, the causes of maternal mortality in that community must be understood: ‘If the causes are multifaceted . . . then the right to life may be invoked in addition to (other rights).’68
The World Health Organisation emphasises that gender inequalities and discrimination limit women’s choices and contribute directly to their ill-health and death.69 Unsafe abortion is one of the major causes of maternal death70 and is usually a result of restrictive abortion laws. One could argue that a government, by prohibiting abortion, is violating a woman’s right to life:
If women are to be equal, governments have at least the same obligation to prevent maternal death as to prevent death from disease. In fact, given that maternity, the sole means of natural human propagation, is not a disease, equity requires more protection against the risk of maternal mortality than against death from disease.71
Cook cautions, nonetheless, that authorities have disagreed about whether Article 6 should be given a narrow or broad application.72 Despite the HRC’s statement that Article 6 is not to be interpreted in a restrictive manner, it is generally recognized that the right is not all-embracing and that it does not ‘guarantee any person against death from famine or cold or lack of medical attention.’73
Even if one uses the right to life in the ICCPR to include the right to life of pregnant women, how would one monitor state compliance with this right? There would have to be a clear definition of the right, coupled with certain performance standards. A precise formulation of the right is important because the right must ‘give rise to legal obligations on the part of a state, rather than merely setting a standard of conduct.’74 Setting definitive standards is vital in order to ensure that state parties know how to apply the right to life and can be punished for violating it. The right to reproductive health for women must be reinforced under international human rights law, otherwise this systemic discrimination against women will persist.
4.1. How is the Right to Life Applied by the Human Rights Committee?
The right to life under the ICCPR has traditionally been interpreted as referring solely to the obligation of states to ensure that their courts observe due process of law before capital punishment is imposed. In fact, most of Article 6 refers to capital punishment only.75 This understanding of the meaning of the right to life is essentially male-oriented, as death from execution presents a more realistic threat to men than death from pregnancy or childbirth. This narrow interpretation ‘ignores the historic reality of women...and is indeed a focus of sex stereotyping in that capital punishment cannot usually be applied to pregnant women.’76 For women, however, the understanding of ‘right to life’ exists within an entirely different context. For the majority of the world’s poorest women, death from reproductive health complications or labour is a much more immediate threat than death from execution, and the most obvious right violated in such cases is the right to life itself.
In order to understand how the right to life has been applied by the HRC, we will examine its ‘Concluding Observations’ on the reports of various state parties to the ICCPR. Under Article 40, state parties undertake to submit reports to the HRC on the ‘measures they have adopted which give effect to the rights recognised [by the ICCPR] and on the progress made in the enjoyment of those rights.’77
After receiving a report from a state party, the HRC must ‘study’ this report and then formulate its own report and general comments.78 The response of the HRC to a state party’s report is known as a ‘concluding observation.’ A ‘General Comment,’ by contrast, is a statement made by the HRC that concerns the interpretation of one or more articles of the ICCPR. Because the text of the ICCPR is extremely ‘terse about what is intended,’79 State parties will find it easier to comply with the Covenant if the HRC sets out some guidelines regarding the interpretation of rights. General Comments ‘develop and clarify the substantive content of an article by specifying the particular information that states are to provide about its implementation.’80 The General Comment most important to this analysis is General Comment 6 on Article 6, written in 1982.81
An examination of the HRC’s Concluding Observations over the past four or five years reveals that it has adopted a relatively broad view of the right to life, although this has never been specifically stated. The right to life does, of course, still apply in the traditional sense (as in the right to be free from arbitrary killings). Examples of situations where the right to life has been traditionally applied are: Algeria, where women have been victims of killings and other violence;82 Colombia, where ‘social cleansing’ operations targeting street children and prostitutes violated the right to life of these groups;83 and Sudan, where the state has imposed the death penalty for offences which cannot be characterised as ‘among the most serious,’ such as apostasy, committing a third homosexual act, illicit sex, and theft by force.84
In plenty of other cases, however, the right to life has been applied in a broader context. In its reports on Bolivia85 and Costa Rica,86 for example, the HRC states its concern regarding the very high level of maternal mortality that arises as a result of clandestine abortion. In other reports, the HRC condemns the high incidence of domestic battering in Costa Rica and Columbia, and, in the report on Colombia, explicitly states that violence against women remains a major threat to their right to life and thus needs to be more effectively addressed.87 The concluding comment on Japan also denounces the high incidence of domestic violence, rape, and the absence of any remedial measures to eradicate this practice.88 The right to life, however, is not referred to in Japan’s report — perhaps because even though domestic violence is common, fatalities may not be as high as they are in Colombia.89
General Comment 6 states that the right to life ought to include attention to life expectancy.90 The Concluding Observations on Nepal reflect this concern.91 The HRC mentions that the average life expectancy of women is shorter than that of men and stresses that this should be addressed.92 The concluding observation on Peru is also of particular interest because the HRC clearly states that clandestine abortions are the main cause of maternal mortality, but yet goes on to say that the restrictive abortion laws that give rise to this situation are ‘possibly’ incompatible with Article 6.93 The use of the word ‘possibly’ is disconcerting because it reveals the Committee’s reluctance to openly challenge the prohibition on abortion as a violation of a woman’s right to life. It is arguable, nonetheless, that this reluctance is justified because the Committee is concerned about accusations of disregarding the religious beliefs that lie behind most laws restricting abortion.
Apart from discussing maternal mortality, the HRC also makes several references to the practice of female genital mutilation (FGM). Senegal is one of the countries where a large number of girls are subjected to FGM, and when reporting on this issue, the HRC is more explicit regarding the effect of this practice on the right to life:
The Committee continues to be especially disturbed at the persistent custom of female genital mutilation, which violates Articles 6 and 7 of the Covenant, and the high rate of maternal mortality which results from that practice, from early childbirth and from the strict prohibition of abortion.94
What exactly is being said here? Is the HRC stating that the practices of FGM, early childbirth, and the strict prohibition of abortion all result in a high rate of maternal mortality and thus all lead to a violation of Article 6 of the ICCPR? That seems to be the most likely interpretation. As a result, it seems that the HRC is implying that high rates of maternal mortality are indeed a violation of Article 6 and that countries must end such practices in order to avoid violating the right to life.
The HRC’s report on Sudan points out concerns similar to those discussed, supra. As in Senegal, the Committee deplores the high maternal mortality rate, which it states ‘may’ be the consequence of ‘early marriage, clandestine abortions and female genital mutilation.’95 The Committee explains that it is especially concerned about the practice of FGM in Sudan because it is practiced on female minors, who may suffer the consequences throughout their lives: ‘This practice,’ the HRC says, ‘constitutes cruel, inhuman and degrading treatment and violates Articles 7 and 24 of the Covenant.’96 The mention of a violation of Article 6 is strangely absent here. Are we meant to believe that FGM violates the right to life as practiced in Senegal, but does not when practiced on even younger girls in Sudan? It is extremely important, when discussing violations of rights by various countries, that the HRC applies these rights in a consistent manner. A country will have difficulty determining the exact nature and scope of a right if it is not applied consistently to all countries.
There are a few Concluding Observations in which the HRC makes more or less an explicit statement that restrictive abortion laws violate a woman’s right to life. One mention occurs in a report on the United Republic of Tanzania, where the Committee ‘deplores the law in force in Zanzibar which allows for the imprisonment of both mother and father in the event of an unmarried woman becoming pregnant.’97 The HRC clearly states that such a law carries risks to the right to life by encouraging resort to illegal abortion. In its observations on Trinidad and Tobago, the HRC ‘recommends that legal limitations on abortion be reappraised and that restrictions which may risk violation of women’s rights be removed from the law, by legislation if necessary ([possible violation of] Arts 3, 6.1 and 7).’98 In addition, the Committee’s 2001 concluding observation on Venezuela states:
[C]riminalisation of all non-therapeutic abortion poses serious problems, particularly in the light of unchallenged reports that many women are undergoing life-threatening illegal abortions. The legal duty imposed on health workers to report cases where women have undergone abortions may deter women from seeking medical treatment, thereby endangering their lives (emphasis added).99
Most recently, the HRC has become even more explicit when discussing the link between high rates of maternal mortality and the violation of the right to life. In its Concluding Observation to Sri Lanka in December 2003, the HRC notes that it is ‘concerned by the high number of abortions in unsafe conditions, imperilling the life and health of the women concerned, in violation of Articles 6 and 7 of the Covenant.’100 The HRC therefore makes it clear that laws that force a woman to resort to illegal abortion risk violating the right to life.
The HRC has also applied Article 6 to the situation in India, where it claims that the practices of foeticide and infanticide of females violate the right to life.101 This raises some interesting questions. It is easy to see how infanticide would violate Article 6, but what about ‘foeticide’? If by ‘foeticide’ the HRC is referring to the abortion of female foetuses, is it saying that in certain cases abortion violates the right to life? Until now, we have seen how the Committee is trying in various ways to show that restrictive abortion laws may violate a woman’s right to life. Is it saying in the report on India, however, that allowing an abortion violates the foetus’ right to life in certain circumstances ?
In the article ‘International Protection of Women’s Reproductive Rights’, Cook explains that ‘it is not generally accepted that international human rights conventions are applicable before the birth of a human being.’102 Article 6(1) of the ICCPR ‘speaks of the right belonging to every human being….[a]ccording to traditional legal understanding, unborn life is not regarded as that of a ‘human being’ because, while ‘human’, it is not ‘in being.’’103 Accordingly, she comes to the conclusion that international human rights law, as reflected in the Universal Declaration, the ICCPR, and the Convention on the Rights of the Child, does not recognise a right to life of the unborn.104 The HRC’s statements on India, therefore, can be taken to mean that although abortion typically does not violate the right to life of a foetus, when it is practiced solely because the foetus is a girl, it may be seen as such. The motive for the abortion is clearly important to the HRC. If the foetus is aborted because ‘girl children are not valued for their own sake,’ condemnation of this ‘appears warranted.’105 The discrimination women face in India is particularly harsh:
Often girl children suffer acute and pervasive discrimination in denial of equal shares with sons of food, health care, recreation, education, and economic opportunity. They have no choice of marriage partners, age of marriage, or spacing and frequency of childbearing in marriage.106
In light of this background and in light of the fact that the ICCPR emphasizes the ‘equal right of men and women to the enjoyment of all civil and political rights,’107 the Committee’s criticism of female infanticide as a result of discrimination against women is justified.
The HRC Concluding Observations reveal other examples of countries that have violated Article 6 by ignoring women’s rights to health. For example, in its Concluding Observations on the Democratic People’s Republic of Korea, the HRC states:
Given the State party’s obligation, under Article 6 of the Covenant, to protect the life of its citizens and to take measures to reduce infant mortality and increase life expectancy, the Committee remains seriously concerned about the lack of measures by the State party to deal with the food and nutrition situation in the Democratic People’s Republic of Korea and the lack of measures to address, in cooperation with the international community, the causes and consequences of the drought and other natural disasters which seriously affected the country’s population in the 1990s.108
In addition, in its Concluding Observations on Hungary, the Committee more specifically addresses women’s reproductive health issues by declaring:
The Committee is concerned at the high maternal mortality rate in Hungary and the fact that the State party does not provide sufficient support for family planning through effective means of contraception. The State party should take steps to protect women’s life and health, through more effective family planning and contraception ([violation of] Art 6).’109
In its report on Sweden, the HRC reveals its concern over ‘cases of female genital mutilation and ‘honour crimes’ involving girls and women of foreign extraction ([possibly violating] arts. 3, 6 and 7 of the Covenant).’110 Finally, the HRC also refers to domestic violence as a violation of Article 6. In its concluding observation on Uzbekistan, the HRC notes that the state party:
… should take effective measures to combat violence against women, including marital rape, and ensure that violence against women constitutes an offence punishable under criminal law. The State party should also organise awareness campaigns to address all forms of violence against women, including domestic violence, in order to comply fully with Articles 3, 6, 7 and 26 of the Covenant.111
This brief look at the ways in which various countries have violated women’s right to life reveals how, in the context of reproductive health, ‘the absence of human rights guarantees in the private sphere has permitted the violation of the most obvious right — the right to life — to go unrecognised.’112 Issues surrounding women’s health and pregnancy are usually relegated to the ‘private’ family sphere.113 The failure of human rights guarantees to reach into this private sphere means that the protection of women’s rights in this area are ignored and the deaths of women through childbirth continue to go unnoticed.114 The traditional understanding of the right to life has ignored the reality that the right is violated daily when women die in pregnancy or labour, and could be prevented if they only had better access to reproductive health care.115
Fortunately, the HRC is both attempting to alert state parties to the ICCPR that Article 6 has a broader meaning and highlighting the neglected tragedy of maternal mortality, as is seen, for example, in its recent Concluding Observations to Mali, where the HRC explicitly emphasizes that high maternal mortality rates are a concern because they violate Article 6.116 The Committee’s attempts to urge governments to address the problem of maternal mortality are more clearly revealed when examining its suggestions on how countries can take positive steps to protect the right to life.
4.2. What Has the Human Rights Committee Required States to Do to Positively Protect the Right to Life?
An ethical observation relevant to reproductive health is that:
[r]ights claims, whether legal or moral, are commonly divided into two types: negative and positive. This distinction is based on the difference between the right to be free to do something (a right to non-interference) and the right to be provided by others with a particular action, good or service (a right to benefits).117
Generally, governments have an immediate obligation to implement rights guaranteed by treaties.118 For example, governments are expected to immediately refrain from interfering with the right to free speech or to immediately release political prisoners whose right to a fair trial has been violated.119 When it comes to second- and third-generation rights, however, such as the right to health, states face progressive, as opposed to immediate, duties.120 When dealing with economic, social, and cultural rights, progressive obligations mean that governments must methodically and over time build up their capacities to ensure the rights at stake.121
In cases such as ensuring women’s right to reproductive health, governments must play an active role in promoting the right: ‘[A]ttributing a purely negative or passive role to the state may appear inadequate.’122 The HRC agrees with this and stresses that, due to the broad scope of the right to life, state parties are required to take positive steps to protect it. The (negative) step of simply ‘refraining’ from restricting a freedom is often not enough. as can be seen, for example, in the HRC’s Concluding Observation to Mali, where it mentions that in order to guarantee the right to life, Mali ought to ‘[ensure] the accessibility of health services. . .ensure that its health workers receive adequate training. . .[and] help women avoid unwanted pregnancies. . .by strengthening its family planning and sex education programmes.’123 All of these requirements place a burden on the State to actively carry out certain duties, such as building accessible health care centres, educating the public sector, and so on.
There are certain cases, however, where the Committee merely calls for a change to legislation. One example is Armenia, where the HRC suggests that laws must be created to protect women from all forms of violence including rape.124 Additionally, in its report on Chile, the Committee provides that Chile is under a duty to take measures to ensure the right to life of all pregnant women whose pregnancies are terminated by amending the law to introduce exceptions to the general prohibition of all abortions.125 Costa Rica, by contrast, has been asked to take ‘all necessary measures, including the enactment of appropriate legislation (emphasis added)’ to protect women from domestic violence and also to introduce exceptions to the general criminalisation of all abortions.126 The lack of specificity here may be problematic. What exactly are ‘all necessary measures’? Does this include education campaigns and the provision of shelters and rape crisis centres? Why is it that Armenia merely needs to enact legislation to protect women from violence, while Costa Rica must take all necessary measures including enacting legislation?
The report on Lithuania also makes a reference to ‘additional measures.’127 The HRC is concerned about the extent of violence against women, including forced prostitution. Although there is a law against this, the HRC urges the state to take additional measures ‘to prevent, investigate and prosecute cases of domestic violence.’128
A similarly vague call for positive measures is made in the concluding observation on Ecuador.129 The observation requests that ‘all reported acts of violence against women be investigated and appropriate judicial proceedings instituted.’130 In addition, the Committee recommends that Ecuador ‘adopt all necessary legislative and other measures to assist women, and particularly adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate health and education facilities.’131 One assumes that the Committee is using the phrase ‘other measures’ to refer to the positive obligation upon the government to provide contraceptives and counselling to women, as well as post-abortion services. This is only a guess, however, and it may be necessary for the HRC to set some minimum guidelines, so that countries know exactly what sort of positive obligations are expected from them.
In its concluding observation on Peru, the Committee maintains that the country ‘must ensure that laws relating to rape, sexual abuse and violence against women provide women with effective protection and must take necessary measures to ensure that women do not risk their lives because of the existence of restrictive legal provisions on abortion.’132 The same request is made in the observations on Lesotho and Libyan Arab Jamahiriya. With regard to Lesotho, the HRC recommends that the state ‘review the law of abortion to provide for situations where the life of the woman is in danger,’133 while Libyan Arab Jamahiriya must provide the Committee with information on measures taken to reduce the high rate of maternal mortality and must ‘intensify its efforts to guarantee full equal enjoyment by men and women of all their human rights.’134 The Concluding Observations on Peru and Lesotho make it clear therefore, that, in order to protect the right to life, abortion should be allowed in cases where the woman’s life is at risk. The concluding comment on Libyan Arab Jamahiriya, however, leaves one wondering what exactly is meant by ‘intensifying efforts to guarantee women their human rights.’135
In its Concluding Observation on India, the Committee presents a good outline of the positive obligations on the state.136 The HRC points out that, although measures have been taken to outlaw child marriages, dowry-related violence, and sati (self-immolation of widows), these are only negative measures and ‘are not sufficient.’137 Positive measures to protect the right to life include ‘measures designed to change the attitudes which allow such practices’138 The government must ‘protect women from all discriminatory practices, including violence,’ and must also adopt special measures to prevent the occurrence of rape of women in custody.139
In comparison to this report on India, the concluding comment on Iraq is disappointing.140 The HRC applauds Iraq for protecting the right to life by repealing the law that exempted from prosecution certain ‘crimes of honour’ involving the killing of female relatives.141 However, the single act of repealing a law is not enough. By repealing this law, has there been an actual reduction in the number of crimes of honour committed against women? Have there been any convictions? Surely, such a longstanding practice will not cease simply because the law has been repealed. Why is there no call for ‘positive measures to change the attitudes’ that supported this practice in the first place? In the Concluding Observation on Sudan, for example, the HRC urges the country ‘to forbid, as a matter of law, the practice of female genital mutilation, making it a discrete criminal offence.’142 Knowing that this will not be enough, the Committee states that positive measures must also be taken, such as ‘social and educational campaigns … to eliminate the practice’ by changing people’s attitudes.143
It seems that in dealing with the concept of ‘positive’ obligations on states, the HRC trusts that state parties to the ICCPR will know what is expected of them. Although clear on the point that simply enacting or repealing laws is not enough, when it comes to actually describing what positive steps a country must take, the Committee prefers to simply stress the need to take ‘additional’ measures. Even in the report on India, the Committee did not quite explicitly state that the primary purpose of additional measures was to change discriminatory views through education.144 However, in the report on Mali, the positive measures to ensure the right to life were frankly listed and included the need to make health services accessible, train health workers properly, and help women avoid unwanted pregnancies by strengthening family planning and sex education programs.145
With regard to abortion laws, clear statements are given that abortion ought to be allowed where the woman’s life is in danger, and the HRC repeatedly underlines its concern about the high rates of maternal mortality, yet it is often silent with respect to the obligation of a state to ensure that all women have access to certain essential services, such as culturally sensitive pre- and post-natal care, family planning services, and education and counselling on contraception and safe motherhood. Can it be argued, nonetheless, that, by condemning the high incidence of maternal mortality, the HRC is asserting that a woman’s right to health stems from the right to life ?
4.3. How are Health and Human Dignity Imported into the Right to Life ?
In discussing various risks to the right to life, the HRC does not only refer to the direct dangers of illegal abortion; it also concerns itself with domestic violence, rape, female genital mutilation, and the life expectancy of women.146 All these factors directly influence a woman’s right to life by affecting her health and human dignity.
Violence in the form of rape, sexual abuse, or battering seriously impacts a woman’s health. Heise explains that violence affects women’s ability to protect themselves from unwanted pregnancies and STDs, including AIDS: ‘Even where violence is not used to control women’s behaviour, the possibility of violence helps create an atmosphere of female deference to male decision-making regarding sexual behaviour and contraceptive use.’147 These interpersonal barriers to women’s reproductive autonomy, Heise adds, can be as significant as government policy, if not more so.
Surveys suggest that pregnant women in particular are especially vulnerable targets for abuse:
[S]tudies indicate that women battered during pregnancy run twice the risk of miscarriage and four times the risk of having a low birth weight baby compared with women who are not beaten. Battering during pregnancy is likely to have an even greater impact on Third World mothers who are already malnourished and overworked.148
Women bear most of the responsibility in sexuality and reproduction, from contraceptive use to pregnancy, childbirth, and breastfeeding. These greater responsibilities, when combined with the common lack of control over their sexual lives or access to the services and information they need, may significantly contribute to women’s reproductive ill health.149
Heise provides an example of the Maternity Hospital of Lima, Peru, where 90 percent of the young mothers aged 12 to 16 have been raped by their father, stepfather, or another close relative: ‘These young women have had their reproductive rights transgressed in a way that could haunt them for life.’150 Other studies reveal that partner approval is the most significant influence on a woman’s decision to use contraception.151 Because inequality between the sexes has resulted in many women being so dependent on men, women do not have the power to insist on condom use and therefore cannot refuse men’s sexual and childbearing demands.152
The HRC makes several efforts to address domestic violence in its concluding comments. The report on Jamaica, for example, recommends that, in order to decrease violence against women, ‘increased efforts must be made to sensitise the population to the need to respect women’s dignity and that legislation should ensure ready access to remedies for violations of women’s human rights.’153 Furthermore, the Committee advises that ‘social and educational programs be pursued’ to ensure that women’s rights are upheld as part of the abolition of discrimination.154 The Concluding Observations on Uzbekistan also tackle the issue of domestic violence directly: ‘[t]he State party should … organize awareness campaigns to address all forms of violence against women, including domestic violence, in order to comply fully with Articles 3, 6, 7, and 26 of the Covenant.’155
Colombia too, the Committee explains, must take measures to ensure full legal and de facto equality for women in all aspects of social, economic, and public life, including with respect to their status within the family.156 The HRC is particularly adamant that the government prioritise women’s right to life by effectively combating domestic violence and by providing access to safe methods of contraception.157 A similar concern for women’s human dignity is seen in the Concluding Observations on Ecuador, where the HRC is particularly concerned about the high number of suicides of young females that appear to be related to the prohibition of abortion.158 The Concluding Observations reveal that the prohibition of abortion, even in cases of rape, impacts the human dignity of adolescent girls by causing them to suffer the consequences of such acts for the rest of their lives.
The Concluding Observation on Vietnam refers to the importance of creating adequate family planning programs to avoid life-threatening abortions.159 The HRC states: ‘[t]he State party should take adequate measures to help women prevent unwanted pregnancies and avoid resorting to life-threatening abortions, and adopt appropriate family planning programmes to this effect.’160
Another form of violence that has dramatic implications for women’s reproductive health is female genital mutilation (FGM). The reproductive health consequences of FGM are severe:
In addition to loss of sexual feeling, circumcised women often suffer chronic urinary tract infections, pelvic infections that can lead to sterility, painful intercourse, and severe scarring that can cause tearing of tissue and haemorrhage during childbirth … [r]ather than being self-inflicted, genital mutilation is an act usually performed upon children with or without their consent, making it even more objectionable.161
The HRC is especially adamant that states party to the Covenant outlaw the practice of FGM. In its concluding comments on Lesotho, the Committee calls for the eradication of female circumcision which is ‘contrary to human dignity and violates … the right to life and … the right to protection against cruel, inhuman, and degrading treatment’.162 The practice must be made punishable by law, and educational programs must be undertaken in this regard.163
With regards to the problem of FGM and honour crimes in Sweden, the HRC states: ‘[t]he State party should continue its efforts to prevent and eradicate such practices. In particular, it should ensure that offenders are prosecuted, while promoting a human rights culture in the society at large, especially among the most vulnerable sectors of immigrant communities.’164 This latter request by the HRC is particularly interesting. What steps must be taken to ‘promote a human rights culture’? The HRC is probably referring to legal, political, and educational steps that must be taken to ensure respect for human dignity throughout Swedish society. Complying with the right to life under the ICCPR thus necessitates promoting a basic respect for human rights throughout a nation’s culture.
Overall, the HRC promotes the view that violence against women is intimately connected to women’s rights to health and life. Such violence negatively affects women; it damages their overall health, including their reproductive health, and takes away their power to make reproductive and sexual health choices.165 Gender-based violence occurs within a context in which women are generally discriminated against and suffer from systemic violations of their human rights.166
Some final illustrations of how the rights to health and human dignity have been imported into the right to life can be seen in the concluding comments on Nepal, Nigeria, Paraguay, Senegal, and Zimbabwe. As to Nepal, the HRC suggests that the country adopt administrative and educational measures that ‘will eliminate traditional practices and customs detrimental to the well-being and status of women’ in order to increase their life expectancy’.167 The Committee advises Nigeria to take steps, ‘in particular through education, to overcome certain traditions and customs such as FGM and forced marriages that are incompatible with the equality rights of women.’168 Paraguay too, must take measures necessary to overcome traditional attitudes concerning the role of women in society.169 The HRC also urges Senegal to abolish practices prejudicial to women’s health and to reduce maternal mortality; it encourages the country ‘to launch a systematic campaign to promote popular awareness of persistent negative attitudes towards women and to protect them against all forms of discrimination.’170 Specific attention must be ‘given in the law to the problem of domestic violence,’ and there is a ‘need for information and education campaigns to prevent and combat any form of physical violence against women.’171 Finally, educational campaigns must also be undertaken in Zimbabwe, where institutional mechanisms must also be established ‘to address all forms of violence against women and to provide assistance to victims of violence.’172
Reviewing all these recommendations by the HRC reveals that the Committee is considering ‘governmental neglect of preventable causes of women’s mortality and morbidity as an affront to their human dignity and as part of a larger social phenomenon of systemic discrimination against women.’173 Laws that deny women abortions and refuse to punish domestic violence and FGM are being challenged as violating women’s basic human rights, in particular, the right to life. States party to the ICCPR can no longer neglect maternal mortality and women’s reproductive health.
Having said this, however, how effective are the Concluding Observations really? Do they present to the state parties useful steps that can be taken to improve women’s health and cease violations of women’s right to life? Are the observations consistent enough to enable easy comparison between countries or over time?