Putting it to Good Use: The International Covenant on Civil and Political Rights and Women’s Right to Reproductive Health



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6. Conclusion

The Human Rights Committee has broadened the right to life under the ICCPR. Due to this broadening of the nature of the right, Article 6 can now be used not only to protect people on death row, but also to protect women’s reproductive rights. Maternal mortality must be redefined from being viewed as a ‘health disadvantage’ to being seen for what it is: a grave ‘social injustice.’203 When governments begin to premise women’s reproductive rights on the right to life, they will have the legal and political basis they need to promote, fulfil, and ensure the right to reproductive health care for all women.204 The World Health Organisation believes that the essence of promoting safe motherhood through human rights lies in conceiving of the multiple inequalities faced by women throughout their lives and their pregnancies as violations and injustices that governments have an obligation to remedy through political, legal and health systems.205


The Human Rights Committee, by urging governments to undertake positive measures to reduce violence against women and to eradicate female genital mutilation, is advocating the view that women’s disempowerment is indeed a social injustice. Although the positive obligations on governments still remain vague at this stage, the HRC is making clear that maternal mortality must be decreased and educational measures must be taken to change pervasive discriminatory attitudes towards women. It is hoped that in the future, the HRC will be able to delineate more precisely the exact obligations on governments, and the true nature and scope of the right to life.206 As Sadasivam explains, ‘rights are worth very little in the context of maternal mortality unless there are specific duties and obligations on the part of governments — for example, a major investment in a system of comprehensive maternity care.’207 This is not ‘beyond the means of most countries provided there is a dramatic shift in priorities.’208 We can also only hope that methods of reporting violations will improve and international bodies will be able to enforce human rights guarantees more effectively. The weakness of implementation procedures among human rights treaty bodies is a significant obstacle to the attainment of women’s human rights.
In general, although this paper focuses on how Article 6(1) of the ICCPR can be used to advance women’s reproductive rights, this does not mean that the excellent protections afforded to women under other treaties should be neglected. The numerous observations made by the HRC regarding the protection of women’s health echo comments that have been made by the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Committee on Economic, Social, and Cultural Rights (CESCR). For example, CEDAW has emphasized that women’s right to health during pregnancy and childbirth is closely linked to their right to life.209 In addition, CEDAW has consistently stated that maternal mortality due to unsafe abortion is a violation of women’s right to life.210 In its General Recommendations, CEDAW has also explicitly required that certain impediments to women’s access to lifesaving health services be removed (such as high fees, spousal authorization, or punitive provisions imposed on women who undergo abortions).211 The HRC should perhaps use these suggestions provided by CEDAW in its own Concluding Observations. This way, the HRC can provide definite guidelines to state parties on how to reduce rates of maternal mortality, instead of simply urging them to take ‘additional measures’.
CESCR has also acknowledged that clandestine abortion is a major cause of maternal mortality.212 In many of its own Concluding Observations, CESCR has urged state parties to address the problem of maternal mortality by implementing programs that increase women’s access to comprehensive reproductive health care and information.213 Again, the HRC may be able to pick up some useful suggestions from the CESCR’s comments and guidelines on how best to reduce maternal mortality.
In conclusion, the Concluding Observations, general comments, and recommendations issued by treaty monitoring bodies such as the HRC, CEDAW, and CESCR provide guidance to states on their reporting obligations as well as on how to comply with treaty obligations. During the past decade, the HRC, CEDAW, and CESCR have adopted general comments and recommendations aimed at empowering women to exercise their rights.214 Though the general comments and recommendations are not legally binding, if the committees learn from each other in the areas in which their protection of women’s health overlaps, they will be able to put forward unified views on how women’s reproductive rights can best be achieved. Working together will reflect the commitment to gender mainstreaming within the U.N. that was agreed to at the 1993 World Conference on Human Rights in Tehran.215 The fundamental truth behind reproductive and sexual rights is that they are comprised of ‘intersecting and overlapping rights found in all of the principle human rights treaties.’216 Thus, a consolidated approach to ensuring them will be most effective. In a world where reproductive and sexual rights are so vulnerable to attack from those opposed to the full attainment of women’s rights, it is evident that a unified response from all the treaty monitoring bodies is the best way to ensure the protection and promotion of women’s health in the years to come.

Appendix A: General Comment 6217

1. The right to life enunciated in Article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (Art 4). However, the Committee has noted that quite often the information given concerning article 6 was limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly.

2. The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect, the Committee notes, in particular, a connection between Article 6 and Article 20, which states that the law shall prohibit any propaganda for war (para 1) or incitement to violence (para 2) as therein described.

3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of Article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.

4. States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.

5. Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. 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.

6. While it follows from Article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the ‘most serious crimes’. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’. The article also refers generally to abolition in terms which strongly suggest (paras 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.

7. The Committee is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of Article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.


Appendix B: State Parties to the ICCPR (As Of 3 November 2003)218
[* = also a state party to the Optional Protocol to the ICCPR]


Afghanistan

Albania


Algeria*

Andorra*


Angola*

Argentina*

Armenia*

Australia*

Austria*

Azerbaijan*

Bangladesh

Barbados*

Belarus*

Belgium*


Belize

Benin*


Bolivia*

Bosnia & Herzegovina*

Botswana

Brazil


Bulgaria*

Burkina Faso*

Burundi

Cambodia


Cameroon*

Canada*


Cape Verde*

Central African Republic*

Chad*

Chile*


China

Colombia*

Congo*

Costa Rica*



Croatia*

Cyprus*


Czech Republic*

Cote d’Ivoire*

Democratic People’s Republic of Korea

Denmark*


Djibouti*

Dominica


Dominican Republic*

Ecuador*


Egypt

El Salvador*

Equatorial Guinea*

Eritrea


Estonia*

Ethiopia


Finland*

France*


Gabon

Gambia*


Georgia*

Germany*


Ghana*

Greece*


Grenada

Guatemala*

Guinea*

Guinea-Bissau*



Guyana

Haiti*


Honduras*

Hungary*


Iceland*

India


Iran

Iraq


Ireland*

Israel


Italy*

Jamaica


Japan

Jordan


Kenya

Kuwait


Kyrgystan*

Lao People’s Democratic Republic

Latvia*

Lebanon


Lesotho*

Liberia


Libyan Arab Jamahiriya*

Liechtenstein*

Lithuania*

Luxembourg*

Madagascar*

Malawi*


Mali*

Malta*


Mauritius*

Mexico*


Monaco

Mongolia*

Morocco

Mozambique



Namibia*

Nauru*


Nepal*

Netherlands*

New Zealand*

Nicaragua*

Niger*
Nigeria

Norway*


Panama*

Paraguay*

Peru*

Poland*


Portugal*

Republic of Korea*

Moldova

Romania*


Russian Federation*

Rwanda


Saint Vincent and the Grenadines*

San Marino*

Sao Tome and Principe*

Senegal*


Serbia and Montenegro*

Seychelles*

Sierra Leone*

Slovakia*

Slovenia*

Somalia*


South Africa*

Spain*


Sri Lanka*

Sudan


Suriname*

Sweden*


Switzerland

Syrian Arab Republic

Tajikistan*

Thailand


The Former Yugoslav Republic of Macedonia*

Timor-Leste

Togo*

Trinidad and Tobago



Tunisia

Turkey


Turkmenistan*

Uganda*


Ukraine*

United Kingdom

United Republic of Tanzania

United States

Uruguay*

Uzbekistan*

Venezuela*

Viet Nam


Yemen

Zambia*


Zimbabwe


Appendix C: Selected Articles from the Convention on the Elimination of Discrimination Against Women219
[…]

Article 2


States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.
[…]

Article 10

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:
(a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality;

(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;

(d ) The same opportunities to benefit from scholarships and other study grants;

(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women;

(f) The reduction of female student drop-out rates and the organisation of programmes for girls and women who have left school prematurely;

(g) The same Opportunities to participate actively in sports and physical education;

(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:


(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.


Article 12 

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

[…]
Article 14

1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas.

2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right:

(a) To participate in the elaboration and implementation of development planning at all levels;

(b) To have access to adequate health care facilities, including information, counselling and services in family planning;

(c) To benefit directly from social security programmes;

(d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency;

(e) To organise self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment;

(f) To participate in all community activities;

(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes;

(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.


[…]

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.




1Endnotes
. Family Care International and the Safe Motherhood Inter-Agency Group (2002) Safe Motherhood: A Matter of Human Rights and Social Justice, at <http://www.safemotherhood.org/facts_and_figures/human_rights.htm (hereinafter Safe Motherhood Report).

2. Cook, Rebbecca J and Fathalla, Mahmoud F (1996) ‘Advancing Reproductive Rights Beyond Cairo and Beijing’, International Family Planning Perspectives 22, p 115.

3. See United Nations Report of the Fourth World Conference on Women: Beijing, 4- 15 September 1995, at 42, 107(a), U.N. Doc. A/CONF.177/20/Rev.1, U.N. Sales No. 96.IV.13 (1996).

4 . See id. p 96.

. Pillai, Vijayan K and Wang, GaungpZhen (1999). Women’s Reproductive Rights in Developing Countries, pp6 -7.

5. See id. p 31.

6. Id.

7. See id.

8. Thoraya Ahmed Obaid (2003) ‘Saving Women's Lives’, Lecture presented at Smith College, 26 March 2003, Available at <http://www.unfpa.org/news/news.cfm?ID=271>.

9. See Family Care International and the Safe Motherhood Inter-Agency Group, Safe Motherhood Fact Sheet: Maternal Mortality, at < http://www.safemotherhood.org/ facts_and_figures/maternal_mortality.htm (2002)>.

10. See id.

11. See id.

12. Pillai and Wang, supra n 5, p 3.

13. See id. pp 17–18; Henkin, Louis (1989) International Law: Politics, Values and Functions (1989), reprinted in Alston, Philip and Steiner, Henry J (1996). International Human Rights in Context: Law, Politics, Morals, pp 113, 115.

14. Id. p 114.

15. Id.

16. Id

17. See generally U.N. Charter. The U.N. Charter was signed on June 26, 1945 and entered into force October 24, 1945.

18. Alston, Philip and Steiner, Henry J (1996). International Human Rights in Context: Law, Politics, Morals, p 118.

19. Universal Declaration of Human Rights, GA Res 217A(III), UN Doc. A/810 (1948) <http://www.unhchr.ch/udhr/index.htm> (hereinafter UDHR).

20. International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), <http://www.unhchr.ch/html/ menu3/b/a_cescr.htm> (hereinafter ICESR).

21. International Covenant on Civil and Political Rights, GA Res 2200A (XXI), U.N. GAOR, 21st Sess, UN Doc. A/6316 (1966),
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