Sexual and reproductive rights at the United Nations: frustration or fulfilment?

Abstract

Over the past 20 years, advocates have gained formal recognition for some rights in sexuality and reproduction and established the application of human rights standards to sexual and reproductive health issues more generally. However, careful reflection on the state of norm development across sexuality and reproduction as a field reveals fractures and stagnation in the development of standards, and a lack of synergy among advocates and between frameworks for similar rights. This paper seeks to stimulate a more careful accounting for these realities. It examines the formal processes and rules guiding standard-setting, in light of the different intellectual and ideological genealogies of sexual and reproductive rights. We use (homo)sexual orientation and abortion as case studies of current high-profile human rights standard-setting, with specific attention to the contemporary state of human rights law-making in the United Nations today. By placing these two issues in conjunction, we seek to make visible relationships between the vicious political debates in the UN on abortion and sexual orientation, and the multiple and sometimes divergent statements of independent experts and expert bodies in the UN human rights system on these and other sexual and reproductive rights issues. We offer no answers but seek to highlight the need for more investigation and self-reflection by advocates and scholars on how these forces operate and how to work with them.

Résumé

Ces 20 dernières années, le plaidoyer a obtenu la reconnaissance de certains droits en matière de sexualité et de procréation, et établi une application plus généralisée des normes des droits de l'homme aux questions de santé génésique. Néanmoins, une réflexion attentive révèle des fractures et une stagnation dans la formulation de normes sur la sexualité et la procréation, et un manque de synergie parmi les activistes et entre des cadres pour des droits similaires. Cet article s'efforce d'encourager une analyse plus précise de ces réalités. Il examine les processus formels et les règles guidant la définition des normes à la lumière des différentes généalogies intellectuelles et idéologiques des droits génésiques. Nous utilisons l'orientation (homo)sexuelle et l'avortement comme études de cas sur des questions très en vue qui font actuellement l'objet d'une formulation de normes sur les droits de l'homme, avec une attention particulière à l'état de la rédaction d'instruments juridiques relatifs aux droits de l'homme dans le système des Nations Unies aujourd'hui. En confrontant ces deux questions, nous souhaitons établir des liens visibles entre les débats politiques virulents aux Nations Unies sur l'avortement et l'orientation sexuelle, et les déclarations multiples, et parfois divergentes, d'experts indépendants et d'organes spécialisés du système des Nations Unies sur ces questions et d'autres en rapport avec les droits génésiques. Nous ne proposons pas de réponse, mais voulons souligner la nécessité pour les activistes et les chercheurs d'élargir leurs recherches et leur autoréflexion sur la manière dont ces forces opèrent et comment il est possible de travailler avec elles.

Resumen

En los últimos 20 años, los defensores de los derechos humanos lograron cierto reconocimiento oficial de algunos derechos en sexualidad y reproducción y establecieron la aplicación de los estándares de derechos humanos a los asuntos de salud sexual y reproductiva en general. No obstante, una cuidadosa reflexión sobre el estado de la elaboración de normas en el campo de la sexualidad y reproducción revela fracturas y estancamiento en la elaboración de estándares y falta de sinergia entre defensores y entre los marcos de similares derechos. Este artículo intenta estimular una explicación más cuidadosa de estas realidades. Se examinan los procesos y las reglas oficiales que guían el establecimiento de estándares, en vista de las diferentes genealogías intelectuales e ideológicas de los derechos sexuales y reproductivos. Se utilizan la orientación (homo)sexual y el aborto como estudios de casos de temas preponderantes en la actualidad con relación a la elaboración de estándares de derechos humanos, prestando atención específica al estado contemporáneo del proceso legislativo de los derechos humanos en las Naciones Unidas. Al plantear estos dos asuntos en conjunción, procuramos crear relaciones visibles entre los despiadados debates políticos de las Naciones Unidas respecto al aborto y la orientación sexual, y las múltiples y a veces divergentes declaraciones de expertos independientes y organismos de las Naciones Unidas expertos en el sistema de derechos humanos, con relación a estos y otros asuntos de derechos sexuales y reproductivos. No ofrecemos respuestas sino que procuramos destacar la necesidad de realizar más investigaciones y de que los defensores y especialistas reflexionen sobre cómo funcionan estas fuerzas y cómo se debe trabajar con ellas.

Key Words:

• human rights
• sexual rights
• reproductive rights
• United Nations

We are at a volatile moment for sexual and reproductive rights globally. Over the past 20 years, advocates have gained formal recognition for some rights in sexuality and reproduction and generally established the application of human rights standards to sexual and reproductive health issues, establishing “sexual and reproductive rights” as a valid field of work and study. Today, sexual rights advocacy in particular has reached what seems to be a crescendo – with major advocacy documents such as the Yogyakarta Principles on Sexual Orientation and Gender Identity, and the International Planned Parenthood Federation's (IPPF) Declaration on Sexual Rights,^* and substantial advocacy debates on sexual rights issues in almost every body of the UN human rights system. Yet the evolution of international human rights law on sexuality and reproduction is an uneven process, with notable advances in some areas, and stagnation, even backsliding in others.

Take abortion and (homo) sexual orientation,^{1 †} for example, two high-profile components of sexual and reproductive rights, which are each the subject of extensive rights advocacy. At time of writing, only one expert in the UN human rights system has dared to address abortion as an autonomous right, to which access in general ought to be decriminalized as an element of non-discrimination between women and men. This expert's shot-across-the-bow report – which has not yet been debated – stands out in its isolation from the incremental but limited successes on abortion rights over the last twenty years.² However, many expert voices in the same UN human rights system affirm the importance of decriminalization of same-sex sexual behaviour and advocate for non-discrimination to protect (homo)sexual orientation, full stop.³ Underlying both issues are the same human rights claims to respect the privacy, autonomy, non-discrimination, health, security, and dignity of the person. And behind these issues, working with UN bodies, are networks of advocates working on sexual and reproductive rights issues. At the same time, there are states affirming or denying the validity and authority of these expert and advocacy voices.

What accounts for this gross asymmetry within and across rights related to sexuality and reproduction? This essay is an opening foray into accounting for, and hopefully stimulating discussion on, this unevenness within the field. It is offered in the spirit of constructive provocation: are these fractures inevitable, and are they acceptable? Do they suggest the need for some re-examination of the sexual and gender politics that permeate advocacy and standard-setting, as they suggest that the current process of standard-setting for human rights has been stymied? Or is human rights standard-setting uniquely stymied by sexual and reproductive rights, and by some rights more than others?

We believe such doctrinal hiccups are not unique to sexual and reproductive rights. The uneven development of the canon of human rights has always reflected and refracted specific political contingencies and compromises associated with each new norm, despite the tales told of progressive evolution over the generations of rights. However, we still think the particular fractures within the field of sexual and reproductive rights bear closer investigation, as fractures in the world of human rights and as fractures within the universe of sexuality and reproduction.

In this essay, we examine (homo)sexual orientation and abortion as two issues in the universe of sexual and reproductive rights, and as current subjects of human rights standard-setting. We do so with specific attention to the contemporary state of human rights law-making in the United Nations today, within the context of the current political economy of advocacy, but we do not fully explore the mechanics of how NGO advocacy tends to silo claims in sexual and reproductive rights. In our work elsewhere, however, we have highlighted concerns with the way the current practice of rights advocacy is selective to the point of being arbitrary. For example, campaigns against the unjustness of execution of women accused of heterosexual sex outside of marriage (adultery or fornication) have not called for these to be decriminalized (as an aspect of privacy rights), and others calling for decriminalization of consensual same-sex sexual behaviour remain silent on criminalization of consensual heterosexual sex.⁴

This contrasts starkly with the advocacy of opponents of sexual and reproductive rights, such as the Holy See and the Organization of the Islamic Conference and their NGO allies. These entities join the issues up: they link up their opposition to formal equality of rights between the sexes, discussion of gender as distinct and uncoupled from sexed bodies, condemnation of same-sex sexual behaviour as well as abortion, and they are now “defending” a status quo of universally accepted human rights from the “dangers” of sexual rights. These actors may differ in their particular postures on sexual and reproductive morality and law, but they have a united front against the advance of gender equality and sexual and reproductive rights.

We think the tendency in international human rights law toward both fragmentation (given the lack of final arbiters across political and expert bodies regarding the status of certain issues) and multiplicity of approaches (in the sense of different rights approaches to a common issue, such as framing the issue within health or non-discrimination or privacy) plays out with particular force in sexual and reproductive rights today. The multiplicity of approaches allows space for change, which advocates exploit, but in light of the dynamics between the various political and expert bodies, it also allows for uncertainty and a kind of political blackmail or “chill” on highly contentious issues. By focusing on the status of norm creation around sexual orientation, at the centre of much sexual rights advocacy, and abortion, at the centre of conflict over reproductive rights, we hope to show that this “chill” is built into the UN system with particular power today.

We begin with an examination of the formal processes and rules guiding standard-setting, and briefly review the intellectual and ideological genealogies of sexual and reproductive rights. We consider two case studies (an unexpected breakthrough in late 2010 on sexual orientation and gender identity in the Committee that monitors the Convention on All Forms of Discrimination against Women (CEDAW) and the ongoing contestation regarding sexual and reproductive health rights in the Convention on Economic and Social and Cultural Rights (CESCR) in 2011, with its mosaic of possible standards and lightening rod debate over abortion. Lastly, we try to make visible what is often elided (or treated as intuitive) in narratives of sexual and reproductive rights at the UN: the relationship between the vicious debates in the UN General Assembly on abortion and sexual orientation, and the far more supportive but diverse statements of experts in the Human Right Council and on the treaty monitoring bodies, on these and other sexual and reproductive rights issues. And we offer a realistic account of the way in which the UN's political and independent rights bodies are in continuous but contentious, often contradictory conversation with each other. Our account differs therefore from the narratives of inevitable, continuous forward progress currently dominating the field of sexual and reproductive rights.

We do not provide answers, but rather seek to make clear the need for more investigation and self-reflection by advocates and scholars on how these forces operate.

Sexual and reproductive rights: starting points

The terms sexual rights and reproductive rights – and “sexual and reproductive rights” taken together – have a common doctrinal framework, and distinct advocacy genealogies. Sexual and reproductive rights embrace the right to information, expression, education and services, freedom from violence and torture, and cruel, inhuman and degrading treatment, and they encompass the right to material conditions of life, as well as autonomy – thus, covering economic rights as well as privacy rights, and including freedom from discrimination in public and private life. While both sexual and reproductive rights claims have a common grounding in these other rights, they have been theorized differently: reproduction (and heterosexuality) in the last two decades have been more “naturalized” and less theorized today as a question of social production. Sexuality, on the other hand, being more recent in its appearance, has been explicitly addressed in the last decade as being socially produced – with advocates joining scholars to argue about both “naturalness” and social construction.⁴⁵ We have an intuition that naturalization – and even medicalization – of reproduction and heterosexuality encourage fragmentation in claims-making today, overlaid with the specific international legal histories of each.

“Reproductive rights” has its international conceptual anchor in the 1994 International Conference on Population and Development (ICPD) Programme of Action and arguably has the prior claim to international legal probity over the term “sexual rights”. Predicated on reproductive health,^* reproductive rights are now defined to “rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence”.⁶ They include safe pregnancy as well as the right to support for reproduction (social reproduction). At the same time, although ICPD established reproductive rights as an acceptable application of rights, it also included explicitly negotiated compromise language on the right of access to abortion: where legal it must be accessible; where illegal, women should not die or face morbidity because of the effects of illegal and unsafe abortion.⁷

At the 4th World Conference on Women in 1995 in Beijing, sexual rights almost appeared in Paragraph 96, which stated: “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality…”⁸ This language only addressed the application of human rights to women in the context of sexuality, and still implicitly within the cover of reproductive health and rights, or freedom from violence. Yet it was a toe-hold, and we see the expansion of sexual rights to include rights associated with men and women, with affirmative sexual conduct and sexual orientation claims, as well as claims related to the choice to link sexual activity to reproduction – or not to link it – over the last decade. It is still fair to say that some advocates treat reproductive rights as a women's rights issue, as many of the same individuals worked on violence against women and women's equality issues, and similarly assume sexual and reproductive rights are co-terminus.^* Of course, many advocates do not and have a more inclusive understanding of sexual and reproductive behaviours and meanings for many different persons.⁹

In the last decade, an identifiable sexual rights movement has emerged, with distinct NGO affiliates, such as the Sexual Rights Initiative or the Youth Coalition for Sexual and Reproductive Health. Understandings of sexual rights are forged from historically disparate concerns and social movements of the last two decades, including movements around men who have sex with men, identified gay and lesbian groups, HIV health and rights groups, and women's health and rights groups, especially those responding to sexual violence. Each of these has its own legacy, including specific advocacy strategies and UN human rights goals which they have adopted.

Sexual and reproductive rights as treaty-based human rights law

NGOs increasingly became active in sexual and reproductive rights “norm generation” during the 1990s, spurred on by the successes at UN conferences, and by the stated willingness of the independent human rights bodies to use ICPD and Beijing as standards for interpreting States Parties' obligations in relevant areas. In order to understand the implications for sexual and reproductive rights coherence (as these norms get produced), we must overlay the apparatus of international human rights law. This requires some definitional and methodological background.

International human rights law, as part of international law, is classically understood to be made by sovereign states in order to regulate their interactions with each other as states, and increasingly to guide their actions toward persons and things under their control.¹⁰ Nation states are the authoritative players in this world, each formally equal to each other, and each capable in their sovereignty of binding or contracting themselves to agreements which must be followed once ratified, irrespective of changing politics or administration. Such binding agreements, called treaties, are one of the few sources of international human rights law.^† The treaty itself is binding (or hard) law; in the regional systems (and in the International Court of Justice) decisions of the courts regarding a treaty are also hard law, but in the UN system the work of the expert treaty bodies, while authoritative, is not by itself binding; hence, it is categorized as “soft law”. This question of who decides and how they decide what a treaty means, as a matter of binding law, is a central aspect of the complexity of the fight over sexual and reproductive rights. But states remain key voices: they must accept the validity of any determination of the scope of a law.

Treaties, as with any legal text, require interpretation, and there is a world of formal principles guiding international treaty interpretation and application. But scholars and experts agree that while there are rules to guide these (primarily the Vienna Convention on the Law of Treaties regime),¹¹ one of the complexities of international law is the absence of any central or final decision-maker – across both international and regional human rights regimes, and international criminal and humanitarian law regimes, all of which address sexual and reproductive rights. This leads to confusion in determining what the legal standard is on any given sexual or reproductive right, within the context of distinct approaches to the same problem across regional and international legal systems, or even within the same (UN) system.^* This problem, which is vexing for states, is linked with another problem: the multiplicity of treaties and diverse sites and approaches of UN human rights standard-setting, in particular the built-in tension between UN member states as the ultimate arbiters of legal rights, and expert treaty bodies and other independent experts as persuasive (and inconsistent) guides to the treaty standards.

Sexual and reproductive rights: how new issues are “interpreted into” the treaties

For sexual rights, as much if not more than for reproductive rights, interpretation has been a key aspect of progress. Reproductive rights as a binding aspect of human rights first appear explicitly in the Convention on the Elimination of All Forms of Discrimination against Women in 1979, in which the notion that women's equality is related to their ability to choose the number and spacing of their children (Article 16). Thus, reproductive rights have an initial (women-specific) treaty anchor. Therefore, in the mid-1990s advocates working to make sexuality visible could turn to CEDAW and argue that nested in this concept was women's power to consent (or not) to sex. The extent to which power – including the power to say yes or no to sexual activity – played a determining role in reproduction was NOT initially fully acknowledged in the work of the Committee monitoring CEDAW, even though the treaty focused on the inequalities between women and men as a social and legal matter. Other treaties – and their monitoring bodies – were initially mostly silent in their texts on reproduction and sexuality, except for the Convention on the Rights of the Child. Getting sexuality, and power related to sexuality, recognized as an aspect of rights has been the work of sexual rights advocates.

A small subset of human rights texts have included textual links to sexuality, and therefore form the base of a growing set of what can be called “sexual rights”, such as rights related to the prevention of and protection from sexual violence and exploitation; access to information and services necessary for reproductive (and some aspects of sexual) health; and increasingly non-discrimination. The albeit rare textual acknowledgment of sexuality found in the texts of international law include, e.g. reference to access to contraception (determining the number and spacing of children, and the means to do so) in the Women's Convention, Article 16(e)1; protection against sexual exploitation in the Convention on the Rights of the Child, Article 24; and more recently, the wide range of sexual offences that are crimes against humanity and war crimes in the 2000 Rome Statute of the International Criminal Court, Articles 6, 7 and 8.

For the most part, the last 20 years of treaty work – through States Party reports and dialogue, and through NGO parallel or shadow reports – has been directed towards harnessing the core principles of human rights (the right to equality, privacy, health, freedom from torture, and freedom of expression) to a wide range of sexual and reproductive rights. The project of norm-building in sexual and reproductive rights has therefore become one of “persuasive interpretation” of various treaties¹² – applying core principles that are contained in the treaty to the specific facts and issues of sexuality and reproduction, and then legitimating this application through seeing acceptance in state practice in line with the expert guidance.

Guiding the (interpretive) growth of sexual and reproductive rights: formal expert processes

There are three main avenues whereby treaty bodies interpret the content of treaties: 1) the quasi-judicial petition or communications procedures, 2) general comments and recommendations appended to a treaty, and 3) concluding comments appended to the public review of States Parties' reports. While the first two (communications and general comments) are both more authoritative than concluding comments, we will focus on general comments for reasons of space and scope.

A general comment or recommendation is an authoritative guidance note issued by a treaty body to give States Parties a clearer idea of the range of obligations under that treaty. These texts are increasingly used to expand and elaborate on the scope of the treaty in light of new issues arising under it. Some examples are the International Economic, Social and Cultural Rights Covenant General Comment 14 on the right to health and General Comment 20 on non-discrimination, and the Women's Convention General Recommendation 19 on violence against women. Gender-based protections against discriminatory regulation of women's and men's behaviours are contained in the Human Rights Committee General Comment 28.¹³

The inherent tendency towards multiplicity and diversity of standards across the different treaties deserves special attention. There are now ten human rights treaties, each dealing with certain sets of rights or populations. This proliferation of treaties and their accompanying operating mechanisms drives diversity. Not all states ratify all treaties. An argument could be made – based on doctrinal notions such as indivisibility and interdependence of all human rights, which tie the treaties together conceptually – that if a state ratifies one treaty, it can be judged under that treaty by reference to the framework of analogous human rights standards in other treaties. But in practice, treaties are separately interpreted and applied. The expert treaty bodies have resisted formal integration, although they do increasingly reference each others' standards. But none of the treaties or their monitoring bodies purport to be working toward an integrated doctrinal whole of sexual or reproductive rights. There are some mechanisms for creating coherence, such as the annual meeting of treaty body chairpersons.¹⁴ Moreover, a recent notable innovation is for treaty bodies jointly to draft general comments; the Committee on the Rights of the Child and CEDAW Committee have just embarked on such an initiative.¹⁵

The experts who sit on these Committees are elected by States Parties but they ostensibly serve independently from their states' interests (i.e. they are not diplomats). Their autonomy, however, is relative; they may not take marching orders from their states, but they are nonetheless attentive if not deferential to states. The legitimacy of treaty bodies themselves is predicated upon this. In more subtle ways, geo-politics infuses the work of the treaty bodies, as each member has his or her own individual political grounding and above all is invested in the project of constructing international law. This is politics with a small “p”, but it is state-centred politics nonetheless.

Case studies: sexual orientation and abortion in CEDAW and the CESCR

To illustrate the multiplicity and ad hoc nature of the debates on sexual and reproductive rights – tracking and amplifying NGO sectarianism¹⁶ and state politics within and between sexual and reproductive rights legal claims – we examine the work of two UN treaty bodies, CEDAW and the CESCR, which have recently issued (or plan to issue) General Recommendations and Comments on sexual and reproductive rights topics.

Committee on the Elimination of all Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has played a critical but circumscribed role in the struggle for sexual and reproductive rights. Because gender relations between women and men are under review by CEDAW (through the Article 5 obligation on states to intervene in gender stereotypes, as well as through its larger focus on equality between women and men),¹⁷ CEDAW represents a key prize for both sexual and reproductive rights advocates and opponents. However, to understand the implications of CEDAW's position on sexual and reproductive rights requires analyzing CEDAW in light of the work of the other treaty bodies, as well as in the context of gender politics in the UN. This includes the creation of UN Women in July 2010 (the new UN entity whose remit is gender equality and empowerment of women), in the debates in the Human Rights Council and in regard to recent uptake of women and gender in the UN General Assembly and Security Council's work.

Looking at CEDAW in this context reveals both the strengths and weaknesses of the doctrines and practices associated with the Convention, and the UN treaty system as a whole, which play out by weakening sexual and reproductive rights' development.^{18 *} Despite more than 15 years of calls for “intersectional” analysis and gender integration, the UN system still tends to compartmentalize certain issues into the categories of women, race, or economic/social issues, although CEDAW itself increasingly emphasizes the inter-connected nature of sex, gender, race, citizenship status and other forms of discrimination. In this compartmentalization, CEDAW has historically suffered from underfunding, geographic distance from the other rights institutions, and a tendency to treat women's situation as a matter of status, culture, or social development, rather than one of rights and law.¹⁹ Today, CEDAW has more or less arrived at equal powers, and shared secretariat and methods with the other treaty bodies, but the legacy of marginalization remains visible in its work, including in the sense of “protectiveness” for the treaty felt by many women's rights advocates.²⁰ This protectiveness has only been strengthened because of CEDAW's symbolic place as the key site to address the rights of women. Because of this, it has faced particular scrutiny in the contemporary sex and culture contests of geopolitics and is more heavily and publicly scrutinized by anti-abortion and anti-sexual rights organizations than any other treaty.²¹

Finally, the different frames for claiming sexual and reproductive rights (i.e. health, violence and non-discrimination, each of which has an advocacy legacy and a treaty-specific grounding) play out in strange ways with regard to CEDAW. CEDAW's focus on discrimination against women in relation to men was used by some resistant experts to mean it could not address key aspects of human rights protections in sexual conduct, such as homosexuality among women. Other treaty bodies in contrast articulated human rights protections for same-sex conduct as early as 1994, and continuously through the last decades.³²²²³ It is a key research question to explore why CEDAW took so long (even as some NGOs and some governments at least reported on lesbians): what role was played by the NGO constituency for CEDAW, what role by the specific fears of feminists of attacks on their sexuality to undermine their credibility; what role by the inward looking Committee? What tipped the balance in 2010?

In 2010, remarkably, CEDAW explicitly recognized homosexuality among women for the first time, and identified gender identity as a prohibited ground of discrimination under its sex-based mandate.¹³ It did this in General Recommendation 27 on older women and protection of their human rights, and General Recommendation 28 on the core obligations of States Parties under Article 2. The phrase of inclusion in both Recommendations was “sexual orientation and gender identity” (SOGI). With this particular phrasing, CEDAW's work reflects the advocacy around the construct of sexual orientation and gender identity as the best way to encapsulate diversity of sexual practice, expression and identity.^† General Recommendation 28 is an important statement of the overall nature of state obligations, focusing on Article 2, which sets out the core commitments that States Parties undertake in ratifying CEDAW.²⁴ “SOGI” appear in the section that addresses “inter-sectionality” – the framework which notes how sex- and gender-based discrimination against women are inextricably linked with other factors, such as race, ethnicity, religion or belief, health, status, age, class, caste, which affect women in their enjoyment of rights.

The implications of inclusion of the terms “sexual orientation” and “gender identity” had been little explored by CEDAW prior to their inclusion. On the one hand, the notion that women, regardless of their sexual orientation (as noted above, a very specific term) or transwomen (i.e. persons of diverse gender identities), are now covered under CEDAW is a considerable step forward. And to the extent that some of us are concerned about lesbian invisibility in sexual orientation and gender identity, it is an important tactical base for increased documentation.²⁵ However, questions remain: Do pre-operative transwomen or transpersons who do not wish to modify their bodies count as women under CEDAW? What about women whose practices do not conform to gendered expectations (e.g. who wear trousers, live outside of marriage as adult women)? Is this expression sufficient to merit a protection under “identity”? Is sexual orientation an identity to be claimed or a status ascribed to any same-sex sexual practice between women? We are hopeful that CEDAW will incorporate the most comprehensive and culturally diverse understanding of these terms, but the experts on the Committee will need expansive and progressive support to take these terms on, as the Committee has thus far not shown leadership in this area.

With regard to abortion, however, CEDAW appears to be distancing itself rather than moving forward. In the past, CEDAW issued a number of early General Recommendations that have a direct purchase on sexuality and reproductive health and rights – General Recommendation 19 on violence against women (1992) and General Recommendation 24 on health (1999). This latter recommendation indirectly supported a right to access abortion, notably lying at the intersection of non-discrimination and health issues specific to women:

“It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.” ²⁶

This carefully-worded, indeed nearly opaque, statement is the most direct engagement with abortion the Committee has attempted in over ten years in its General Recommendations guiding states on their obligations under the Convention. In individual country comments, the treaty body has gone further in statements in support of access (such as its 2008 comments to the United Kingdom regarding the unequal criminal restrictions faced by women in Northern Ireland),²⁷ but these comments, while suggestive of the direction the Committee might take overall, are not at the same rank of law as the General Comments. Instead, CEDAW has tended to follow the ICPD compromise agreement on abortion, focusing on the harms facing women from unsafe and illegal abortions, and uses the health/discrimination lens to address the collateral, rather than the core, harm of abortion law. This approach has the benefit of using health and discrimination to reveal the harms flowing from the criminalization of abortion, but has the disadvantage of not addressing what many advocates see as the primary rights-related harm of restricting abortion: that women are denied the right of autonomous decision-making (regarding the outcomes of sexual conduct and specifically to determining the course of their life – to be parents or not at a particular moment). This denial is discriminatory; only girls and women face this denial in just this way due to restrictions on abortion, but the right to privacy, participation and bodily integrity are also violated.

However, it is exactly a head-on attack on restrictive abortion laws through a comprehensive discrimination and privacy-based rights analysis that this Committee seeks to avoid, fearing no doubt that some states would mount a challenge to its legitimacy. CEDAW has no textual language on the right to privacy as the basis of such a right (although one could arguably construct such a claim today.) Yet CEDAW has now accepted a frontal attack for its admirable step of incorporating sexual and gender diversity among women under its discrimination mandate. What is it about NGO advocacy, state positioning, and human rights doctrine that produces such disparate moves from the same body?

The Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social, and Cultural Rights (CESCR) has not shied away from sexual and reproductive rights issues, principally understanding them as matters related to the right to health. During the same time period as CEDAW's initial 1999 embrace of health as a tentative site for supporting some aspects of sexuality and reproduction, the CESCR directly addressed the importance of sexual and reproductive health as a component part of health in its General Comment 14 on the Right to Health in 2000. CESCR treated sexual and reproductive health in the spirit of ICPD and Beijing, stressing that the right to health includes “… the right to control one's health and body, including sexual and reproductive freedom…”²⁸ The term abortion does not appear at all in the document and to the extent pregnancy termination services are intimated, it is in the context of safe pregnancy.²⁹ Protection in the CESCR on the basis of sexual orientation first appeared in this General Comment in 2000, however.

The CESCR has strongly engaged with gender equality (as distinct from the more recent concerns with gender identity equality) in its past work on access and enjoyment of all social, economic and cultural rights in its General Comment 16 (the Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights)³⁰ and non-discrimination on the basis of sexual orientation and now gender identity in its General Comment 20 (Non-Discrimination in Economic, Social and Cultural Rights).²²

Given the pains CEDAW has taken to get to homosexuality (and gender identity), it is a small irony that (homo)sexual orientation at least has been named as a basis for non-discrimination for over a decade by CESCR (and of course by the Human Rights Committee for close to 20 years). CESCR has taken a complementary approach in both these general comments, directing states to remove legal, administrative and budgetary measures that impede equal access on the basis of gender (and now gender identity) to the entire range of social and economic rights (except marriage, as in Article 10 on marriage and family) and in taking positive measures to similarly ensure non-discriminatory access to all services and resources. As regards sexual rights (beyond sexual orientation), it is intimated but not named in General Comment 16's particular attention to gender-based violence as impeding equality between women and men, for example. Among the notable advances in approach in General Comment 20, drawing on General Comment 14, is the specific mention of sexual orientation and gender identity, as well as the explicit citation to the Yogyakarta Principles.²²

Unlike CEDAW, the CESCR approach to sexuality rights has not provoked explicit political ire externally. That it has been able to explicitly reference to equality of persons of diverse sexual orientations and transgendered persons to enjoy economic and social rights is noteworthy, especially for the inclusive consultation with NGOs in the process. This lack of strife surrounding sexuality (as sexual health) may be short-lived, as the CESCR has decided to address anew the “right” to sexual and reproductive health directly, and may well have to take a stand on abortion as part of it. Abortion, as well as rights of persons in sex work, are among the issues that the Committee has signalled an interest in addressing. While it has so far dodged direct attack for its work on SOGI, will the inclusion of abortion and sex work bring out political interests that will explode its “health” shield? CESCR held a Day of General Discussion on 15 November 2010 on “the right to reproductive and sexual health” in the practice of treaty body committees; such a meeting is a prelude to issuing a General Comment.³¹

What will be the scope and content of the General Comment? The exact content of this future General Comment can only be surmised based on the 15 November 2010 Day of General Discussion as well as a few antecedent meetings with scholars, NGOs and UN agencies. What is most likely is that this General Comment, framed as a right to sexual and reproductive health, will hew closely to CESCR's interpretation of the right to health in its General Comment 14.

What does this mean? CESCR's embrace of health a decade ago as a site for sexual and reproductive rights, both enabled and constrained rights claiming around some of the most contentious issues of that time, then HIV status and sexual orientation, but abortion was not understood to be on the agenda. In the past, talking about “sex” as if it were principally a matter of health was a strategic, rhetorical move. It led to bolstering some aspects of individual liberty, especially protected by privacy, and bracketing concerns about morality, by permitting state regulation only to promote health and protect from injury. Health talk might have been detrimental in that it could have obscured the complex politics around sexuality and reproduction – many scholars were concerned that identity and other liberationist claims and activity surrounding sexuality and gender would be instrumentalized to health outcomes.³²

Thus, CESCR's very early embrace of sexual orientation was initially framed as non-discrimination in health, but today, we argue, the very legalistic and civil and political rights framing of “SOGI” in the Yogyakarta Principles set sexual orientation and gender identity free from health, even as CESCR's overall health-oriented approach would seem to confer continuing legitimacy across all rights.⁵

Health as the frame for sexual rights may have reached the end of its utility in the arguments for women’s rights to decision-making in regard to abortion, where autonomy may be better grounded in equality, non-discrimination, dignity, and privacy, as opposed to primarily grounded in health. Arguments for safe, legal abortion sometimes invoke protection of health, mental health and life as grounds or to prevent a public health harm (e.g. maternal mortality and morbidity); similar arguments extend for treating the consequences of unsafe abortion (especially where pregnancy termination is illegal). However, even health justifications have not yet fully triumphed even when marshalled to claim that women, as a component of their enfranchisement in humanity, have autonomy in decision-making that extends to their impregnated uterus.^* In contemporary struggles over abortion, the adverse health consequences of unsafe abortion have made some headway, but they still face the much more absolutist claims of anti-abortion activists of fetal right to life and the gross immorality of abortion (and the sex which led to it). The cover that the CESCR gained from health may have lost its powers.

At the 2010 Day of General Discussion, the CESCR faced an onslaught of vocal opposition from states allied to the Organization of the Islamic Conference and the Holy See, who challenged the authority of CESCR to issue a General Comment that they believed “overreached”. These governments implicitly threatened to remove such authority from CESCR, something signatories to the treaty could in theory do (although has in fact never been done). The work of treaty bodies has rarely before been so vulnerable to the political posturing of states that is common in the political bodies.

Additionally, representatives of anti-abortion civil society repeatedly took the floor at the Day of General Discussion and trotted out canards such as claiming that abortion causes breast cancer; others told tales of their mental illness, attributed to having had an abortion. These same NGOs operate in other treaty bodies and raise similar opposition and advertise their concerns on blogs and to states in political settings.^† There is concerted pressure on CESCR to refrain from adopting a General Comment on the right to sexual and reproductive health. Should CESCR give in to this pressure, in whole or more likely in part, the content of the General Comment will to some extent have been censored, and represent a potential clawing back of what little exists in international human rights standards for establishing grounds for abortion. This could not only set back reproductive rights advocacy nationally and internationally, but also damage the generation of international human rights norms.

Much will turn on the content. An expansive, progressive sexual and reproductive health and rights agenda, based on notions of autonomy, we would argue, addresses many issues: non-discrimination, access to information, contraception and family planning, abortion, safe pregnancy, and an end to violence against women (including female genital mutilation and honour crimes), HIV and sexually transmitted infections, marriage and family, same-sex behaviour and rights to freedom of sexual orientation and gender identity/expression, and to do sex work.³³ Some of these are the hot button issues that CESCR might choose to avoid for its own reasons. Cherry-picking issues, however, will once again fracture the conceptual clarity that sexual and reproductive rights norms should contain and provide. Should CESCR choose to accede in some fashion to State Party resistance, and/or face a direct challenge by such states to limit its interpretive authority, the consequences could have far-reaching effects to limit and undermine the work of UN treaty monitoring bodies across the board.

Beyond the issue of incoherence, are the stakes of legitimizing key contested rights. This is where we see geo-cultural politics now explicitly entering the work of the treaty bodies. Actors across the spectrum of political and sexual hierarchies would like to see this General Comment of the CESCR articulate their own, often opposed definitions of sexual and reproductive rights. The established targets grounded in the ICPD Programme of Action, Beijing Declaration and Platform for Action, and Millennium Development Goals (MDGs) are time limited, and were set to end in 2015, although ICPD has recently been indefinitely extended by a States Parties resolution at the December 2010 UN Commission on Population and Development. What this will mean concretely for national governmental and global inter-governmental projects remains to be seen. Therefore, authoritative guidance from a human rights treaty body could have enormous weight, and depending on its content, could facilitate, or hinder, the work of rights and health advocates, UN agencies (such as UNFPA), and governments.

From these examinations of two key treaty bodies in sexual and reproductive rights, we can see that although the independent treaty committee's expert work may show restraint as touted in the case books, the reasons are not simply attributable to sober judicial methods. Moreover, close examination shows that while the treaty bodies' methods are often deliberate, more researched and lawyerly than at the General Assembly, for example,³⁴ they are hardly consistent, either in light of their own work or across the work of the UN human rights treaty monitoring system. By focusing on CEDAW and CESCR we have downplayed the work of the other treaty bodies, some of whom have been more progressive, but even those entities are not consistent – or fully progressive.³⁵ Yet, because of the state-centric nature of international law, independent treaty bodies must work incrementally because they cannot go, in fact, beyond what the states, en gros, can be persuaded to accept. While treaty bodies can progressively push the envelope of state standards to include sexual and reproductive rights (if they in turn are pushed by advocates), they cannot push beyond what some critical mass of states will accept as a valid interpretation. It is this “creative tension” – between expert elaboration, based on analogy, and state acceptance, that generate so much heat, as it were. And it is to the political furnaces of pushback and encouragement that we turn next for our final reflections.

Shocked, shocked at the politics in my human rights law: the political bodies of the UN

The treaty bodies are being squeezed politically from two sides: on one side from debates on sexual and reproductive rights raging simultaneously in the UN political bodies (e.g. Human Rights Council and General Assembly), and from the other side by polarized, geo-politically motivated actors in the treaty body monitoring process. The treaty experts, therefore, are not only interpreting the text of human rights law as they engage with sexuality and reproduction, but glancing over their shoulders at the states. This is the design of the UN's state-centric system: human rights law is meant to push the states forward, but never be divorced from the states' power. We are not claiming the politicization of rights in the treaty bodies is new, but that the specific politics of sexuality and reproduction require new research in this moment of their eruption in the human rights system. While politics is built into the UN's mandate, including its human rights mandate, it may be that there are particular effects we need to understand in the highly contested contemporary fields of sexual and reproductive rights.³⁶

An understanding of these processes and politics requires a reappraisal of the UN “charter-based” or political bodies concerned with human rights.^* Classically understood, here states speak their interests as states, although their international stances may reflect their national executives rather than the national representative/legislative bodies. The UN Charter ascribes human rights oversight to a number of these states bodies: the UN General Assembly, which has the power to draft treaties and adopt resolutions indicative of norms which states ought to follow, like the Universal Declaration of Human Rights, the now Human Rights Council (reformed from the original Charter Commission on Human Rights),³⁷ and increasingly the UN Security Council, which has begun taking up issues of human rights and at least some aspects of sexual and reproductive rights (specifically their focus on protecting women from sexual assault) in conflict.^† In each of these bodies, states vote on resolutions (even as NGOs play a role in pushing and shaping these resolutions), with full awareness that their actions are understood to contribute to the shape of human rights. Overall, the game of states in these venues falls between the poles of incremental moves forward, or reaffirming existing standards and commitments and refusing to go beyond them.

The independent mechanisms of the Human Rights Council generally follow a process of developing rights by analogy and interpretation: they can draw on the full range of treaties when they make general claims,⁴ but they must still base their claims on what a right includes on persuasive principles of interpretation as well as reference the work of other international human rights legal experts, and states' practices and policies. Moreover, resolutions related to non-discrimination on HIV status (as a proxy for sexual orientation) have previously been passed by the former Commission on Human Rights; resolutions on gender equality have been recently less controversial. As we have noted, sexual rights, particularly in the form of protections for same-sex sexual behaviour, have proceeded apace in the treaty bodies. But these treaty bodies engage with States Parties as individual states, and the states' experiences gained in these interactions were clearly not incorporated in many cases as politically noteworthy.

Again, this speaks both to the multiplicity of standards, diversity and inconsistency of approaches to problems. With regard to sexual and reproductive rights, the political bodies have become key sites of contestation – the last decade has brought regular and increasingly polarized stand-offs over specific issues in sexual and reproductive rights: same-sex sexual activity, abortion, marital rape in heterosexual marriage and sexual education to name a few. These fights, and the on-going advocacy by NGOs who regularly look for opportunities to use the political spaces of the Human Rights Council, the UN General Assembly and Security Council as dramatic stages to set their claims can be seen as “incitements to discourse”^* in which positioning over sexual rectitude has become a kind of post-Cold War alignment process.^† A few examples will have to stand in for the many: what is notable is that the forms of attack are simultaneously on the rights at issue and on the legitimacy of the entities proposing them.^**

At the Human Rights Council sessions in June and July 2010, two Special Rapporteurs (Anand Grover on the Right to Health and Vernor Munoz on the Right to Education) were both subject to attacks on their substantive proposals – in Grover's case, on de-criminalization of sex for money, same-sex behaviour, and HIV transmission; in Munoz' case, on the scope of sexuality education, including education aimed at unseating traditional gender roles and privileges.³⁸

These proposals, couched in human rights terms, were not news to the states. Yet certain states accused both men of exceeding their mandates; Munoz faced the additional rebuke that his report had not been adopted for referral to the General Assembly. The debates were furious and NGO advocates were unprepared for them, in part apparently because of lack of warning about the timing of the reports. Both Rapporteurs faced ad hominem attacks as well as substantial attacks on the scope of their reports.

The General Assembly may be home to the most shining examples of political theatre on sexual orientation. Since 2008, advocates have worked with friendly/like-minded states to get a statement read into the General Assembly record condemning violence directed at persons for same-sex sexual behaviour, (homo)sexual orientation or gender identity.³⁹ Countering them, Syria, on behalf of a group of States Parties, read a statement into the record that specifically referenced human rights as universally understood, as opposed to what they called “special rights claims” of gay, lesbian and transgendered persons. Yet the General Assembly is almost entirely a domain of the discursive; such statements have legitimating weight but no legal weight. Thus, states in the General Assembly may be working at cross purposes to the treaty bodies and the experts of the Human Rights Council.⁴⁰

When issues are raised in a collective setting, they take on an aspect of political stagecraft. Anand Grover did not, in his 2010 report, broach the topic of abortion. For his 2011 report, he decided to raise the ante on reproductive rights related to abortion and contraception by calling for the decriminalization of abortion and provision of family planning information. This report, released in September 2011, is due to be debated in the General Assembly on 24 October 2011.²

Abortion in the political bodies has until now been largely absent, as the ICPD compromise broods omnipresently over all sessions. In his 2004 report to the Council on sexual and reproductive health, the first Special Rapporteur on the Right to Health, Paul Hunt, a leading advocate on reduction of maternal mortality, addressed abortion but did not exceed the 1994 ICPD agreement in his demands.⁴¹

Yet when the Human Rights Council took up maternal mortality in June 2008, it hit the foreseeable shoals of the abortion debate. Supporters of adopting the resolution focused on the deaths of women during pregnancy and delivery as gross injustices, and a denial of the human right to life, information and family planning.⁴² Detractors, such as the Holy See, however, viewed this as beyond the purview of the Human Rights Council, claiming that it was a cover to advance abortion, a topic which had nothing to do with human rights.⁵ That abortion had not been a focus of the discussion (most states were concerned with what the Human Rights Council could do about maternal mortality) mattered little. The report risked being derailed as a result. When the resolution came up for a vote the following June, however, it was unanimous, although with an emphasis placed on development and the MDGs, rather than solely human rights.⁴³

Conclusion: What is to be done?

While advocates and scholars interested in the development of sexual and reproductive rights simultaneously decry the stagnation and trumpet the successes of the universe of sexual and reproductive rights claims, as if it were self-evident that each rights claim buoys the other, we hope our account suggests another understanding.⁴⁴ First, NGO partialities contribute significantly to the fragmentation and multiplicity of standards. Second, treaty body mandates reinforce and further separate the development of norms. This appears to be piecemeal because it is piecemeal. Yet there are additional factors that contribute to this current paradox: the UN's state-centric process, which keeps the treaty bodies tethered to States' Parties veto of their work (a tendency which is only strengthened by partially developed claims from NGOs); NGOs' practice of picking fights based on a belief that political debates can usefully function as markers of legitimation of new rights coupled with the new geopolitics of rights that makes sexuality a useful terrain for states to mark their own ascendancy (as progressive exemplars, on the one hand, or as cultural keepers of the tradition, on the other).

The fragmentation and multiplicity of standards will become even more apparent as sexual and reproductive rights advocates make even more use of the UN system. Advocates are taking abortion-related cases (through communications) and issues (through reporting reviews) to a wider range of treaty bodies today, including the Human Rights Committee and the Committee against Torture, which have been bold in censuring state practices that endanger women's health and bodily integrity where abortion is criminalized. Advocates for sexual orientation protections (increasingly sexual orientation and gender identity) have clearly been working across treaty bodies to move the experts to join those treaty bodies that have already addressed diversity of sexual orientation and gender identity.⁴⁵ But some fissures in the standards being adopted, and in the reach of the claims, are visible: gender is now a sectarian issue, with “gender” as in gender identity and in gender-based violence essentially divorced from each other as analytic terms, one understood to be about “being homosexual,” the other about being a woman. The push on “SOGI” as the preferred category of sexual and gender characteristics (given extra weight from advocacy around the Yogyakarta Principles) for which to seek more formal standard-setting in the UN system, has resulted in their rather wooden inclusion in CEDAW's mandate, that risks being frozen in time due to the heightened scrutiny sexual and reproductive matters receive there.

We propose here a research agenda to make sexual and reproductive rights advocacy more coherent. One set of queries is structural and devoted to human rights practices. Is the conventional belief of the rights activist that shining a light on a new injustice will necessarily produce a remedy in the context of sexuality and reproduction still valid in the UN today? Just how do independent experts square their role as standard-setters in international human rights, knowing that their legitimacy depends on States Parties approval? How do sexual rights and reproductive rights relate to each other politically in the political economy of standard-setting at the UN? What are the different roles played by international NGOs and powerful national NGOs? What relationship does the high profile, high value NGOs' contribution have to the receptivity of the expert bodies in the UN human rights system? Additionally, what is the traffic in doctrine between the regional bodies (especially the European Court of Human Rights) and the UN quasi-judicial bodies, such as the UN Human Rights Committee and the International Covenant on Civil and Political Rights?

A second set of inquiries tracks the ideological and symbolic weight born by sexual and reproductive rights. Is there something different at work in bringing human rights via the “modern” narrative of sexuality (whereby to know a person's sexuality is to know something about that person) and the narratives around reproduction, where women's rights to personhood appear threatened in the face of narratives of fetal personhood?

We are interested in the way the “incitement to discourse” around sex currently functions – and differs from the mostly deafening silence around abortion. For example, the “incitement to discourse” on sex focuses on violated female bodies and desiring male bodies, and has yielded better international law on rape in conflict – but not yet on rape in marriage. And this “incitement” has created momentum regarding decriminalization of adult (male) same-sex behaviour but has continued to leave lesbians and bisexuals invisible.²⁵ At the same time that sexual orientation and gender identity face incredible opposition, the publicized fights in the UN over diversity of sexual orientations also are productive; they give rise to a multiplicity of categories available to persons globally to appropriate for their self-identification.

Conversely, the fights over abortion at the international level have yielded impacts more in the character of repression, associated more with uneven retrenchment and an increasing language of morality at the global level (even as some national courts move toward loosening restrictions). Is reproduction as the favoured outcome of heterosexual sex becoming more naturalized as some forms of homosexual sex are accepted into the canon of ‘natural sex’ through our argumentation over the rights of privacy, non-discrimination, and health? Is abortion the new queer?

This article has sought to show how the sexual and gender politics of the UN are confounded by the operation of the UN's standard-setting practices. We seek scholars across many disciplines to engage in further research. Until we have more grounded answers to these kinds of questions, we are working under the effect of a kind of magical thinking, believing that all advocacy is good advocacy, that battles should be waged everywhere and norms always fought for, no matter how slight their weight, because progress is inevitable. We may learn that all international norm-building is sui generis, subject to the vagaries of time and accident. Or we may learn that struggling for recognition of sexual and reproductive rights in the UN political bodies today leads to predictable contestation, as the notion of the human, the citizen, is redefined in the debates among the states. We may find better explanations for the fissures between the acceptance of some sexual rights and some reproductive rights: what distinct roles do sexuality and gender play when linked to differently gendered and sexed bodies? Pragmatically, we may find that it diverts significant human and financial resources away from national or other contexts, even that it closes political space – and so on. The volatility of the responses produced by these topics, and resistance by many state and non-state actors to sexual and reproductive rights, is a reminder of the fact that sexuality, gender and reproduction joined to rights do indeed challenge and shift and potentially reconstitute the nature of the state and state power. The struggle is in this way evidence of why some of us sought to join human rights to these questions in the first place. It is also evidence that we may not fully understand the explosive terrain of our own claims.

Acknowledgements

This article is a revised and greatly shortened version of “Normalizing sex and its discontents: establishing sexual rights in international law.” Harvard Journal of Law & Gender 2011;34:2, and is reprinted with the permission of the President and Fellows of Harvard College.

Notes

* The Yogyakarta Principles can be found at: <www.yogyakartaprinciples.org/>. The IPPF Declaration is at: <www.ippf.org/en/Resources/Statements/Sexual+rights+an+IPPF+declaration.htm>.

† The term “sexual orientation” is historically specific and culturally limited in its origins and its application; a modern term, it speaks to the categorization of persons based on the sex/gender of the persons to whom they are erotically attracted.

* The World Health Organization's understanding of reproductive health is set out at: <www.who.int/topics/reproductive_health/en/>.

* Women are the imagined primary interested parties in reproductive rights because it is women's bodies which become pregnant.

† In addition to treaties, custom is another source of international law (law divined by reference to the accumulation of practice of nations and their sense that their practice is in conformity to some standard).

* For each country, the relevant legal standard is determined by whether that particular law is actually applicable (i.e. if that country is party to the specific legal regime which produced that standard) and then determining and applying the relevant standard to the specific facts. Trouble can result when a country is party to legal regimes that have come to incongruent results.

* Andrew Byrnes precociously noted the “myopia” of the UN system in regard to women's rights in 1992.

† Sexual orientation and gender identity (SOGI) is the basis of the non-discrimination claims of the Yogyakarta Principles: It is interesting to explore the history of SOGI and the particular role played by the Yogyakarta Principles in solidifying the dominance of SOGI as the term describing diversity of sexuality and gender, which was understood as an advance over the western identified LGBT.

* Arguably, one could think about health being capaciously inclusive, including structural and moral aspects, but this understanding would still clash with the nonhealth-based moral absolutes of opponents of abortion.

† See, for example, Catholic Families & Human Rights Institute(C-FAM) and its UN blog <www.turtlebayandbeyond.org/>. See also United Families International <http://unitedfamiliesinternational.wordpress.com/category/abortion/>.

* Their mandates are set out in the UN Charter, as opposed to the independent expert treaty bodies described above, whose mandates are generally derived from treaties drafted by states under the aegis of the Charter bodies.

† While some of the Security Council's resolutions are binding international law (those adopted under Chapter VII, threats to peace and security) many others are not. The many resolutions of the Security Council on sexual violence, say, which relates to sexual rights (e.g. Security Council Resolutions 1325, 1820, 1888, 1889 and 1890) are programmatic, but NOT law-making resolutions.

* We take this phrase from the work of Francoise Girard, and her analysis of sexuality in the UN.

† While the UN General Assembly has the power to make binding law – by the treaties adopted by their vote, the bulk of the resolutions of the UN General Assembly are soft law. Similarly, the Security Council work relating to sexual and reproductive health tends toward non-binding resolutions. And the Human Rights Council has been among the most criticized of the political bodies that develop rights norms.

** Human rights has always been the topic of fierce attacks and resistance. We are not claiming a uniquely hostile environment to rights but we are calling attention to the specific shape and form of the attacks.