Sexual and reproductive rights and the human rights agenda: controversial and contested

Abstract

In this paper I share some of my experience and observations, as an advocate for women's rights, of the last 20 years of struggles for sexual and reproductive health and rights, carried out in many key places where these issues have been debated and decided. I do not aspire to be comprehensive about the current status of human rights related to sexuality and reproduction. Given that my expertise is of a practical (rather than theoretical) nature, the complexity of the topic and contradictory events with regard to it, which take place almost everyday, I will highlight some selected achievements and setbacks in this area, particularly regarding abortion rights. I will provide examples of how human rights related to sexual and reproductive health have been addressed in UN policy-setting bodies, such as the Commission on the Status of Women and Commission on Population and Development, as well as in the UN human rights system such as Treaty Monitoring Bodies and Human Rights Council. Given my work with European institutions, I provide examples of important decisions by the Council of Europe and the European Court of Human Rights. Lastly, I discuss growing opposition to a progressive human rights agenda and the universality of human rights. Despite significant successes, sexual and reproductive rights will long remain controversial and contested. Hence, it is crucial to try to find new ways to engage and new partners to work with.

Résumé

Dans cet article, je partage certaines de mes expériences et observations de militante pour les droits des femmes recueillies au cours des 20 dernières années de combat pour la santé et les droits génésiques, livré dans beaucoup des lieux où ces questions ont été débattues et décidées. Je ne prétends pas brosser un tableau complet de la situation actuelle des droits fondamentaux relatifs à la sexualité et la procréation. Puisque mon expertise est de nature pratique (plutôt que théorique), et du fait de la complexité du thème et des événements contradictoires s'y rapportant, qui se produisent presque chaque jour, je mettrai en lumière certains progrès et reculs sélectionnés subjectivement dans ce domaine, en particulier pour le droit à l'avortement. J'illustrerai comment les droits relatifs à la santé génésique ont été traités par les institutions normatives de l'ONU, telles que la Commission de la situation des femmes et la Commission de la population et du développement, ainsi que par le système des droits de l'homme des Nations Unies, comme les organes de surveillance des traités et le Conseil des droits de l'homme. Grâce à mon travail avec les institutions européennes, je donne des exemples de décisions importantes du Conseil de l'Europe et de la Cour européenne des droits de l'homme. Enfin, j'aborde l'opposition croissante à un programme progressif des droits de l'homme et à l'universalité des droits de l'homme. En dépit de succès importants, les droits génésiques demeureront longtemps controversés et contestés. Il est donc capital de tenter de trouver de nouveaux moyens d'agir et de nouveaux partenaires.

Resumen

En este artículo comparto algunas de mis experiencias y observaciones como defensora de los derechos de las mujeres en los últimos 20 años de luchas a favor de la salud y los derechos sexuales y reproductivos, realizadas en muchos lugares clave donde estos asuntos han sido debatidos y decididos. No aspiro a exponer una visión completa del estado actual de los derechos humanos con relación a la sexualidad y la reproducción. Debido al carácter práctico (y no teórico) de mi especialización, la complejidad del tema y los eventos contradictorios al respecto, que ocurren casi a diario, en esta área destacaré algunos logros y contratiempos seleccionados subjetivamente, en particular los referentes a los derechos de aborto. Daré ejemplos de la manera en que los derechos humanos relacionados con la salud sexual y reproductiva han sido tratados por los organismos de la ONU responsables de establecer políticas, como la Comisión de la Condición Jurídica y Social de la Mujer y la Comisión de Población y Desarrollo, así como los Comités de Monitoreo de Tratados y el Consejo de Derechos Humanos, los cuales forman parte del sistema de derechos humanos de la ONU. Dado mi trabajo con instituciones europeas, doy ejemplos de decisiones importantes tomadas por el Consejo de Europa y la Corte Europea de Derechos Humanos. Por último, abordo la creciente oposición a una agenda progresista de derechos humanos y la universalidad de los derechos humanos. Pese a importantes logros, los derechos sexuales y reproductivos continuarán siendo un tema polémico y refutado durante mucho tiempo más. Por lo tanto, es imperativo encontrar nuevas formas de tomar acción y forjar nuevas alianzas.

Key Words:

• sexual and reproductive health and rights
• human rights
• women's rights
• abortion
• law and policy
• United Nations
• Europe

Women's rights – looking back

The last decade of the 20th century marked major achievements regarding the recognition of women's human rights in the international arena and is sometimes called the UN Decade for Women. UN conferences made an essential breakthrough in expanding the understanding of human rights in general and women's rights specifically. Major achievements included the global recognition that women's rights are human rights; and that violence against women is a violation of human rights (UN Conference on Human Rights, Vienna, 1993). Recognition of reproductive rights and health as fundamental human rights as well as states' obligations to make these rights a reality, gender equality, and equity and women's empowerment as essential strategies of development, have been the foundations of the Programme of Action of the International Conference on Population and Development (ICPD) in Cairo in 1994. The whole concept of a rights-based approach to sexual and reproductive health, identification of 12 critical areas of concern where women's rights were being breached, including the right to health, and adoption of strategies for gender equality and women's human rights, were major accomplishments made in the Beijing Fourth World Conference on Women (FWCW) in 1995.

In the mid-1990s the spirit was rather high among transnational women's movements. Many of us hoped that new gains would soon be made, such as recognizing the right to legal abortion and sexual rights. However, the UN conferences also brought disappointing failures and missed opportunities to move the agenda further in global arenas. These included lack of political will of the international community to confirm women's right to abortion and condemn discrimination on the basis of sexual orientation and gender identity.

In the era of the Bush administration in the US, though, and especially since the 9/11 attacks and the launch of the War on Terror, which have had a detrimental impact on human rights standards globally, it has become clear that there is little chance for further achievements in the UN. In reality, women's movements have been pushed into a corner and have had to put all our efforts into holding the line, i.e. defending the gains of Cairo and Beijing rather than trying to push the boundaries for progress on unresolved issues. It has also become very visible that despite governments' agreements, the implementation of both the Cairo and Beijing action programmes has been far from satisfactory, even though significant successes have taken place in a number of countries. Additionally, increasing trends challenging the universality of human rights and initiatives undermining human rights have created new frontlines.

On the other hand, there is no doubt that numerous decisions of human rights institutions, such as UN Treaty Monitoring Bodies and the European Court of Human Rights, have contributed to strengthening sexual and reproductive health and rights standards, thanks to effective advocacy and litigation undertaken by many NGOs.

Therefore, the answer to the question of where we are on the path to sexual and reproductive health and rights is not simple. It depends a lot on where we sit.

Major successes at the national level

There have been major successes regarding the right to abortion in several countries where abortion rights advocates used international human rights obligations extensively and effectively to campaign for legal reform. The strict anti-abortion law in Nepal was liberalized in 2004¹ and now allows abortion on broad grounds. This legal change was achieved by a coalition of women activists and professionals – lawyers and health providers – who identified hundreds of women who were prosecuted and imprisoned for terminating unintended pregnancies. Good collaboration with the Government was instrumental in the reform process.

Another spectacular victory in liberalizing restrictive anti-abortion legislation took place in Colombia.² The Colombian lawyer Monica Roa, who played a key role in the process, argued in the Constitutional Court of Colombia that the country's ban on abortion, one of the world's most restrictive, violated Colombia's own commitments to international human rights treaties that ensure a woman's right to life and health. In 2006, the Court overturned the restrictive ban on abortion, allowing voluntary terminations in cases of rape, fetal malformation, or when the life or health of the woman or fetus is in danger.

Abortion laws have also been liberalized in South Africa (1996),³ Ethiopia (2005)⁴ and Mexico City (2007).⁵ In Europe, abortion was liberalized in Switzerland (2002), Portugal (2007) and Spain (1985⁶ and 2010).

At the United Nations

Sexual and reproductive health and rights are being addressed by numerous UN bodies from different perspectives. Here I will focus on policy-setting bodies, such as the Commission on the Status of Women and the Commission on Population and Development, and on treaty monitoring bodies and the Human Rights Council.

UN policy-setting bodies

Generally speaking, the UN political bodies have not made much progress in strengthening sexual and reproductive health and rights standards in the last ten years. This has become increasingly clear at UN conferences since 1998, especially sessions of the UN Commission on the Status of Women and Commission on Population and Development, who are responsible for monitoring the implementation of the Cairo (Cairo+5, 1998) and Beijing (Beijing+5, 1999) agreements. During the Cairo+5 process some important provisions regarding post-abortion care and adolescent sexual empowerment were adopted, but the political climate around sexual and reproductive health and rights had shifted. Annual resolutions adopted at these two Commissions illustrate well the terror of “agreed language”, which paralyzes any attempt to move a bit beyond and strengthen existing commitments. What has been even worse, the conservative governments negotiating resolutions in these meetings often propose language intended to weaken existing commitments, especially any reference to rights. This includes not only sexual rights but even reproductive rights, which are increasingly being lost. These issues, and especially the abortion issue, continue to disappear from debates in which they should definitely be addressed, especially in the debates about maternal health, and maternal and infant mortality.

As a result, the sexual and reproductive health and rights agenda has become gradually depoliticized, especially since 2000, when no serious efforts to push it forward have been made. Due to an extremely unfavourable political environment some NGOs have made strategic decisions not to propose initiatives going beyond Cairo, Beijing and other international agreements, on the assumption that it would be unrealistic to expect progressive change. Rather the opposite, many believed that the more offensive the approach the more of a backfire effect it could have. It is particularly disappointing when big and influential NGOs, which should be in the forefront of standard setting and have huge resources to do so, choose to avoid the more controversial aspects of sexual and reproductive health and rights and are reframing issues to make them more “politically acceptable”.

At the same time, there have been numerous efforts on the part of conservatives and religious fundamentalists – primarily of Christian origin – to challenge sexual and reproductive health and rights and weaken the content of resolutions. Just one example of the numerous battles often fought at the UN when resolutions and other consensus documents are negotiated is to do with the word “services” in the context of reproductive health. It has been increasingly questioned, removed and replaced with “care”. Services have long been contested by the opposition, as implying abortion services. Such linguistic wars, outside of the UN context, seem grotesque and meaningless, but they indicate that the political agenda around sexual and reproductive health and rights is being manipulated by human rights opponents.

Treaty monitoring bodies

General Comments

Human rights treaty monitoring bodies are committees of independent experts that monitor the implementation of international human rights treaties. They are less influenced by political controversies over sexual and reproductive health and rights and have been able to make important gains in further conceptualizing the issues involved. Of the nine human rights treaty bodies, I will focus on the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights; the Committee on Economic, Social and Cultural Rights (CESCR) which monitors implementation of the International Covenant on Economic, Social and Cultural Rights; the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women; the Committee against Torture (CAT), which monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment; and the Committee on the Rights of the Child (CRC), which monitors implementation of the Convention on the Rights of the Child.

These committees have been addressing violations of human rights, including sexual and reproductive health and rights, and assessing the observance of respective treaties by countries under review. Following these assessments, which take place in all the countries who have signed these treaties, a document called Concluding Observations is issued by the Committee, which reports on the country's status. The Concluding Observations include recommendations to governments for how to improve the implementation of the given Convention. Moreover, the mandate of the treaty monitoring bodies includes the development of General Comments related to the respective Conventions, which are reporting guidelines for governments. In these, the Committees update and expand the reporting obligations of governments, including in the areas of women's rights, gender equality, and sexual and reproductive health and rights.

The Human Rights Committee adopted a groundbreaking General Comment on the equal right of men and women to the enjoyment of all civil and political rights in 2000,⁷ in which women's reproductive health issues, including neglect leading to maternal mortality and unsafe abortions have been recognized as human rights violations. The Committee strongly confirmed that States have an obligation to prevent unwanted pregnancies and, therefore, life-threatening clandestine abortions.

The CEDAW Committee adopted a General Comment on women's health in 1999.⁸ It affirmed that access to health care, including for reproductive health, is a basic right under the CEDAW Convention and recognized the obligation of health systems to prevent, detect and treat illnesses specific to women. The Committee also addressed the issue of conscience clauses and said governments were obliged to organize alternative health services in cases where conscientious objection by health providers constituted a barrier to services only women need.

The Committee on the Rights of the Child adopted a General Comment on adolescent sexual health in 2003,⁹ which recognized that children's rights are indivisible and interrelated and adolescents should fully enjoy their right to health and development. It recognized the right of adolescents to confidential reproductive health services, including family planning and abortion.

Concluding Observations

As mentioned above, human rights committees address women's rights strongly, including SRHR in the processes of monitoring states' compliance with the conventions. They continue to issue powerful Concluding Observations on these issues. A number of committees, including CEDAW in its recommendations on Ecuador¹⁰ in 2008 and CESCR on Poland¹¹ in 2009 issued strong recommendations on abortion. In the case of Ecuador the Committee specifically obliged the Government to address the issue of high rates of maternal mortality and unsafe abortions. In the case of Poland the Committee recommended the government to improve access to legal abortions inaccessible due to conscientious objection invoked by health providers.

The Committee against Torture at its 42nd session (2009) in Geneva expressed profound concern about Nicaragua's strict ban on abortion, urging the government to repeal the 2006 law that banned therapeutic abortion and to make its legislation on abortion more flexible, especially in cases of rape or incest. The Committee described the criminalization of abortion under any circumstances in Nicaragua as a violation of human rights.¹²

Unfortunately, despite such strong criticisms, conservative governments rarely comply with the recommendations of the human rights bodies regarding reproductive rights. However, the international obligation of governments to comply is being asserted by advocates in their struggles for implementation of human rights.

On another note, even these strong recommendations of human rights bodies do not go far enough to recognize the gender discrimination dimensions inherent in denying abortion. Abortion is not treated as a women's right issue in them, nor as an issue of women's autonomy and decision-making, but as a public health issue. So the concerns expressed are about the risk of maternal mortality but not about women's self-determination and empowerment.

Filing individual complaints

The UN human rights system also provides individuals whose rights have been violated the opportunity to file a complaint to five of the nine Treaty Monitoring Bodies. This procedure has been successfully used by a 17-year-old Peruvian woman in KL v. Peru. KL was forced to continue a pregnancy in spite of anencephaly, a serious fetal anomaly incompatible with life, even though Peruvian law allows therapeutic abortion. KL was not only forced to carry the pregnancy to term but also to feed the baby until she inevitably died. The complaint was filed with the UN Human Rights Committee by Peruvian NGOs together with the Center for Reproductive Rights. It pointed to the State's failure to protect KL's right to be free from inhumane and degrading treatment. In 2005, the Committee issued its ruling, establishing that denying access to legal abortion violates women's most basic human rights. It was the first decision of any international human rights body that made a government accountable for failing to ensure access to legal abortion services.¹³

The Human Rights Council

In 2006 the United Nations created a new human rights body, the Human Rights Council (formerly the UN Commission for Human Rights). It is aimed at strengthening the promotion and protection of human rights in the world. Many human rights advocates have engaged with this institution in order to push for stronger realization of human rights.

The Human Rights Council has recently proved its commitment to expanding the understanding of women's human rights within the sphere of women's reproductive health. A number of NGOs active in its deliberations proposed a groundbreaking resolution recognizing maternal mortality as a human rights issue, which was passed in June 2009. The resolution is a valuable tool to encourage government accountability. The governments recognized in this resolution that:

“…preventable maternal mortality and morbidity is a health, development and human rights challenge that also requires the effective promotion and protection of the human rights of women and girls.” ¹⁴

Human rights bodies in Europe

The European Union and human rights

Human rights policies and standards in Europe matter for more than just Europeans. They also have an impact on the European Union's (EU) global policies at international forums, as well as on their development aid priorities. Since Poland and Malta joined the EU in 2004, as part of the EU enlargement process, there has been a chilling effect on the advancement of human rights, especially sexual and reproductive health and rights. Together with Ireland, these two countries have increasingly and assertively formed a kind of “unholy alliance” that has been breaking the former European consensus regarding rights related to sexuality and reproduction, not only in EU meetings but also UN meetings and other international forums.

This paralysis of the EU regarding sexual and reproductive health and rights is a direct result of the fact that the EU agreed that questions of moral significance, as well as those related to the protection of human life, will be regulated by EU member states at the national level. This policy has been articulated strongly by the EU institutions after the 2004 Enlargement, when Poland and Malta adopted special declarations, while ratifying the Accession Treaty, regarding moral values.

“Declaration by the Government of the Republic of Poland concerning public morality: The Government of the Republic of Poland understands that nothing in the provisions of the Treaty on European Union, of the Treaties establishing the European Communities and the provisions of treaties amending or supplementing those treaties prevents the Polish State in regulating questions of moral significance, as well as those related to the protection of human life.” ¹⁵

This has led to the situation that the EU does not have any policy regarding sexual and reproductive health and rights in Europe, even though it is continuing to make a significant investment in sexual and reproductive health and rights through development aid. However, if the trend of ignoring these issues at the European level continues and if stigma regarding them continues growing, pressure might be brought to bear on the EU by these countries to decrease its funding for programmes related to sexual and reproductive health in the developing world.

It must also be said that legislation on gender equality in Europe is very narrow in scope, and primarily addresses equality in employment. Conceptually and policy-wise, EU policy on gender equality is separated from policies on gender discrimination and indeed discrimination on any grounds. Moreover, human rights overall are not satisfactorily addressed beyond a strong rhetoric. Instead, there has been a fragmentation of what, to further confusion, are called fundamental rights in the EU,^* which has hindered effective implementation of women's human rights, especially in relation to sexuality and reproduction.

On the other hand, in 2010, the EU established a new institution, the Commissioner for Justice, Fundamental Rights and Citizenship, which needs to be looked at for opportunities to promote sexual and reproductive health and rights.

European Court of Human Rights: litigation cases

European NGOs, including women's groups, are increasingly engaging in litigation to address violations of the reproductive rights of individuals in the national and international courts. Strategic litigation is aimed at strengthening the implementation of human rights by forcing governments to improve their policies in the area of sexual and reproductive health and rights as well as at expanding the practical application of human rights in the area of reproduction and sexuality.

Alicja Tysiac (right) and her lawyer, press conference, Warsaw, 2007

The European Court of Human Rights has been providing a regional binding mechanism when a number of complaints regarding abortion have been successfully filed. Two Polish women, in cases I have personally been involved in, filed complaints and won against the Polish government because of the failure to provide access to lawful abortion services. Alicja Tysiac, now well-known, was denied a therapeutic abortion despite health indications. In 2007 the European Court of Human Rights decided that Poland had violated Tysiac's right to privacy and was directed to pay her financial compensation. Moreover, the Court recommended introducing an appeal mechanism into the Polish legal system, to enable women in a similar situation to file an appeal against a doctor's decision. In September 2009, the Polish Government established the office of Ombudsperson for Patient's Rights and an appeal commission which, although it is not perfect, may improve women's ability to exercise their reproductive rights, at least within the narrow scope of current restrictive legislation.¹⁶

A second woman, RR, was denied access to antenatal genetic testing and subsequently to a lawful abortion, despite serious fetal malformation. As a result, she had a baby with Turner's disease. In 2011, for the first time in history, the Court issued a landmark decision: that denial of access to antenatal testing and lawful abortion is a human rights violation and constitutes inhumane and degrading treatment. The Court also ruled that it was a violation of the woman's private life. RR received financial compensation of €45.000.¹⁷

In 2010, the European Court of Human Rights handed down another ruling regarding abortion, in the case ABC v. Ireland.¹⁸ Currently, Ireland only allows abortion when a woman's life is in danger. Three women, who used the pseudonyms A, B and C, who had had to travel abroad for an abortion, filed a case in 2005 with the support of the Irish FPA. The IFPA described the case as follows:

“The first applicant had children in the care of the state as a result of personal problems and considered a further child would jeopardise the successful reunification of her existing family. The second applicant was not prepared to become a single parent. The third applicant was in remission from cancer when she became pregnant. Unaware that she was pregnant she underwent a series of check-ups contraindicated during pregnancy. She claimed she could not obtain clear advice about the risks to her health and life and to the fetus if she continued to term. The judges ruled unanimously that Ireland's failure to implement the existing constitutional right to a lawful abortion in Ireland when a woman's life is at risk violates Article 8 of the European Convention on Human Rights. The Court unanimously found that Ireland's abortion law violates women's human rights and that Ireland must make life-saving abortion services available.” (see <www.ifpa.ie/eng/Hot-Topics/Abortion/ABC-v-Ireland>)

In June 2011, the Irish Government outlined plans on the implementation of the judgment, in a report to the Council of Europe. They said they would establish an expert group, with a view to making recommendations to Government on how this matter should be properly addressed.

These examples show that litigation grounded in an accurate reading of existing law has significant potential for strengthening the implementation of sexual and reproductive health and rights. There was a direct impact on the women's situation, as they at least received financial compensation. What is more important, though, is that the European Court of Human Rights has directed the states concerned to introduce measures that may help to prevent similar human rights violations in the future. What is even more important, the Court will not close a case before being certain that the legal reforms concerned are effective. For example, although the Government introduced an appeal mechanism, the Tysiac case has not yet been closed. Instead, its application is being monitored regularly.¹⁹

Two other decisions in cases regarding abortion in Poland are expected soon from the Court. One was filed by the mother of a young woman who died as a result of being denied access to a therapeutic abortion (Z. v. Poland). The other case was about a teenage girl who got pregnant as a result of rape. The girl and her mother filed the case, as numerous rights of the girl and her mother were violated in their efforts to access a lawful abortion for the girl (S.& T. v. Poland).

Council of Europe resolutions on reproductive rights

Until recently moderate optimism regarding further development of women's human rights standards could be expected at the Council of Europe, the regional body comprising the majority of European countries, including former Soviet bloc countries. The Council has issued a number of progressive resolutions regarding reproductive rights that go beyond the Cairo and Beijing commitments, such as a 2008 resolution on safe and legal abortion in Europe, in which women's right to self-determination has been so strongly recognized:

“The (Parliamentary) Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way…

7. The Assembly invites the member states of the Council of Europe to: 7.1. decriminalize abortion within reasonable gestational limits, if they have not already done so; 7.2. guarantee women's effective exercise of their right of access to a safe and legal abortion; 7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion.” ²⁰

In October 2010, on the other hand, the Council of Europe adopted a resolution on the right to conscientious objection.²¹ The rationale behind the resolution at draft stage was to regulate the use of conscientious objection by reproductive health care providers so that it would not limit women's access to lawful abortion services. However, the resolution was not passed as proposed; it was diluted by a number of anti-abortion amendments. As a result, instead of offering a set of comprehensive guidelines for governments on protecting woman's reproductive health and autonomy, the resolution enables both doctors and institutions to refuse emergency care without being held liable.

These somewhat contradictory resolutions, adopted in such a short space of time show that political bodies are often not predictable or consistent because their membership and composition changes. This shift also reflects the unfavourable climate currently present in the Council of Europe, which had for a long time seemed to be immune to fundamentalist trends. The resolutions of the Council are not binding; however, they certainly have moral significance and they may lead to legal initiatives at the national level. For example, arising from this support for conscientious objection, Polish Catholic pharmacists are currently proposing a law giving them the right not to sell contraceptives.

Challenges to the universality of human rights

Attempts to challenge the universality of the human rights framework, which have been observed during the proceedings at recent sessions of the Human Rights Council and the UN General Assembly, are broad-based and have not yet had a direct impact on sexual and reproductive health and rights. If they continue, however, they could eventually threaten sexual and reproductive rights, as well as human rights in general.

The principle of universality of human rights – that is, that human rights pertain to all individuals and nations – was agreed by the General Assembly of the United Nations on 10 December 1948 – the day the Universal Declaration of Human Rights was adopted. While there has been an overwhelming consensus in the international community regarding the principle of universality, it has in fact been questioned by a number of governments and scholars ever since the adoption of the Universal Declaration, primarily from a conservative standpoint. The voices claiming that any concept of human rights needs to be sensitive to cultural and religious specificities – rejecting the universality of human rights as a Western concept and a product of the European Enlightenment – have recently become stronger and gained significant successes. Despite the strong opposition and advocacy of many NGOs supporting human rights, the UN General Assembly and the Human Rights Council adopted two highly controversial resolutions. The one, “Combating defamation of religions”,²² introduced the concept that religions need special institutional protection within the human rights discourse.

Previously, international human rights law had been used primarily to protect individuals to exercise freedom of religion or beliefs, not to protect religions or religious institutions. This resolution, while recognizing the right of everyone to freedom of expression on the one hand, imposed limits on its exercise, on the other hand, which creates an irresolvable contradiction. It stated:

“10. Emphasizes that, as stipulated in international human rights law, everyone has the right to hold opinions without interference, and has the right to freedom of expression, the exercise of which carries with it special duties and responsibilities and may therefore be subject to limitations as are provided for by law and are necessary for respect of the rights or reputations of others, protection of national security or of public order, public health or morals.” ²⁰

The other, “Promoting human rights and fundamental freedoms through better understanding of traditional values of humankind”²³ legitimized the assumption that all traditional values are always positive by nature. Yet long-standing global experience shows that many traditional practices are harmful to girls and women, such as female genital mutilation, son preference, early marriage and dowry, and virginity testing. Many UN policy agreements (e.g. the Beijing Platform for Action) and Treaty Monitoring Bodies have addressed these issues, and on numerous occasions have recognized that harmful traditional practices, which are in fact violations of human rights, cannot be justified by culture and tradition.

These resolutions and subsequent initiatives that may arise from them, as has occurred with the Council of Europe resolution on conscientious objection, may have an impact on the perception and realization of human rights for all. But they might particularly affect women's rights, as assertions of culture and protection of religion can serve as vehicles to conserve a patriarchal model of inequality and discrimination against women in societies where harmful traditional practices continue to violate women's rights.

Conclusions

My understanding and experience of human rights developments related to sexual and reproductive health during the last two decades leads me to conclude that sexual and reproductive rights, despite significant successes internationally and in some cases at the national level, will long remain controversial and contested. A backlash has clearly been visible since the turn of the century; it has inhibited further progress in developing international standards and paralyzed successful implementation of recognized agreements in many parts of the world. At the same time, this backlash, which is so evident in so many forums, is in a way also a reaction to progress and a sign of many successes.

Human rights advocates must recognize the inherent and unavoidable difficulties of engaging in political processes and face the reality that the struggle for full recognition of sexual and reproductive rights, especially the right to abortion, will never be a linear process or lead to a final “victory”. Hence, it is crucial to try to find new ways to engage and new partners in our endeavours. The international community of sexual and reproductive health and rights advocates is realising that human rights work, and their own work as well, would be strengthened by being part of a larger movement for social justice and economic rights as these relate to sexual and reproductive health and rights.

Acknowledgements

I would like to remember Rhonda Copelon with deep gratitude for all her insightful comments and suggestions, which moved this paper in new directions. This is a revised and updated version of a paper presented at the conference Repoliticizing Sexual and Reproductive Health and Rights, Langkawi, Malaysia, 3–6 August 2010. This version incorporates a number of comments made by Christina Zampas, then with the Center for Reproductive Rights, and Hossam Bahgat of the Egyptian Initiative for Personal Rights, in their responses to the paper.

Notes

* In EU documents, the term “fundamental rights” is often used, which includes human rights, equality and anti-discrimination issues, e.g. the 2007 Charter of Fundamental Rights of the European Union (2007/C 303/01) lays out rights that go beyond those covered by existing human rights conventions. See <http://eur-lex.europa.eu/en/treaties/dat/32007X1214/htm/C2007303EN.01000101.htm>.