How gains for SRHR in the UN have remained possible in a changing political climate

Abstract

As right-wing populist movements make electoral gains around the world, one might expect that resultant policy and legislative reversals against sexual and reproductive health and rights (SRHR) would be mirrored by a similar backlash in United Nations (UN) human rights negotiations. Yet the past five years have seen unprecedented advances for SRHR within the UN Human Rights Council (HRC), treaty bodies, and special procedures. In this article, we provide an overview of SRHR gains and setbacks within the HRC and analyse their broader significance, particularly as socially conservative nation states and non-governmental organisations seek to challenge them. We analyse how states have advanced SRHR in the HRC and examine efforts that states which oppose SRHR have undertaken to limit these advances. In an increasingly hostile political climate, the inter-related legal, technical, and political mechanisms through which human rights are advanced within the UN has helped to mitigate the effects of rapid political reversals. Additionally, the HRC's emphasis on previously agreed language helps dampen significant changes in resolutions on SRHR.

Résumé

Alors que les mouvements populistes de droite remportent des succès électoraux de par le monde, on pourrait s’attendre à ce que les renversements politiques et législatifs en résultant contre la santé et les droits sexuels et reproductifs se traduisent par un contrecoup similaire dans les négociations sur les droits de l’homme aux Nations Unies. Pourtant, les cinq dernières années ont vu des progrès sans précédent pour la santé et les droits sexuels et reproductifs dans le cadre du Conseil des droits de l’homme, des organes de suivi des traités et des procédures spéciales. Dans cet article, nous donnons un aperçu des progrès et des reculs de la santé et des droits sexuels et reproductifs au sein du Conseil et analysons leur signification plus large, en particulier alors que des organisations non gouvernementales (ONG) et des États nations socialement conservateurs cherchent à les remettre en cause. Nous analysons comment les États ont fait progresser ces questions au sein du Conseil et examinons les mesures que les États qui s’opposent à la santé et aux droits sexuels et reproductifs ont prises pour limiter ces avancées. Dans un climat politique de plus en plus hostile, les mécanismes juridiques, techniques et politiques interdépendants par lesquels les droits de l’homme progressent aux Nations Unies ont aidé à atténuer les conséquences des virages politiques rapides. De plus, l’accent placé par le Conseil des droits de l’homme sur une terminologie convenue précédemment contribue à limiter les changements substantiels dans les résolutions sur la santé et les droits sexuels et reproductifs.

Resumen

A medida que los movimientos populistas derechistas continúan ganando elecciones a nivel mundial, cabría esperar que los retrocesos resultantes de políticas y legislación contra la salud y los derechos sexuales y reproductivos (SDSR) se reflejen en retrocesos similares en negociaciones de las Naciones Unidas (ONU) en materia de derechos humanos. Sin embargo, los últimos cinco años han visto adelantos sin precedentes para SDSR dentro del Consejo de Derechos Humanos (HRC), órganos de tratados y procedimientos especiales. En este artículo, ofrecemos una visión general de los logros y retrocesos relacionados con SDSR dentro del HRC y analizamos su significado más amplio, en particular a medida que los Estados socialmente conservadores y organizaciones no gubernamentales (ONG) buscan cuestionarlos. Analizamos cómo los Estados han promovido SDSR en el HRC y examinamos los esfuerzos de los Estados opuestos a SDSR por limitar esos adelantos. En un clima político cada vez más hostil, los mecanismos legislativos, técnicos y políticos interrelacionados por medio de los cuales los derechos humanos son promovidos en la ONU han ayudado a mitigar los efectos de los rápidos reveses políticos. Además, el énfasis del HRC en lenguaje acordado anteriormente ayuda a amortiguar cambios significativos en las resoluciones sobre SDSR.

Keywords:

• sexual and reproductive health and rights
• bodily autonomy
• United Nations
• Human Rights Council
• backlash
• diplomacy
• transnational advocacy
• treaty bodies
• NGOs

Introduction

As countries like Brazil, Poland, the Philippines, and the United States (US) shift towards strands of populism that oppose various aspects of sexual and reproductive health and rights (SRHR), one might expect multilateral bodies such as the United Nations (UN) Human Rights Council (HRC) to experience inertia or even reversals in relation to SRHR. However, the HRC has generated a number of important normative advances in conceptualising and affirming SRHR over the past five years. This review seeks to assess these counter-intuitive developments by addressing the following questions:

1. How have nation states advanced and/or contested SRHR within HRC resolutions since 2014?

2. What is the potential impact of normative advances related to SRHR within the HRC?

3. What factors have contributed to making these gains possible?

To do so, this article first provides a general overview of the advancement of SRHR in UN negotiations since the 1990s. Gruskin et al's¹ proposed “streams” model is used as a framework for examining SRHR advances across technical, legal, and political streams in the UN. Noteworthy SRHR advances and setbacks within the HRC from June 2014 to June 2019 are then considered. We assess the potential importance of SRHR advances within the HRC and examine how and whether advances in technical and legal UN bodies have enabled further advances within the HRC.

SRHR in the context of UN negotiations

Within the UN, SRHR first became framed as a set of human rights issues during a series of world conferences and intergovernmental negotiations in the mid-1990s. The World Conference on Human Rights in Vienna (1993) marked one such shift as women's organisations successfully sought to have concerns such as violence against women recognised as human rights violations.² The 1994 International Conference on Population and Development (ICPD) in Cairo broke new ground in reframing family planning from population control to a matter of women's agency and reproductive rights. This reformulation challenged the prevalent population policies and programming at that time, which had often instrumentalised women, rather than affirming women as rights holders, including in relation to sexual and reproductive health (SRH).³ In 1995, the Declaration and Platform for Action from the Beijing Fourth World Conference on Women built further on the agreed language from ICPD in relation to SRH. In particular, paragraph 96's affirmation of “women's right to control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination, and violence”,⁴ marked a major normative advance in legitimising SRHR.

However, whereas reproductive health, reproductive rights, and (partly) sexual health were defined within the ICPD's Programme of Action and the Beijing Declaration and Platform for Action, the meaning of “sexual rights” has never been explicitly defined or incorporated into an international, consensus-based, negotiated text within the UN.⁵ Ambiguity continues to this day regarding the differences and/or the interchangeability between the terms sexual rights, reproductive rights, sexual and reproductive rights, and sexual and reproductive health and rights.¹ For the purposes of this paper, we reference the definitions of sexual rights and reproductive rights developed in the Guttmacher-Lancet Commission in 2018.⁶ However, consistent with the Sexual Rights Initiative's (SRI) work within the HRC and its engagement with the Guttmacher-Lancet Commission, we place a greater emphasis on bodily autonomy as a central lens through which to conceptualise SRHR, since the notion of bodily autonomy has underpinned understandings of SRHR among feminists, UN officials, and state representatives since ICPD.^7,8 Moreover, as will be discussed in greater detail below, bodily autonomy has been included with greater frequency as a core tenet of SRHR within HRC negotiations.

Theorising SRHR advances within the UN

Gruskin et al¹ describe three inter-related streams in the international system through which SRHR have been promoted/protected: the political (e.g. governmental processes at an international, regional, or national level), the technical (e.g. approaches and materials developed by specialised international agencies like the WHO or the UNFPA), and the legal (defined by Gruskin et al¹ as “the formal parts of the human rights system, including the OHCHR, the treaty monitoring bodies, and other formal mechanisms such as Special Rapporteurs, as well as international, regional, and national court decisions”). Whereas Gruskin et al refer to the HRC as quasi-political, with some relevance to the legal stream, we categorise HRC proceedings as entirely political, given that the HRC is a state-constituted entity. Indeed, international relations and legal scholars generally characterise the HRC as a political entity and have been critical of efforts to characterise it as legal in nature.^9,10 We also categorise the OHCHR and special procedures contributions as having been primarily technical rather than legal. According to Gruskin et al,¹ these streams typically demonstrate a three-way exchange of influence as each stream impacts the others while also being influenced by the other streams. We suggest that Gruskin et al's¹ model may help illustrate how advances in the political stream (e.g. in the HRC) have been feasible in spite of an unfavourable political climate, since these gains have been influenced by the legal and technical streams, which have favoured advances in SRHR and are in many cases less vulnerable to backlash. We apply the model to our analysis of SRHR advances in the HRC in order to better examine the mechanisms and conditions through which advances in these different streams may influence ongoing gains within the HRC.

Overview of the UN Human Rights Council

The HRC was created in 2006 with the intention of developing a responsive human rights organ to replace an earlier intergovernmental body known as the UN Commission on Human Rights, which had been criticised for its politicisation and inattention to a number of salient human rights concerns.¹¹ Unlike the UN General Assembly (GA), which is based in New York and is constituted through universal membership, the Geneva-based HRC is constituted by 47 nation states elected for three-year terms by the GA.¹²

During the HRC's three annual sessions, states negotiate and adopt resolutions on a broad array of thematic and country topics.¹³ Resolutions are adopted by consensus or – for more divisive issues – by a vote among the 47 Council members. Regardless of how a resolution is adopted, states can seek to alter a tabled resolution's content in advance of its adoption by tabling “hostile amendments” (omissions, revisions, or additions to the tabled resolution's text, which are subject to a vote). If enough states vote in support of a hostile amendment, the text it contains will then replace the original text tabled by the resolution's sponsors.¹⁴ In light of these risks, states seek to attract broad support and to minimise opposition within a resolution. To help shore up such support, states leading a resolution will sometimes form a core group with other supportive states. This core group will assist with drafting the text, presenting a unified front, providing support in negotiations, and canvassing support from other states.¹⁴

By running a resolution on an annual, biennial, or triennial basis, states seek to expand the normative framework on the topic of the resolution in question (for example, by introducing new language originating from other resolutions, treaty bodies, UN experts, or from civil society). In some cases, a resolution's core group will also introduce a different focus within each iteration of the resolution as a means to expand the scope, depth, and clarity regarding how a particular human rights issue applies to different contexts or to different groups of rights holders.¹⁴

Methods

Our research focused on SRHR gains within the HRC from June 2014 to June 2019. A longer timeframe would have limited the extent to which an in-depth analysis would be feasible. A shift towards governments opposed to SRHR appears to have taken place since 2014, and the second author has previously written about noteworthy gains in the HRC prior to 2014.¹⁵

Much of the analysis and context in this article has been informed by the second author's experience as a civil society leader involved in the Council over the past seven years and from the first author's experience in working with non-governmental organisations (NGOs) that supported SRHR and sexual orientation and gender identity (SOGI) in the Council from February–August 2017 and in November and June of 2019. This positioning has facilitated in-depth insights, nuanced contextual understanding of the HRC and its negotiations, and trust-based relationships with a number of diplomats and UN officials. However, this positioning generates limitations, such as the possibility that the analysis would be over-informed by insider biases or blind spots. Further, in light of the limited relationships that both authors have with states and civil society organisations that oppose SRHR within the Council, perspectives from these entities have not substantively informed the research. To counterbalance our own biases, we only include information in this article that we could corroborate through reference to specific observations, personal communications and other sources, including an analysis of primary documents, grey literature from NGOs, media reporting, and (when possible) academic research.

We also undertook a review of the major outcomes of HRC sessions in relation to SRHR. The first author compiled an assessment of major gains and setbacks related to SRHR within the HRC by reviewing the SRI's public reporting on SRHR normative advances/concerns during and after each HRC session from June 2014 to June 2019. The first author then corroborated these analyses by examining the resolutions in question and their voting records, relying primarily on the Universal Rights Group's UN Human Rights Resolution Portal.

Next, the authors focused on resolutions in which SRHR normative gains or setbacks reoccurred across multiple iterations of the resolution. This resulted in a focus on four resolutions where strong SRHR language is featured: child, early, and forced marriage (CEFM); discrimination against women and girls (DAWG); preventable maternal mortality and morbidity (PMMM); and violence against women (VAW); plus one resolution in which SRHR's inclusion has been inconsistent and contested (on the rights of the child); and one resolution that is perceived as opposing aspects of SRHR (on the protection of the family). This selection meant that some resolutions that were one-off, or deemed more limited in scope, were not featured substantively in our analysis; however, they do warrant being referenced in light of their respective advances related to SRHR. In particular, the biannual resolution on “the question of the death penalty” in September 2017 and 2019 condemned the imposition of the death penalty in cases of adultery and consensual same-sex relations, among other forms of conduct.^16,17 In so doing, the 2017 resolution became the first UN resolution in Geneva or New York to reference adultery.¹⁸ Further, the HRC resolution on DAWG in sport, which South Africa introduced in the March 2019 HRC session, focused on the impacts of racial discrimination on women and girls, including when competing in sport, and became the first HRC resolution to recognise “rights to bodily integrity and autonomy”,¹⁹ two core components of SRHR. We also decided to omit an analysis on the resolutions on SOGI that took place within the HRC during the timeframe of our research (in 2014, 2016, and 2019), since considerable research has already examined these developments.^20–22

Findings and discussion

Opposition strategies to SRHR within the HRC

States which oppose SRHR deploy certain strategies within the HRC. One such strategy could be termed “blanket opposition”, in which several themes or issues related to SRHR are challenged concurrently. The most visible and recurrent example of such opposition within the HRC has been the Protection of the Family resolution, which ran during the June HRC sessions from 2014 to 2017. These resolutions omitted references to the ICPD-agreed language on “various forms of the family”. References to human rights violations that may occur within the family unit (e.g. intimate partner violence, violence and discrimination against older persons, persons with disabilities, children, and women) were also either explicitly omitted or downplayed within these resolutions.

These resolutions present a worrying instance of backlash in which inclusive, previously agreed language is omitted while values that are in opposition to SRHR are advanced. Such concerns have been raised by a coalition of civil society organisations²³ and by four UN Special Procedures.²⁴ In 2015, the Protection of the Family resolution's core group blocked an amendment that would have rendered the text more inclusive towards diverse families by putting forward an obstructive procedural tactic known as a “No Action Motion”; this motion narrowly passed by a single vote.²⁵ Some states and civil society believe that this resolution did not run during the June 2018 or 2019 session on account of concerns that the resolution would not attract enough support to pass.* While this may signal the limited success of this strategy in the short term, ongoing monitoring of such tactics may well be warranted.

A more common strategy employed is to block or weaken language that affirms SRHR within HRC resolutions. Consider, for example, the resolution on the rights of the child, which is run annually by a rotating EU member state and by Uruguay (on behalf of the Group of Latin American and Caribbean countries [GRULAC]). The 2015 rights of the child resolution called on states to ensure children's access to sexual and reproductive health care services and to “comprehensive evidence-based education on human sexuality in a manner consistent with the evolving capacities of the child”, both of which are significant in light of many states’ opposition to the affirmation of children's SRHR.^26,27 Yet, in subsequent years, some states, even from within the EU and GRULAC, expressed reservations with this language during informal negotiations;^† subsequent iterations of this resolution have failed to reincorporate SRHR references, in spite of joint statements and critiques of these omissions by SRHR organisations in 2017 and 2018.^28,29 The 2019 iteration of this resolution, which focused on children with disabilities, improved in comparison to 2017 and 2018, referencing children's sexual and reproductive health and calling on states to prevent forced sterilisation, forced abortion, and forced contraception;³⁰ yet it falls short of the robust language put forward in 2015.

Another tactic used is the introduction of new thematic resolutions with obvious connections to SRHR, while “sanitising” these resolutions of SRHR references. For example, comprehensive sexuality education (CSE) and adolescents’ SRHR are especially contested. Several states hostile to SRHR have recently introduced resolutions focused on youth and girls’ education. A new resolution on youth and human rights was introduced in 2016 by a core group largely opposed to comprehensive formulations of SRHR, with El Salvador^‡ as the lead. Similarly, the United Arab Emirates introduced a new resolution on girls’ education in 2016 with no reference to CSE, in spite of some member states’ proposals to have such language included. Later, during informal negotiations on the child, early and forced marriage (CEFM) resolution in 2017, Russia argued that CSE should not be acknowledged or referenced in the CEFM resolution, since if this language were to exist anywhere, it should be in the resolution on girls’ education.^§ The watered-down language related to sexuality education in the final version of the 2017 CEFM resolution suggests that such a tactic may have been somewhat effective and warrants further analysis. To date, the exact term “comprehensive sexuality education” has not yet appeared in any resolution directly focused on children.

Brazil and the US and their impacts on the HRC

While countries like Egypt, Russia, and Saudi Arabia tend to regularly oppose references to SRHR, recent shifts in the foreign and domestic policies of powerful countries like Brazil and the US have layered on complexity and risks of backsliding on SRHR normative advances in the UN. In the case of the US, the Trump administration withdrew from the HRC in June 2018, citing anti-Israel bias and the admission of states with poor human rights records as its primary reasons for withdrawal.³¹ Though this decision has not impeded the US in its efforts to act to reduce SRHR within the GA,³² it has prevented this major power from exerting its influence on negotiations within the HRC. Iceland replaced the US as an HRC member. It is possible that some advances on SRHR within the HRC discussed below would not have been feasible had the US remained a member.

Brazil is a current member of the HRC, and the June 2019 session marked a clear shift in Brazil's involvement in the Council. Brazilian diplomats actively opposed references to gender, reproductive health and/or rights, and CSE, despite Brazil remaining in the core group for the resolution on renewing the mandate of the Independent Expert on sexual orientation and gender identity (emphasis added).³³ However this shift in Brazil's position did not translate into significant concessions or changes to the resolutions in the June 2019 session. It is possible that destructive impacts of Brazil's change in administration will be more pronounced in future sessions of the HRC, since instructions to diplomats regarding SRHR were only received halfway through the June 2019 HRC session,³³ reducing Brazil's ability to proactively engage with resolution drafters. Furthermore, given that Brazil has been a core group member of resolutions with relevance to SRHR (for example, on HIV and human rights, the right to privacy, the right to the highest attainable standard of health, access to medicines, and gender mainstreaming in the 2030 agenda, amongst others), it may well be the case that Brazil could weaken such resolutions’ integration of SRHR language in future HRC sessions.

SRHR advances in HRC resolutions

Notwithstanding opponents to SRHR's presence and strategy within the HRC, the Council has nevertheless experienced a significant increase in affirmations of SRHR across a number of resolutions. The Canada-led HRC resolution on VAW presents an illustrative example of progress in affirming SRHR in spite of opposition. During the June 2014 HRC session, the initial draft VAW resolution put forward by a then-Conservative government in Canada did not include any references to SRHR. Following persistent efforts by civil society and by some of the resolution's traditional co-sponsors (see below), Canada included two cursory references to SRHR. However, these fell far short of the more comprehensive SRHR language that had been adopted by consensus during the March 2014 UN Commission on the Status of Women (CSW). In light of the paucity and weakness of the SRHR language that had been included in this resolution, 16 states (France, Germany, Austria, Belgium, Croatia, Czech Republic, Denmark, Estonia, Finland, Iceland, Ireland, Netherlands, Norway, Slovakia, Switzerland, and Uruguay) withdrew their support as co-sponsors.

Perhaps in response to this rebuke from traditional co-sponsors of the resolution, the June 2015 VAW resolution featured strong SRHR language. In particular, this resolution became the first-ever UN resolution to incorporate the terms “comprehensive sexuality education” (CSE) and “intimate partner violence” (IPV). Whereas the 2015 rights of the child resolution included a reference to children's right to “sexuality education” with a range of caveats, CSE is defined in the resolution with reference to the inclusive 2009 UNESCO definition as “an age-appropriate, culturally relevant approach to teach about sex and relationships by providing scientifically accurate, realistic, and non-judgmental information”.³⁴ The affirmation of CSE is noteworthy since sexuality education has been among the most controversial facets of SRHR.²⁶ While sexuality education is referenced in the ICPD Programme of Action and (slightly more so) in the Beijing Platform for Action,³⁵ these documents do not offer definitions of, or standards for, sexuality education. The integration of CSE into the 2015 VAW resolution could therefore be interpreted as a further substantiation of states’ understanding and support for this term.

The reference to IPV in the 2015 VAW resolution builds on references to “gender-based violence in the family” which had been included in 2008, 2009, and from 2011 to 2014. Unlike these past resolutions’ more cursory references to violence, however, this resolution provided an in-depth examination of IPV. Defined by the WHO as “any behavior within an intimate relationship that causes physical, psychological or sexual harm to those in the relationship”, the reference to IPV is also significant in helping to specify and denounce one of the most common categories of violence experienced by women.³⁶ Counter-intuitively, these normative gains within the 2015 VAW resolution, which was co-sponsored by 89 states, were advanced under Canada's previous Conservative government – the same government that had omitted substantive SRHR references in earlier VAW resolutions in the HRC.

Important normative gains in advancing girls’ access to SRHR were also forged during the 2015 June HRC session in the CEFM resolution, a biennial resolution co-led by the Netherlands and Sierra Leone, on behalf of a cross-regional core group (Argentina, Canada, Ethiopia, Honduras, Italy, Montenegro, the Maldives, the Netherlands, Poland, Sierra Leone, Switzerland, United Kingdom, Uruguay, Zambia). This 2015 resolution became the first UN resolution to affirm girls’ right “to control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health”³⁷ – rights that the Beijing Platform for Action had previously affirmed for women. This hard-fought language is significant since girls’ right to decide on matters related to their sexuality has been another contested component of SRHR negotiations.^26,27

More recently, during the 38th HRC Session in June and July of 2018, Mexico and Colombia heralded in the most advanced language on abortion in a UN negotiation since the Beijing Platform for Action through their annual resolution on DAWG. In a paragraph relating to states’ commitments to upholding SRHR, this resolution calls for “the enforcement of policies, good practices, and legal frameworks that respect … safe abortion in accordance with international human rights law and where not against national law”.³⁸ Whereas the Beijing Platform for Action and the Cairo Programme of Action only call on countries to ensure access to safe abortion when abortion is not “against the law”, this resolution specifies national law – a seemingly minor nuance that can nevertheless open entries for advocacy in countries where, for example, sub-national laws restrict abortion access. In calling for “the development and enforcement of policies, good practices, and legal frameworks that respect the right to bodily autonomy”,³⁸ the 2018 DAWG resolution also became the first UN resolution to reference a “right to bodily autonomy”. This concept supports a range of rights encompassed within SRHR, and opposition to this concept has been one of the major cruxes to states’ opposition to the term “sexual rights” over the past three decades.⁶

Why SRHR gains in the HRC matter

Resolutions in the HRC are not binding or enforceable – the only enforceable resolutions within the UN system come from the Security Council. SRHR advances in HRC resolutions are nevertheless significant and can be translated into concrete outputs in advancing SRHR through a range of different channels.

Resolutions and outcomes in other state negotiations

Given that the Council is the foremost state-constituted global body focused on human rights, gains in advancing SRHR here can legitimise and reinforce SRH concerns as rights-based issues in other state-constituted forums (as well as in other HRC resolutions). For example, following the 2015 HRC resolution on CEFM, which affirmed girls’ “right to decide on matters related to their sexuality, including sexual and reproductive health”,³⁷ the lead sponsors of the CEFM resolution in the GA, Canada and Zambia, sought to introduce this language within their resolution in New York (Canadian diplomat, personal communication, 28 November 2018). Ultimately, the negotiated text that resulted was weaker than the HRC resolution and only affirmed the rights of girls who have been subjected to CEFM to control their own sexuality.³⁹ Weaker though it may be, even this reference may not have been possible at the GA had it not been for what a Canadian diplomat described as “the dialogue between GA Third Committee resolutions and HRC resolutions, where one has built on the other and vice versa” (personal communication, in-person interview, 28 November 2018). Having language from the HRC influence other bodies like the GA is significant, given that the GA is constituted by all UN member states, and negotiated outcomes are therefore endorsed by a broader cross-section of states.

Domestic advocacy and implementation

HRC resolutions can be seen as a normative yardstick signalling states’ positions on particular human rights issues. Thus resolutions with strong SRHR language provide domestic advocacy opportunities and can spur momentum for change in countries that have co-sponsored or voted in favour of a resolution (or even, to a lesser extent, in countries that have not voted against a consensus-based resolution). For example, the Ugandan Ministry of Health has highlighted how the technical guidelines on SRHR that resulted from the 2011 preventable maternal mortality and morbidity (PMMM) resolution (see “Technical stream” section below) have strengthened duty bearers’ capacity in providing SRHR services and rights holders’ capacity to monitor and advocate in support of SRHR.⁴⁰ These technical guidelines have also led to improved accountability mechanisms, including through the Ugandan Human Rights Commission and through civil society and media's raising awareness of ongoing gaps. This highlights how HRC resolutions can concretely have an impact at the national level.

HRC resolutions that affirm SRHR can also call for further reporting and/or monitoring of rights violations. In cases where a resolution creates or renews a special procedure or mandates the OHCHR to investigate a particular issue (see “Technical stream” section below), resultant country visits and/or reports can help create dialogue, momentum, and advocacy in support of SRHR issues that otherwise might not have received the same degree of attention and scrutiny.⁴¹

UN agencies’ policies and programming

HRC resolutions can also help to spur on more progressive programming in UN agencies. In an interview with the first author, one UN employee commented:

“consensus language is what sets our work plans. From headquarters to regional to national level. And the way that those get negotiated also draws from agreed language in other forums. And so I do think that it [resolutions] can have a direct impact on implementation in technical agencies. The ability to move the needle in terms of the work of certain UN agencies at a country level is certainly impacted by these intergovernmental discussions.” (Personal communication, in-person interview, November 16, 2018)

For example, the 2018 PMMM resolution's call for the Minimum Initial Service Packages (MISP) for Reproductive Health to be made readily available at the onset of humanitarian emergencies can help further legitimise agencies like the UNFPA and/or the UNHCR in making these services available. The affirmation of the MISP within an HRC resolution adopted by consensus is particularly significant, given that the MISP had been revised in 2018 to explicitly incorporate safe abortion care.⁴²

What has contributed to making these gains possible

Political stream: self-reinforcing feedback dynamics within the HRC

The nature of political negotiations within the UN appears to partially shelter bodies like the HRC from some of the major regressions that anti-SRHR actors may seek. The language in HRC resolutions draws extensively from previously agreed language from the HRC and from other relevant UN bodies like the UN CSW or the UN GA.** Such previously agreed language is often referred to as the “lowest common denominator”.⁴³ While states can and do sometimes challenge previously agreed language,⁴⁴ it is not common for previously agreed language to be dramatically weakened in subsequent resolutions or negotiations. As the 2014 VAW resolution led by Canada illustrated, even the omission of agreed language can be enough to provoke concern and undermine a state's proposed resolution.

Gains in advancing SRHR can also produce self-reinforcing feedback loops through which SRHR is legitimised/reinforced across other HRC resolutions. For example, the 2018 resolution on PMMM and human rights in humanitarian settings, led by Burkina Faso, Colombia, New Zealand, and Estonia, demonstrates how SRHR language gains from one resolution can migrate into other relevant thematic resolutions. The language on ensuring access to safe abortion and affirming bodily autonomy from the DAWG resolution in 2018 was repeated in the subsequent 2018 PMMM resolution, as was language on CSE, which originated from the VAW resolution from 2015 onwards. This repetition of SRHR-affirming language across various Council resolutions could be interpreted as significant insofar as it signals states’ continued support for these issues, while also signalling how SRHR issues have import across a range of thematic areas.

Hence, states’ preference to retain previously agreed language and to “cross-pollinate” SRHR advances from one resolution or UN body to another both appear conducive to creating positive feedback loops, which contribute to advances and/or, at a minimum, the retention of previous SRHR language in spite of governments that are less favourable to consolidating SRHR.

Technical stream: international agencies’ SRHR advances and their relation to the HRC

UN agencies’ technical expertise can also have bearing on how resolutions are legitimised and advanced. For example, the substance and impact of the PMMM resolution have been reiteratively strengthened through its interconnections with the technical stream. The first PMMM resolution in the HRC (in 2009) justified the importance of addressing PMMM based on WHO figures of the “unacceptably high global rate of preventable maternal mortality and morbidity, noting … that … over 1,500 women and girls die every day”.⁴⁵ In 2011, this resolution mandated the OHCHR to collaborate with relevant UN entities to develop technical guidance on “the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality”.⁴⁶ In the following year, the PMMM resolution took note of a number of the findings outlined in the OHCHR's technical guidance and “called upon all relevant actors … to disseminate the technical guidance and apply it”.⁴⁷ Following this resolution, the OHCHR began to develop more work related to PMMM, including follow-up reports which have highlighted states’ implementation of the technical guidance, as well as thematic-focused reports. Some of these reports, in turn, have been extensively cited in the 2018 PMMM resolution.⁴⁸

The evolution of the PMMM resolution illustrates a mutually constitutive process whereby agencies’ technical guidance contributes to the legitimacy of HRC resolutions; concurrently, advances in SRHR content in this resolution contributed to the legitimacy of agencies’ technical work and programming on SRHR. A similar mutually reinforcing dynamic may be at play in Canada's annual VAW resolution. During the June 2015 session in which this resolution first included a reference to CSE, Canada included a reference to a UNESCO technical definition of CSE within the resolution as a means to legitimise and clarify this term. This may well have contributed to how and why this resolution's content was accepted by HRC member states. Since then, CSE has now been referenced in nine different resolutions: VAW (2015, 2016, 2017, 2018, 2019), DAWG (2017, 2018, 2019), and PMMM (2018). Hostile amendments seeking to remove CSE from these resolutions have been introduced on each of these occasions; however, these amendments have all been defeated and support for them amongst voting states has declined overall.

Special procedures have also contributed to, and have been impacted by, HRC resolutions. The term “special procedures” refers to independent experts, special rapporteurs, and working groups whose mandates are created through Council resolutions. With 44 thematic and 12 country-specific mandate-holders currently in place, these special procedures undertake country visits, act on individual cases and concerns, and conduct thematic studies. In doing so, special procedures help contribute to the development of international human rights standards and help enhance compliance with these standards through technical cooperation and through raising concerns of rights violations.⁴¹ Some special procedures have featured a strong focus on SRHR. Examples include the Special Rapporteur on health's reports from 2011 (on the criminalisation of sexual and reproductive health) and 2016 (on the right to health of adolescents, including sexual and reproductive health).^49,50 The Special Rapporteur on extrajudicial, summary or arbitrary execution's report on a gender-sensitive approach to arbitrary killings in 2017 stated that women's deaths resulting from absolute legal bans on abortion constituted gender-based arbitrary killing.⁵¹

The dynamic between resolutions and special procedures can often be mutually constitutive. For example, the 2010 Discrimination Against Women (DAW) resolution called for the creation of a five-person working group on DAW, which subsequently formed and developed seven annual thematic reports, including their 2015 report focused on “Eliminating Discrimination against Women in the Area of Health and Safety, with a Focus on the Instrumentalisation of Women's Bodies.” This report featured a strong focus on discrimination in access to sexual and reproductive healthcare services. Whereas the DAW resolutions from 2009 to 2015 did not include references to sexual and reproductive health and/or reproductive rights, the 2016 resolution referenced the aforementioned working group's report and featured a number of references to SRHR as a site of discrimination against women. Every subsequent resolution (which, as of 2017, was expanded from DAW to DAWG), has included language affirming aspects of SRHR. Without special procedures having explicitly demonstrated such a link, however, this may not have taken place.

Hence, technical expertise deriving from bodies like the OHCHR, special procedures, UNESCO, and the WHO have all contributed in part to normative advances on SRHR within HRC resolutions. Moreover, HRC resolutions have further supported the development of technical expertise in some of these bodies – in particular the OHCHR and special procedures – which has, in turn, led to the advancement of stronger SRHR language in HRC resolutions. This positive feedback loop may help to account for why some HRC resolutions have been able to advance normative gains related to SRHR in spite of shifts away from supporting SRHR among some UN member states.

Legal stream: how treaty bodies facilitate advances in the HRC

In contrast to some of the mutually constitutive advances within the technical and political streams, HRC resolutions generally do not hold as direct an impact on treaty bodies. However, we argue here that treaty bodies’ outputs have positively influenced HRC resolutions and that these gains are likely to continue in light of the prior jurisprudence and the limited opportunities SRHR opponents encounter in seeking to oppose SRHR in international law.

Treaty bodies are independent committees of experts tasked with reviewing signatory states’ compliance with treaty obligations. Though treaty bodies’ activities vary slightly depending on the treaty, one of their main responsibilities involves reviewing signatory states’ compliance with treaty provisions; this includes conducting regular reviews of signatory states following a “constructive dialogue” with the state, in advance of which civil society submits information and recommendations to the treaty body in question.⁵² Treaty bodies also interpret the scope and meaning of the treaty (which includes publishing general comments or general recommendations to provide guidance on interpreting the treaty's content). Treaty bodies’ work constitutes a significant pillar of multilateral human rights protection and promotion by contributing to the scope and perceived meaning of international human rights law, while also providing an accountability mechanism that monitors and supports state compliance.⁵²

Since the 1990s, treaty bodies have generated a growing corpus of general comments and recommendations that solidify the legitimacy of SRHR within the international human rights system. A comprehensive overview of such provisions within all ten treaty bodies is beyond the scope of this paper;⁵³ here, we reference two significant, recent illustrative examples of treaty bodies’ advances on SRHR, their interactions with the HRC, and the limited scope for opponents of SRHR to gain traction within these bodies.

In March 2016, the Committee on Economic Social and Cultural Rights (CESCR) released General Comment 22 on the Right to Sexual and Reproductive Health. This general comment affirms that these rights constitute state obligations under Article 12 of the International Covenant of Economic, Social and Cultural Rights (CESCR 2016).⁵⁴ This represents one of the most comprehensive instances of a treaty body legitimising and advancing SRHR as a state obligation.⁵⁵ General Comment 22 is significant insofar as its content will inform CESCR's regular reviews of signatory states’ compliance with the treaty. Further, General Comment 22 may also support advances by state-constituted UN bodies such as the HRC and by domestic civil society organisations working to ensure that states uphold SRHR obligations.⁵⁶

This comment has already supported some advances in HRC resolutions’ language, be they explicit or implicit. For example, the 2016 and 2018 PMMM resolutions reference sexual and reproductive health as an integral part of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.^48,57 The 2018 DAWG resolution included a reference to a “right to sexual and reproductive health”³⁸ – the title of General Comment 22 – as opposed to the resolution's earlier, more indirect articulation of a “right to attain the highest standards of sexual and reproductive health”, taken from the Beijing Declaration and Platform for Action.⁴ Further, the 2018 DAWG resolution references international human rights law and/or international human rights obligations on four separate occasions; given that treaty bodies’ general comments are commonly understood as guidelines for the interpretation of a treaty,⁵⁸ these references can therefore be interpreted as an endorsement of standards like the CESCR General Comment 22.

In some cases, opponents to SRHR have sought to gain inroads with treaty bodies; we highlight one highly visible and recent instance. The Human Rights Committee's (HRCtee's) decision to release a General Comment on the International Covenant on Civil and Political Rights’ Article 6 (the Right to Life) generated a groundswell of engagement on the part of organisations that oppose access to safe abortion services. Thirty anti-abortion organisations wrote submissions largely focused on defending “prenatal rights”; in response, SRHR advocates issued 33 written submissions in support of access to safe, legal abortion as a human right.⁵⁹

Yet, conservative civil society was constrained in their ability to advance anti-abortion language through the HRCtee; treaty bodies’ decisions are based on the text of the covenants and on existing international jurisprudence on human rights, neither of which have affirmed concepts like “prenatal rights.” As the HRCtee acknowledged in their draft comment following the aforementioned written submissions,⁶⁰ the Universal Declaration on Human Rights does not recognise conception as the beginning of life. In fact, while anti-abortion organisations succeeded in putting the issue of abortion firmly on the agenda during the preparation of General Comment 36, these efforts backfired by shoring up concerted support and engagement by academics, states, and civil society in support of access to safe, legal abortion. The resulting General Comment, released on 30 October 2018,⁶¹ includes much stronger provisions supporting abortion than may have been the case if anti-abortion advocates had not forced the issue.

Hence, even while the relationship between the HRC and treaty bodies is not as mutually reinforcing as was the case with some of the mechanisms/bodies identified in the technical stream, treaty bodies tend to build on past jurisprudence to further expand SRHR normative gains in the legal stream, and the resultant advances have helped bolster and legitimise normative gains related to SRHR in the HRC. Given that legal advances are not especially vulnerable to political influence or contestation, gains in this area may also help to account for how advances in the political stream have remained possible in the current political climate.

Conclusion

We examined prevalent strategies that states use to oppose SRHR within the HRC, including (a) blanket opposition (in which a range of SRHR issues are challenged concurrently and indirectly through processes like a resolution on “Protection of the Family”), (b) opposing or weakening language on SRHR in resolutions during negotiations, and (c) diluting the normative import of SRHR advances by introducing new resolutions and omitting references to SRHR within them. Notwithstanding these opposition strategies, and despite some states’ shift to a less favourable position in relation to SRHR, a number of resolutions have nevertheless incorporated unprecedented SRHR advances.

Our analysis suggests that the HRC's growing acknowledgement of SRHR in some resolutions has benefited from interconnections with other UN legal and technical mechanisms. SRHR normative advances within technical and legal streams appear less vulnerable to opposition than SRHR gains in political streams, since the basis for these advances derives from technical expertise and/or international jurisprudence and reasoning, rather than from states’ interests or from political agendas that may feature more prominently within the political stream. Moreover, HRC advances on SRHR are partially shielded from reversals on account of the Council's self-reinforcing dynamic whereby previously agreed language is difficult to omit and even more challenging to weaken. In our brief analysis of changes in the positions of the Brazilian, US and former Canadian governments on aspects of SRHR, we note that none succeeded in substantially undermining previous SRHR gains in the short term.

While the positive feedback loops that strengthen/uphold SRHR advances in the HRC appear to have held much of SRHR opposition in check, it remains to be seen whether this will continue to be the case over the medium-to-long term, as discussed in the case of Brazil.

As a review article designed to present a broad overview of how the HRC works, how SRHR has been advanced within the HRC, and how opposition to SRHR has sought to undermine such advances, there are limitations to the depth and rigour of our analysis. Our analysis did not aim to examine any particular resolution or stream in detail. Further research on topics such as how one resolution's SRHR language evolves over the course of one or several HRC sessions could help refine the robustness and scope conditions of some of our theoretical claims. Additionally, while our research alluded to the potential for HRC language to influence other UN negotiations and vice versa, further research examining how/whether HRC language has been incorporated into other UN negotiations would help to further contextualise this claim regarding the potential import of the HRC. Finally, our research has relied extensively on data and analysis presented by civil society, and in particular by the SRI; further accounting for the perspectives of UN officials and diplomats, including from diplomats that oppose SRHR, would present other avenues for fruitful future research.

Notwithstanding these limitations, our research puts forward several important contributions. At a theoretical level, our application of Gruskin et al's streams model¹ helps to better substantiate how normative gains travel across technical, legal, and political bodies, while also noting some scope conditions that limit the influence of these streams on one another. At an empirical level, this article helps explain the underexamined and at times inaccessible nature of how the HRC works and how significant gains and occasional setbacks on SRHR have been brokered. We contend that the normative advances on SRHR within the HRC are worthy of study and ongoing engagement. In the absence of scholars, practitioners, and civil society highlighting the HRC's advances and pressing for their implementation across relevant agencies and countries, it is unlikely that HRC resolutions will achieve their full normative potential. It is our hope that this article assists readers in better understanding and availing of the HRC's ongoing normative work in advancing SRHR.

Acknowledgements

The authors are grateful to Sandeep Prasad (Executive Director, Action Canada for Sexual Health and Rights) for his insights and feedback on several versions of this manuscript in advance of submission. The first author also wishes to express gratitude to Audrey Giles, Julie Moreau, and Rebecca Cook for their support of this work.

Disclosure statement

No potential conflict of interest was reported by the author(s)

ORCID

Erin Aylward http://orcid.org/0000-0002-9552-0150

Additional information

Funding

This work was supported by the Pierre Elliott Trudeau Foundation; Social Sciences and Humanities Research Council of Canada.

Notes

* This statement draws from the second author's observations and from the second author's personal communications with states and civil society organizations that are supportive of SRHR in Geneva.

† This statement draws from the second author's observations during the aforementioned informal negotiations in 2017.

‡ Within the UN, state delegations are generally referred to by the country's name (e.g. “Saudi Arabia” rather than “the Permanent Mission of Saudi Arabia to the UN in Geneva”). We adopt this convention in our review.

§ This statement draws from the second author's observations during the aforementioned informal negotiation in 2017.

** This point is rooted in our observation of HRC resolution negotiations and from the second author's experience in providing input to states advocating for SRHR in developing and refining HRC resolutions since 2012 through meetings with states.