THE LEGAL FRAMEWORK FOR THE REPRODUCTIVE RIGHTS OF WOMEN UNDER INTERNATIONAL HUMAN RIGHTS LAW
3.2 DEVELOPMENT OF LEGAL FRAMEWORKS ON WOMEN’S REPRODUCTIVE RIGHTS
3.2.2 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 Prior to the adoption of the UDHR, the UN agreed that its provisions would be transformed into
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Considering its origins, developing countries regard the UDHR as a Western idea – and therefore some of its provisions were regarded as impracticable due to cultural differences. Furthermore, wealthier countries connect human rights aid to economic relations with developing countries.26 Although the UDHR did not categorise rights, and although its provisions are mere declarations that are not legally binding, the declaration marks the genesis of the generalisation of the protection of human rights on a truly universal scale.27
3.2.2 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
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The process of child-bearing and rearing could have an impact on an individual‟s right to life.
Consequently, an individual must be able to make independent decisions in this regard – without of fear. In contrast to the UDHR and the International Covenant on Civil and Political Rights which provide remedies for the breach of any of the rights they protect, the ICESCR does not provide for remedies for its breach. This has been the major reason for violations.31 In contrast, many argue that the nature of the rights protected by these covenants has been responsible for their violation. For instance, when people die of hunger or thirst, the state will not be blamed for such a breach. Instead, society will blame either the victim or a nameless economic force.32 The fact that most of the states consider these rights non- justiciable – has affected their prominence.
The phrasing of the covenant has been a major impediment to its realisation. The UN attends to violations of civil and political rights by providing a communication mechanism through which a person whose rights have been infringed, can lodge a complaint with the international community. No such provision was made for economic, social and cultural rights.33 Article 2 of the ICESCR allows for the “progressive realisation” of the rights – unlike the ICCPR which requires immediate action. Furthermore, the scope of the rights protected is too broad.
Individuals are not able to bring an action when their rights under this Convention are infringed.
However, in order to ensure that these rights are justiciable, states that are party to the Convention are enjoined by the Committee on Economic, Social and Cultural Rights – in General Comment 3 – to provide legal remedies with respect to rights which may, in accordance with the national legal system, be justiciable.34
The implication is that countries that make legal provision for some of these rights can enforce them in their national courts. As a result, the justiciability of these rights has been subjected to several judicial considerations by domestic courts, in various states.35 South Africa is an example
31 Article 8 of the UDHR, note 31 (above), and Article 2 of the International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by the General Assembly resolution 2200 A (XXI) of 16 December 1966, and entered into force on 23 March 1976.
32 Scott Leckie “Another step towards indivisibility: Identifying the key features of violations of economic, social and cultural rights” (1998) 20(1) Human Rights Quarterly 82.
33 I. Biglino & C. Golay “The Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights” (2013) Geneva Academy of International Humanitarian Law and Human Rights 1, 3.
34 Economic, social and cultural rights handbook for national human rights institutions, note 41 (above) 35.
35 Ibid.
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of a state where people have approached the courts to enforce their socio-economic rights,36and a number of cases concerning socio-economic rights have been decided in South Africa.37 In this way, the socio-economic rights of the litigants were enforced without recourse to the ICESCR.
The lack of financial resources, and staff, and time constraints, has been a major challenge to the Committee – so limiting its effectiveness.38 Consequently, most of the states that have ratified this Covenant do so without the intention of implementing its provisions, taking into consideration the cumbersome compliance monitoring system which requires state parties to submit reports to the UN on the steps they have taken in observing the Covenant. This report is used to determine the status of the reporting state in complying with the provisions of the Covenant.39 The weak system has given states the courage to ratify the Covenant – without the intention of fulfilling its provisions. They can easily evade submission of reports or can submit inaccurate reports.
Having considered the inadequacies of the ICESCR, the UN came up with an Optional Protocol on the ICESCR (OP-ICESCR) – to fill the enforcement gap which has adversely affected the value of the Covenant since its adoption.40 The OP-ICESCR provides a means of communication whereby an individual whose right under the covenant has been infringed, can bring up an action. This could be done by him/herself or by a proxy. In addition to this, the Optional protocol accommodates collective actions. A group of individuals is also allowed to approach the Committee for redress whenever they feel that any of their rights protected by the ICESCR have been breached.41 However, this is subject to the complainant having exhausted all the available domestic remedies in respect of the issue.42
36 Sections 26 and 27 of the Constitution of the Republic of South Africa, make provision for socio-economic rights.
37 The Government of the Republic of South Africa v Grootboom 2000 (11) BCLR1169 (CC), Minister of Health and others v Treatment Action Campaign and Others (2002) 5 SA 703 (CC) – among others.
38 Audrey R. Chapman “Monitoring women‟s right to health under the International Covenant on Economic, Social and Cultural Rights” (1995) 44 American University Law Review 1157-1158.
39 Chapman , note 38 (above) 1157-1158.
40 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was adopted by the General Assembly on 10 December 2008 by Resolution A/RES/63/117, was opened for signature on 24 September 2009, and entered into force on 5 May 2013.
41 Article 2 OP-ICESCR.
42 Article 3 OP-ICESCR.
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Furthermore, the OP-ICESCR allows inter-state communication whereby a state party can lay a complaint before the Committee on the non-fulfillment of an ICESCR obligation by another state.43 This will help to ensure the enjoyment of the rights granted under the Convention. A country that makes efforts to ensure that its citizens enjoy these rights, will be eager to lay a complaint against a neighbouring country that is making little or no effort – to ensure that the citizens of the other country do not migrate to it in search of such rights – thereby limiting their realisation. However, in- spite of this envisaged advantages of inter- state communication, states are unwilling to subscribe to this procedure as the process could be politicised and lead to rivalries among states.44
The OP-ICESCR, an instrument adopted to make the socio-economic rights contained in the ICESCR enforceable, is an Optional Protocol. In other words, even if a country is a party to the ICESCR, it is not compelled to ratify or accede to the Optional Protocol. It goes without saying that if a country chooses not to ratify the Optional Protocol, the enforceability of the socio- economic rights of the citizens of such a country is not guaranteed. Given this fact, even with the Optional Protocol, the universality of these rights is still in doubt. South Africa signed the ICESCR on 3 October 1993 and ratified the treaty on 12 January 2015. Even though South Africa delayed ratification of the treaty, some of its socio-economic rights are already included in its Bill of Rights. While Nigeria acceded to the treaty on 29 July 1993, the country has done little or nothing in relation to its provisions. The attitudes adopted by these two countries in relation to the ICESCR and other international treaties on the protection of the reproductive health rights of women, will be examined in more detail later in this chapter.
3.2.3 Convention on the Elimination of all Forms of Discrimination against Women