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
3.2.1 The Universal Declaration of Human Rights (UDHR) 1948
The UDHR - which came into force in 1948 – marked a turnaround in the generalisation of the international protection of human rights. No previous document on the development of human rights was as universal and comprehensive as the UDHR. It was adopted by the UN General Assembly on 10 December 1948. The period preceding the adoption of the UDHR was difficult for the international community – as the Cold War led to cruel violations of the basic rights of individuals. The promotion of human rights was not one of the goals of the UN when it was founded in 1945. However, the global body embraced human rights after having discovered its sensitivity in the aftermath of the Cold War. According to one of the delegates that drafted the UDHR, the document “was inspired by opposition to the barbarous doctrines of Nazism and Fascism”.19
16 Cook, note 11 (above).
17 Adopted on 25 November 2005.
18 Convention on the Elimination of All Forms of Discrimination against Women, the Protocol to the African Charter on Human and Peoples‟ Rights, International Covenant on Economic, Social and Cultural Rights.
19 John F. Sears “Eleanor Roosevelt and The Universal Declaration of Human Rights” Franklin and Eleanor Roosevelt Institute. Available at: http www.fdrlibrary.marist.edu/library/
Mr Malik was the Lebanese representative.
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General Carlos Romulo of the Philippines was successful in including a statement in the UDHR, that respect for human rights applied to everyone “without distinction as to race, sex, language and religion”.20 This and other efforts sought to eradicate the superiority complex which had led to the loss of lives of so many people in the international community. The journey to the drafting of the UDHR was a long and tough one – due to its nature which involved different states with different dispositions and ideas.
To further ensure the promotion and protection of human rights, a “nuclear” commission (preparatory committee) was constituted after the first UN General Assembly. The commission was tasked with recommending a structure and mission for a Commission on Human Rights. At its inaugural meeting, the commission elected Eleanor Roosevelt as its Chairperson.21 The provisions of the UDHR were intended to meet the immediate need of the international community – to put an end the gross human rights abuses experienced during the Second World War.
During this period, there was no respect for human life, and some individuals felt that because of their political positions or their pedigree, they were superior to others. Nazism and Fascism led to gross human rights abuses. Fascism does not respect human rights; the state controls every aspect of an individual‟s life, leaving no room for freedom – and even freedom of thought was prohibited.22 Accordingly, Article 1 of the UDHR provides that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. This Article addresses the issues of inequality and discrimination that were predominant before and during the Second World War.23
To further eradicate the scourges of Nazism and Fascism, based on his personal experience, the delegate from the Soviet Union urged the committee to include Article 2, which dealt extensively with the issue of discrimination. The committee considered discrimination the most important issue. When individuals consider themselves equal to other persons, it becomes difficult to injure
20 Sears, note 19(above).
21 Idem .
22 Johannes Morsink “World War Two and the Universal Declaration” (1993) 15 Human Rights Quarterly 360.
23 Idem 362-363.
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or do anything that will inflict any harm, either physical or psychological, on another person.24 Hence the inclusion of Article 2, which reads as follows:
Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth or other status, Furthermore, no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
The UDHR comprises 39 articles, framed with the aim of giving more value to human life.
Considering the antecedents and the provisions of the declaration, it goes without saying that at the time of its drafting, the reproductive health rights of women were not directly contemplated.
There are some provisions that support the right of autonomy in relation to an individual‟s body.
For instance, Article 1 states that all human being are born free and that they are equal in dignity and rights. It follows that all human beings are the same; no one is inferior or superior to another.
Hence, no individual is allowed to impose his/her will on another person in a bid to subjugate such an individual. In the same vein, Article 2 affirms that no one is superior to another in exercising the various rights and freedoms contained in the declaration. Article 3 provides for the universal right to life, liberty and security of persons. This particular article accommodates the reproductive health rights of women, because the right to life, security and liberty are indispensable in guaranteeing reproductive autonomy.
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 fear. Articles 12 and 16 of the UDHR support the reproductive health rights of women. Article 12 deals with the right to privacy, which is vital to reproductive health rights.25 Reproductive autonomy cannot be achieved when there is interference of any kind in relation to an individual‟s body. The provisions of Article 16 are extremely important to reproductive health rights. It states that:
24 Sears, note 19 (above).
25 Article 12 of the Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly Resolution 217 A(111) of 10 December 1948.
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1. Men and Women of full age, without any limitation due to race, nationality or religion have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
Article 16 does not specify what „full age‟ is; this may offer space for those who debate this issue. The other provisions of the article are crammed with requirements for autonomy. They forbid discrimination on any grounds. Men and women have equal rights in marriage. It follows, therefore, that just as a man is free to make decisions in relation to his body, so is a woman at liberty to do whatever she likes; no one has a superior right over the other. The UDHR also forbids any form of coercion into marriage, and, according to the article, society is expected to help to make the union a success. Society can only perform this function through the various laws and norms that are in place in relation to marriage.
Article 27 gives an individual the right to freely enjoy scientific advancement and to participate in the cultural life of the community. This provision is not directly linked to the reproductive health rights of women, but in a way gives a woman the liberty to benefit from scientific advancements – such as family planning and sterilisation services, among others, without any form of coercion. The article supports the fact that, even if a particular society does not believe in autonomy in relation to one‟s body – an individual who is a member of such a society, is at liberty not to align themselves with the beliefs of their society.
The UDHR has been criticised for several reasons. Although the chairperson of the committee that drafted it, Eleanor Roosevelt, was a woman, the provisions of the articles were gender indifferent. They do not address the various issues that affect women – especially those that relate to their reproductive health rights. This is due to the circumstances that surrounded the drafting of the UDHR. The UDHR was drafted to give more value to human life in order to avert a reoccurrence of the various killings that took place during World War 1 and 11. As a result of this, the reproductive autonomy of women was not envisaged at this time.
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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