Law, Social Justice & Global Development
(An Electronic Law Journal)

Putting it to Good Use: The International Covenant on Civil and Political Rights and Women’s Right to Reproductive Health

Dina Bogecho,
Research Associate,
Population Action International
New York, USA

dbogecho@popact.org

This is a refereed article published on: 4 June 2004

Citation: Bogecho, D, ‘Putting it to Good Use: The International Covenant on Civil and Political Rights and Women’s Right to Reproductive Health’, 2004 (1) Law, Social Justice & Global Development Journal (LGD). <http://elj.warwick.ac.uk/global/issue/2004-1/bogecho.html>

Abstract

This paper examines the protection of women’s reproductive rights under international law. The Cairo and Beijing Conferences specifically examined women’s rights as human rights and linked human rights with women’s right to reproductive health. The Beijing Conference pledged to end discrimination against women, marital rape, female genital mutilation, and domestic abuse, and, most importantly, upheld women’s right to free determination on all matters relating to sexuality and childbearing over and above religious and cultural differences. This paper examines the protection of these rights under the human rights framework established under the United Nations system, in particular, the International Covenant on Civil and Political Rights (ICCPR) and the monitoring of compliance of  ICCPR obligations under the Optional Protocol to the ICCPR by the Human Rights Committee.

Keywords: Human Rights, Human Rights Law, International Covenant on Civil and Political Rights, International Law, Reproductive Health, Reproductive Rights, Sexuality, Women 

Author’s Note

The author wishes to thank Professor Rebecca Cook, University of Toronto Faculty of Law, and Professor Mary Holland, New York University School of Law, for their technical help, advice, and support with this article. 
1. 	Introduction

For a woman to die from pregnancy and childbirth is a social injustice.  Such deaths are rooted in women’s powerlessness and unequal access to employment, finances, education, basic health care and other resources.  These factors set the stage for poor maternal health even before a pregnancy occurs, and make it worse once pregnancy and childbearing have begun.

In the words of Rebecca Cook and MF Fathalla, ‘[w]omen’s health is often compromised not by lack of medical knowledge, but by infringements on women’s human rights’.  Today, after decades of struggle, the right to health has finally been articulated in international treaties and is slowly being implemented as a human right in a few countries. International discussions on health and human rights have also openly addressed the importance of women’s reproductive health in particular.

Recently, the Fourth World Conference on Women, held in Beijing in 1995, specifically examined women’s rights as human rights.  The Beijing Platform confirmed the link between human rights and women’s reproductive rights and pledged an end to discrimination against women, marital rape, female genital mutilation, and domestic battering.  In addition to this, and perhaps most importantly, the conference emphasized the need for women to have the right to decide freely all matters related to sexuality and childbearing.  Most of the discussion at the Beijing Conference affirmed the statements made the previous year at the International Conference on Population and Development in Cairo and upheld the view that reproductive rights are human rights to be respected and to be guarded cross-nationally despite religious and cultural differences.

Although there now exists a general international consensus on the importance of women’s reproductive rights, are governments around the world taking these rights seriously?  How are human rights being used to advance women’s right to reproductive health, and what is being done to improve such reproductive health?  Furthermore, why is women’s reproductive health so important, and how can the International Covenant on Civil and Political Rights be used to promote and to protect women’s right to reproductive health?  This paper will address these questions.

The paper is organised into six parts.  Part 2 briefly examines the link between women’s health and human rights and discusses why human rights are so important to advancing women’s reproductive health.  Part 3 provides a short background to the United Nations treaty monitoring system by examining some of the major treaties that exist and looking at how they protect women’s health and human rights.  Part 4 explains how the International Covenant on Civil and Political Rights (ICCPR) in particular can be used to promote women’s reproductive health, focusing specifically on the fundamental ‘right to life’ delineated in the ICCPR.  In Part 5, the analysis will include: (a) how the Human Rights Committee has applied the right to life in examining the reports of various countries; (b) what the Human Rights Committee expects governments to do in order to positively protect the right to life under the ICCPR; and (c) how the concepts of health and human dignity have been imported into the ‘right to life’ under the ICCPR.  Finally, Part 6 will discuss how the Human Rights Committee can improve its Concluding Observations with regards to the health and rights of women in order to show state parties exactly what is required from them in their reports under the ICCPR.  The improvement in reporting, I argue, will enable the Human Rights Committee to effectively monitor each state’s compliance with the ICCPR, especially with regards to the protection of women’s right to life.
2.	Women’s Health and Human Rights

2.1.	 Background Statistics On Women’s Health Problems

United Nations reports disclose that illnesses and deaths from complications of pregnancy, childbirth, unsafe abortion, diseases of the reproductive tract, and the improper use of contraceptive methods top the list of health threats to women worldwide.  ‘Of the 150–200 million pregnancies that occur worldwide each year, about 23 million lead to serious complications such as post-partum haemorrhage, hypertensive disorders, eclampsia, puerperal sepsis, and abortion.’  As a result of these complications, about half a million women die every year, the vast majority of whom are from the developing world.  As the Executive Director of the United Nations Fund for Population Assistance (UNFPA) recently stated in a lecture, this number roughly translates into one woman dying during pregnancy or in childbirth every single minute.

The lifetime risk of dying from complications related to pregnancy and childbirth is in some countries as high as one in nine, and in others, as low as one in 8,700.  Almost eight million still births and neonatal deaths occur each year, most of them as a result of poorly managed pregnancies, and many more women and babies suffer debilitating and life-long consequences of poor healthcare during pregnancy and childbirth.  Women in Africa in particular suffer high maternal mortality rates.  How do these health problems relate to human rights, however?

2.2.	Human Rights and Women

Pillai and Wang define human rights as a ‘loosely organised set of formal and informal rules, codes, and norms which protect individuals against groups and organisations that threaten the survival and dignity of persons.’  Human rights stem from the notion that all human beings are equal and therefore have an equal right to enjoy dignity and security.  These ideas arose in the 17th and 18th centuries during the enlightenment and influenced philosophers such as Locke, Montesquieu, and Rousseau.  Initially, the concept of human rights applied domestically and did not have a place in the international sphere.  It was only toward the end of the eighteenth century and beginning of the 19th century that concern for individual human rights filtered into the international system.  An example of this occurred in the 19th century when slavery and the slave trade were abolished in Europe and the United States.  Later, following both world wars, international human rights were formally entrenched within the United Nations Treaty System.

The United Nations Charter was the first international document to formally give voice to the human rights movement after the Second World War.  The Charter laid out the United Nation’s basic purpose of securing and maintaining peace.  In 1948, the General Assembly adopted the Universal Declaration of Human Rights (UDHR).  The scope and meaning of the fundamental human rights listed in the UDHR were further elaborated upon and articulated in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).  Since the birth of the ICESCR and the ICCPR many other human rights treaties have been created in response to the egregious human rights violations that continue to occur around the world.

From the very beginning of the human rights treaty system, the various rights protected under the treaties were commonly separated into different ‘generations’ of human rights.  Three generations were established: The first deals with civil and political rights; the second addresses economic, social, and cultural rights; and the third focuses on group rights.  Nevertheless, despite this diverse range of existing treaties, Pillai and Wang maintain that ‘[p]erhaps one of the most conspicuous social categories which has been historically and universally discriminated against is women.’ Women do not yet enjoy their human rights equally with men.

Numerous studies have shown that despite the articulation of all three generations of human rights, women as a group are still not a priority for state parties.  In many cases, women are prevented from playing a significant role in the political process and are treated as second-class citizens.  Human rights have been historically defined, targeted and implemented for those who participate in the public spheres of the society and the economy.  Accordingly, much of the discrimination that women suffer is not considered appropriate for intervention by human rights groups and activists because it takes place in the private sphere, meaning at the family level.

Catharine MacKinnon echoes this concept in her argument that human rights grew out of men’s experiences and not women’s:

Human rights were born in a cauldron, but it was not this one.  Rape, forced motherhood, prostitution, pornography, and sexual murder, on the basis of sex and ethnicity together, have not been the horrors which so ‘outraged the conscience’ of the relevant legal world as to imprint themselves on the international legal order.

Human rights as a legal concept, therefore, did not traditionally encompass issues of women’s rights — such as safe motherhood and reproductive rights — because these issues did not come within the compass of men’s practice.  Men’s experiences of the violation of the right to life have not centred on death through pregnancy and childbirth.  For many expectant mothers around the world, however, the violation of the right to life centres entirely on death through pregnancy and childbirth.  Human rights law must take this reality into account.

The marginalisation of women from the sphere of human rights is being challenged; forcing the issue to an international level is an important achievement.  In 1981, the Convention on the Elimination of All Forms of Discrimination against Women (‘Women’s Convention’) finally came into force.  Articles 10(h), 11.1(f), 12, 14.2(b), and 16.1(e) of the Women’s Convention deal specifically with women’s health and reproductive rights.  However, this is not the first articulation of women’s reproductive rights, as explained below.

2.3.	Women’s Reproductive Rights as Human Rights

The right of a woman to choose when to have children or how many to have was initially articulated in the late 1960s.  The First International Conference on Human Rights, held in Tehran in 1968, identified the basic right of parents to ‘determine freely and responsibly the number and spacing of their children.’  This right of women to choose the spacing of their children was confirmed in other international conferences during the 1970s and 1980s and, over time, was developed and expanded upon to include a broader understanding of reproductive rights as consisting of a basic right to ‘reproductive self-determination and autonomy.’  Grounding reproductive rights within the concept of reproductive self-determination made it clear that systemic discrimination against women had to be tackled first in order to allow women to exercise their rights.  This understanding of the links between reproductive liberty and women’s individual autonomy led to the conclusion that reproductive and sexual rights were essentially embedded in the most fundamental human rights principles based on human dignity and guaranteed by international law.

A major turning point in the development of reproductive and sexual rights occurred in 1994 at the International Conference on Population and Development (ICPD) in Cairo.  The ICPD Programme of Action noted for the first time that ‘reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents.’  The ICPD in Cairo also emphasized that these human rights ensure reproductive and sexual health, bodily integrity and the security of the person.  It defined reproductive health as ‘a state of complete physical, mental, and social well-being, and not merely the absence of diseases or infirmity, in all matters relating to the reproductive system and to its functions and processes.’  One year later, the Beijing Platform defined ‘women’s reproductive health’ to include a satisfying and safe sex life, capacity to reproduce, and the freedom to decide if, when, and how to do so.  Therefore, at the heart of the reproductive rights movement are the convictions that the right to reproductive health, reproductive choice, and reproductive freedom are essential to the control of one’s life and that this can only be achieved by guaranteeing fundamental human rights to women.

From the definition of reproductive health set out by the ICPD in Cairo above, it is clear that women’s reproductive health does not exist in a vacuum.  In order for good reproductive health to be a realistic possibility, important economic, social and political conditions must be met:

Health advocates and human rights scholars have argued that health is a socially produced good that needs a combination of civil and political rights (the right to decide the number and spacing of children) and economic and social rights (the availability of contraceptives and safe and affordable health services) to attain the highest standard of sexual and reproductive health.

Such a conceptualisation of women’s health not only reveals the role of government in the realisation of women’s reproductive rights, but also brings to light how discrimination against women and denial of women’s human rights can impede the achievement of reproductive health and overall health.
The 1998 report by the World Health Organisation on safe motherhood explains that empowering women and guaranteeing them their human rights will improve their reproductive health.  Women’s reproductive health depends on the enforcement of their human rights because the concept of health is not simply a biological process of individual responsibility.  As mentioned above, the attainment of the highest standard of sexual and reproductive health depends greatly on social, economic, and political factors.

Generally speaking, therefore, at the heart of the concept of reproductive and sexual health and rights lies a truth that was widely deemed unacceptable as recently as the mid 1980s: that women’s human right to self-determination and equality must prevail even within the traditionally private procreative and sexual spheres.  Having determined this, we can now turn to the question of how human rights can be applied to the protection of women’s reproductive health by focusing on the treaty provisions that exist to protect women’s health.

3.	UN Treaties and the Protection of Women’s Reproductive Health

The right to health, which includes reproductive health and access to family planning, is mentioned in a number of treaties.  The first human rights treaty to articulate the right to health was the ICESCR, which, in addition to defining the right, lays out the steps necessary to realise it.  The ICCPR, adopted in the same year as the ICESCR (1966) does not specifically refer to the right to health, but instead lays out certain other key rights that are relevant, including Article 6(1) on the right to life, Article 9(1) on the right to life, liberty, and security, and Article 17 on the right to privacy.  The right of a woman to health and to information or advice on family planning is specifically addressed in the 1981 Women’s Convention, which currently has 177 state parties.

The right to reproductive health under the Women’s Convention is defined more strongly than under any other international instrument: ‘[i]n addition to guaranteeing equality and the freedom to determine family size, CEDAW [the Women’s Convention] guarantees non-discrimination in access to health care, including information and advice on family planning.’  Finally, the 1990 Convention on the Rights of the Child also refers to women’s right to health.  This right is expressed in terms of the right of women to maternal health care services, a right intimately linked to the right to health for children.
All of these above provisions reveal recognition by the international community of reproductive and sexual rights as fundamental human rights.  In addition, these treaties can be used all together to protect and to promote women’s right to reproductive health.  This paper, however, will focus only on one treaty, the ICCPR, and will analyze how the right to life [Article 6(1)] under the ICCPR can be used to promote women’s right to reproductive health.

There are several reasons why human rights advocates may prefer to turn to the ICCPR, in particular Article 6(1), when fighting for the implementation of reproductive rights, despite the previous statement that the Women’s Convention provides the strongest legal support for the right to reproductive health.  First, the Women’s Convention remains a controversial treaty, although ratified by 177 countries, as opposed to the 151 countries that have ratified the ICCPR.  This is because the ratifications of various provisions have come with numerous reservations and declarations.  Out of the 177 countries that have ratified the Women’s Convention, 24 have made reservations with regards to Articles 11, 12, 14, or 16, which specifically express women’s rights to health and reproductive freedom.  These reservations reveal that these 24 countries declare themselves not bound by the provisions in the Women’s Convention that protect women’s reproductive rights.  For example, Algeria has made general reservations to several articles, including Article 16, with the comment that it shall only abide by these articles if they do not ‘contradict the provisions of the Algerian Family Code’. Given that the intention behind the Women’s Convention is partly to forbid and eliminate gender bias enshrined within statutes and other legislation affecting women, Algeria’s decision to exempt its Family Code from the scope of the Women’s Convention reveals an unwillingness to fully pursue gender equality in areas where it matters most. A second example is that of Egypt, which has made reservations to Articles 2 and 16 of the Women’s Convention, thereby declaring itself not bound by the general requirement in Article 2 to eliminate gender discrimination in laws and statutes, and the more specific requirement in Article 16 to eliminate gender discrimination within marriage. The reason given by Egypt is that these articles may conflict with Shari’a law. Article 2 calls for an end to gender discrimination in the law, and thus lays out the core foundation of the Women’s Convention. As a result, Egypt’s reservation to this article is an attack on this core foundation. If the Government of Egypt refuses to agree to the requirement to end discriminatory laws, then it may as well dismiss the Women’s Convention entirely. Furthermore, reservations that are contrary to the purpose of a treaty are generally not allowed, and thus the reservations of Algeria and Egypt are disturbing and unfortunate.  By contrast, there have been no reservations made to Article 6(1) of the ICCPR.

Second, there is the issue of enforcement.  One hundred four countries have ratified the Optional Protocol to the ICCPR, allowing for individual or group complaints to be brought to the attention of the Human Rights Committee.  The Human Rights Committee (HRC) is the body that monitors compliance with the ICCPR.  The HRC accepts and examines reports submitted to it under Article 40 of the ICCPR.  The HRC also handles complaints about state violations, and issues ‘views’ in response to such complaints.  Since 1976, when this procedure was implemented for individual complaints, the HRC has handed down over 400 ‘views’ to countries that have had complaints brought against them.

By contrast, the Optional Protocol to the Women’s Convention currently has only 60 ratifications.  Similar to the Optional Protocol of the ICCPR, the Women’s Convention Optional Protocol allows individuals and groups to bring complaints to the attention of the Committee on the Elimination of Discrimination against Women, the body that monitors compliance with the Women’s Convention.  Just over three years old, this individual complaint procedure is only beginning to be used.

The fact that more countries are parties to the ICCPR Optional Protocol means that many more individuals and human rights groups have access to the complaints procedure before the Human Rights Committee, if they believe reproductive rights have been violated, than to the complaints procedure before the Committee on Elimination of Discrimination Against Women (CEDAW).  Even though more individuals might have access to the HRC via the Optional Protocol, only one person has actually made use of the procedure to complain about the violation of reproductive rights.

The broadening of the right to life under Article 6(1) of the ICCPR to include women’s reproductive rights is an area of new and emerging international jurisprudence.  Only in the past four or five years has the HRC really begun to point out to state parties that high rates of maternal mortality are a violation of Article 6.  As a result, it is not surprising that individuals have yet to use the Optional Protocol procedure to complain about the violation of reproductive rights.  Fortunately, this trend is about to change.  In November 2002, the Centre for Reproductive Rights in New York filed a complaint with the Human Rights Committee regarding the case of a young Peruvian woman who was prevented by state officials from terminating her pregnancy when she carried an encephalic foetus.  She was forced to carry the foetus to term, which seriously compromised her ‘life, [and] physical, and psychological health.’  This case appears to be the first case of its kind to be brought to the attention of the HRC.

Finally, one of the more general reasons we might wish to turn to the ICCPR instead of the Women’s Convention is simply the fact that the HRC is the oldest treaty monitoring body in existence and is thus arguably the most authoritative.  Although the views the HRC hands down when dealing with individual complaints are not binding, they do carry some weight.  The fact that over 1,000 complaints have been registered with the HRC since the Optional Protocol came into existence means that individuals must see the HRC as somewhat effective.  In addition, there seems to be less controversy over the provisions in the ICCPR, which may indicate that the states party to the ICCPR take their obligations more seriously than they might take their obligations under the Women’s Convention.

4.	The International Covenant on Civil and Political Rights

The ICCPR was opened for signature by the UN General Assembly on 19 December 1966 and entered into force on 23 March 1976.  As mentioned previously, 151 countries have ratified it.  The ICCPR deals in particular with what are typically referred to as ‘civil and political’ rights, such as the right to equality, the right to a fair trial, the right to life, the right to be free from arbitrary detention and torture, the right to free expression, the right to free association, and so forth.

The right to life in Article 6 of the ICCPR states:

1.	Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.
2.	In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.  This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
3.	When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4.	Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.  Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5.	Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6.	Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

The HRC explains that the right to life ‘is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation.’  The HRC notes that quite often, unfortunately, the information given by countries concerning Article 6 is limited to only one or another aspect of the right to life, despite the fact that this right should not be interpreted narrowly:

The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures.  In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics (emphasis added).

These words by the HRC reveal that the health of a population is a factor to be considered when dealing with the right to life.  One can argue that this right should be applied to the over 500,000 women who die of pregnancy-related causes every year, and that governments must therefore be held accountable for violating the right to life if they fail to significantly reduce national maternal mortality rates.  However, before one can hold a government accountable for neglecting a high rate of maternal mortality in a community, the causes of maternal mortality in that community must be understood: ‘If the causes are multifaceted . . . then the right to life may be invoked in addition to (other rights).’

The World Health Organisation emphasises that gender inequalities and discrimination limit women’s choices and contribute directly to their ill-health and death.  Unsafe abortion is one of the major causes of maternal death and is usually a result of restrictive abortion laws.  One could argue that a government, by prohibiting abortion, is violating a woman’s right to life:

If women are to be equal, governments have at least the same obligation to prevent maternal death as to prevent death from disease.  In fact, given that maternity, the sole means of natural human propagation, is not a disease, equity requires more protection against the risk of maternal mortality than against death from disease.

Cook cautions, nonetheless, that authorities have disagreed about whether Article 6 should be given a narrow or broad application.  Despite the HRC’s statement that Article 6 is not to be interpreted in a restrictive manner, it is generally recognized that the right is not all-embracing and that it does not ‘guarantee any person against death from famine or cold or lack of medical attention.’

Even if one uses the right to life in the ICCPR to include the right to life of pregnant women, how would one monitor state compliance with this right?  There would have to be a clear definition of the right, coupled with certain performance standards.  A precise formulation of the right is important because the right must ‘give rise to legal obligations on the part of a state, rather than merely setting a standard of conduct.’  Setting definitive standards is vital in order to ensure that state parties know how to apply the right to life and can be punished for violating it.  The right to reproductive health for women must be reinforced under international human rights law, otherwise this systemic discrimination against women will persist.

4.1.	How is the Right to Life Applied by the Human Rights Committee?

The right to life under the ICCPR has traditionally been interpreted as referring solely to the obligation of states to ensure that their courts observe due process of law before capital punishment is imposed.  In fact, most of Article 6 refers to capital punishment only.  This understanding of the meaning of the right to life is essentially male-oriented, as death from execution presents a more realistic threat to men than death from pregnancy or childbirth.  This narrow interpretation ‘ignores the historic reality of women...and is indeed a focus of sex stereotyping in that capital punishment cannot usually be applied to pregnant women.’  For women, however, the understanding of ‘right to life’ exists within an entirely different context.  For the majority of the world’s poorest women, death from reproductive health complications or labour is a much more immediate threat than death from execution, and the most obvious right violated in such cases is the right to life itself.

In order to understand how the right to life has been applied by the HRC, we will examine its ‘Concluding Observations’ on the reports of various state parties to the ICCPR.  Under Article 40, state parties undertake to submit reports to the HRC on the ‘measures they have adopted which give effect to the rights recognised [by the ICCPR] and on the progress made in the enjoyment of those rights.’ 
After receiving a report from a state party, the HRC must ‘study’ this report and then formulate its own report and general comments.  The response of the HRC to a state party’s report is known as a ‘concluding observation.’  A ‘General Comment,’ by contrast, is a statement made by the HRC that concerns the interpretation of one or more articles of the ICCPR.  Because the text of the ICCPR is extremely ‘terse about what is intended,’ State parties will find it easier to comply with the Covenant if the HRC sets out some guidelines regarding the interpretation of rights.  General Comments ‘develop and clarify the substantive content of an article by specifying the particular information that states are to provide about its implementation.’  The General Comment most important to this analysis is General Comment 6 on Article 6, written in 1982.

An examination of the HRC’s Concluding Observations over the past four or five years reveals that it has adopted a relatively broad view of the right to life, although this has never been specifically stated.  The right to life does, of course, still apply in the traditional sense (as in the right to be free from arbitrary killings).  Examples of situations where the right to life has been traditionally applied are: Algeria, where women have been victims of killings and other violence; Colombia, where ‘social cleansing’ operations targeting street children and prostitutes violated the right to life of these groups; and Sudan, where the state has imposed the death penalty for offences which cannot be characterised as ‘among the most serious,’ such as apostasy, committing a third homosexual act, illicit sex, and theft by force.

In plenty of other cases, however, the right to life has been applied in a broader context.  In its reports on Bolivia and Costa Rica, for example, the HRC states its concern regarding the very high level of maternal mortality that arises as a result of clandestine abortion.  In other reports, the HRC condemns the high incidence of domestic battering in Costa Rica and Columbia, and, in the report on Colombia, explicitly states that violence against women remains a major threat to their right to life and thus needs to be more effectively addressed.  The concluding comment on Japan also denounces the high incidence of domestic violence, rape, and the absence of any remedial measures to eradicate this practice.  The right to life, however, is not referred to in Japan’s report — perhaps because even though domestic violence is common, fatalities may not be as high as they are in Colombia.

General Comment 6 states that the right to life ought to include attention to life expectancy.  The Concluding Observations on Nepal reflect this concern.  The HRC mentions that the average life expectancy of women is shorter than that of men and stresses that this should be addressed.  The concluding observation on Peru is also of particular interest because the HRC clearly states that clandestine abortions are the main cause of maternal mortality, but yet goes on to say that the restrictive abortion laws that give rise to this situation are ‘possibly’ incompatible with Article 6.  The use of the word ‘possibly’ is disconcerting because it reveals the Committee’s reluctance to openly challenge the prohibition on abortion as a violation of a woman’s right to life.  It is arguable, nonetheless, that this reluctance is justified because the Committee is concerned about accusations of disregarding the religious beliefs that lie behind most laws restricting abortion.

Apart from discussing maternal mortality, the HRC also makes several references to the practice of female genital mutilation (FGM).  Senegal is one of the countries where a large number of girls are subjected to FGM, and when reporting on this issue, the HRC is more explicit regarding the effect of this practice on the right to life:

The Committee continues to be especially disturbed at the persistent custom of female genital mutilation, which violates Articles 6 and 7 of the Covenant, and the high rate of maternal mortality which results from that practice, from early childbirth and from the strict prohibition of abortion.

What exactly is being said here?  Is the HRC stating that the practices of FGM, early childbirth, and the strict prohibition of abortion all result in a high rate of maternal mortality and thus all lead to a violation of Article 6 of the ICCPR?  That seems to be the most likely interpretation. As a result, it seems that the HRC is implying that high rates of maternal mortality are indeed a violation of Article 6 and that countries must end such practices in order to avoid violating the right to life.

The HRC’s report on Sudan points out concerns similar to those discussed, supra.  As in Senegal, the Committee deplores the high maternal mortality rate, which it states ‘may’ be the consequence of ‘early marriage, clandestine abortions and female genital mutilation.’  The Committee explains that it is especially concerned about the practice of FGM in Sudan because it is practiced on female minors, who may suffer the consequences throughout their lives: ‘This practice,’ the HRC says, ‘constitutes cruel, inhuman and degrading treatment and violates Articles 7 and 24 of the Covenant.’  The mention of a violation of Article 6 is strangely absent here.  Are we meant to believe that FGM violates the right to life as practiced in Senegal, but does not when practiced on even younger girls in Sudan?  It is extremely important, when discussing violations of rights by various countries, that the HRC applies these rights in a consistent manner.  A country will have difficulty determining the exact nature and scope of a right if it is not applied consistently to all countries.

There are a few Concluding Observations in which the HRC makes more or less an explicit statement that restrictive abortion laws violate a woman’s right to life.  One mention occurs in a report on the United Republic of Tanzania, where the Committee ‘deplores the law in force in Zanzibar which allows for the imprisonment of both mother and father in the event of an unmarried woman becoming pregnant.’  The HRC clearly states that such a law carries risks to the right to life by encouraging resort to illegal abortion.  In its observations on Trinidad and Tobago, the HRC ‘recommends that legal limitations on abortion be reappraised and that restrictions which may risk violation of women’s rights be removed from the law, by legislation if necessary ([possible violation of] Arts 3, 6.1 and 7).’  In addition, the Committee’s 2001 concluding observation on Venezuela states:

[C]riminalisation of all non-therapeutic abortion poses serious problems, particularly in the light of unchallenged reports that many women are undergoing life-threatening illegal abortions.  The legal duty imposed on health workers to report cases where women have undergone abortions may deter women from seeking medical treatment, thereby endangering their lives (emphasis added).

Most recently, the HRC has become even more explicit when discussing the link between high rates of maternal mortality and the violation of the right to life. In its Concluding Observation to Sri Lanka in December 2003, the HRC notes that it is ‘concerned by the high number of abortions in unsafe conditions, imperilling the life and health of the women concerned, in violation of Articles 6 and 7 of the Covenant.’  The HRC therefore makes it clear that laws that force a woman to resort to illegal abortion risk violating the right to life.

The HRC has also applied Article 6 to the situation in India, where it claims that the practices of foeticide and infanticide of females violate the right to life.  This raises some interesting questions.  It is easy to see how infanticide would violate Article 6, but what about ‘foeticide’?  If by ‘foeticide’ the HRC is referring to the abortion of female foetuses, is it saying that in certain cases abortion violates the right to life?  Until now, we have seen how the Committee is trying in various ways to show that restrictive abortion laws may violate a woman’s right to life.  Is it saying in the report on India, however, that allowing an abortion violates the foetus’ right to life in certain circumstances ?

In the article ‘International Protection of Women’s Reproductive Rights’, Cook explains that ‘it is not generally accepted that international human rights conventions are applicable before the birth of a human being.’  Article 6(1) of the ICCPR ‘speaks of the right belonging to every human being….[a]ccording to traditional legal understanding, unborn life is not regarded as that of a ‘human being’ because, while ‘human’, it is not ‘in being.’’  Accordingly, she comes to the conclusion that international human rights law, as reflected in the Universal Declaration, the ICCPR, and the Convention on the Rights of the Child, does not recognise a right to life of the unborn.  The HRC’s statements on India, therefore, can be taken to mean that although abortion typically does not violate the right to life of a foetus, when it is practiced solely because the foetus is a girl, it may be seen as such.  The motive for the abortion is clearly important to the HRC.  If the foetus is aborted because ‘girl children are not valued for their own sake,’ condemnation of this ‘appears warranted.’  The discrimination women face in India is particularly harsh:

Often girl children suffer acute and pervasive discrimination in denial of equal shares with sons of food, health care, recreation, education, and economic opportunity.  They have no choice of marriage partners, age of marriage, or spacing and frequency of childbearing in marriage.

In light of this background and in light of the fact that the ICCPR emphasizes the ‘equal right of men and women to the enjoyment of all civil and political rights,’ the Committee’s criticism of female infanticide as a result of discrimination against women is justified.

The HRC Concluding Observations reveal other examples of countries that have violated Article 6 by ignoring women’s rights to health.  For example, in its Concluding Observations on the Democratic People’s Republic of Korea, the HRC states:

Given the State party’s obligation, under Article 6 of the Covenant, to protect the life of its citizens and to take measures to reduce infant mortality and increase life expectancy, the Committee remains seriously concerned about the lack of measures by the State party to deal with the food and nutrition situation in the Democratic People’s Republic of Korea and the lack of measures to address, in cooperation with the international community, the causes and consequences of the drought and other natural disasters which seriously affected the country’s population in the 1990s.

In addition, in its Concluding Observations on Hungary, the Committee more specifically addresses women’s reproductive health issues by declaring:

The Committee is concerned at the high maternal mortality rate in Hungary and the fact that the State party does not provide sufficient support for family planning through effective means of contraception.  The State party should take steps to protect women’s life and health, through more effective family planning and contraception ([violation of] Art 6).’

In its report on Sweden, the HRC reveals its concern over ‘cases of female genital mutilation and ‘honour crimes’ involving girls and women of foreign extraction ([possibly violating] arts. 3, 6 and 7 of the Covenant).’  Finally, the HRC also refers to domestic violence as a violation of Article 6.  In its concluding observation on Uzbekistan, the HRC notes that the state party:

… should take effective measures to combat violence against women, including marital rape, and ensure that violence against women constitutes an offence punishable under criminal law.  The State party should also organise awareness campaigns to address all forms of violence against women, including domestic violence, in order to comply fully with Articles 3, 6, 7 and 26 of the Covenant.

This brief look at the ways in which various countries have violated women’s right to life reveals how, in the context of reproductive health, ‘the absence of human rights guarantees in the private sphere has permitted the violation of the most obvious right — the right to life — to go unrecognised.’  Issues surrounding women’s health and pregnancy are usually relegated to the ‘private’ family sphere.  The failure of human rights guarantees to reach into this private sphere means that the protection of women’s rights in this area are ignored and the deaths of women through childbirth continue to go unnoticed.  The traditional understanding of the right to life has ignored the reality that the right is violated daily when women die in pregnancy or labour, and could be prevented if they only had better access to reproductive health care.

Fortunately, the HRC is both attempting to alert state parties to the ICCPR that Article 6 has a broader meaning and highlighting the neglected tragedy of maternal mortality, as is seen, for example, in its recent Concluding Observations to Mali, where the HRC explicitly emphasizes that high maternal mortality rates are a concern because they violate Article 6.  The Committee’s attempts to urge governments to address the problem of maternal mortality are more clearly revealed when examining its suggestions on how countries can take positive steps to protect the right to life.

4.2.	What Has the Human Rights Committee Required States to Do to Positively Protect the Right to Life?

An ethical observation relevant to reproductive health is that:

[r]ights claims, whether legal or moral, are commonly divided into two types: negative and positive.  This distinction is based on the difference between the right to be free to do something (a right to non-interference) and the right to be provided by others with a particular action, good or service (a right to benefits).

Generally, governments have an immediate obligation to implement rights guaranteed by treaties.  For example, governments are expected to immediately refrain from interfering with the right to free speech or to immediately release political prisoners whose right to a fair trial has been violated.  When it comes to second- and third-generation rights, however, such as the right to health, states face progressive, as opposed to immediate, duties.  When dealing with economic, social, and cultural rights, progressive obligations mean that governments must methodically and over time build up their capacities to ensure the rights at stake.

In cases such as ensuring women’s right to reproductive health, governments must play an active role in promoting the right: ‘[A]ttributing a purely negative or passive role to the state may appear inadequate.’  The HRC agrees with this and stresses that, due to the broad scope of the right to life, state parties are required to take positive steps to protect it.  The (negative) step of simply ‘refraining’ from restricting a freedom is often not enough. as can be seen, for example, in the HRC’s Concluding Observation to Mali, where it mentions that in order to guarantee the right to life, Mali ought to ‘[ensure] the accessibility of health services. . .ensure that its health workers receive adequate training. . .[and] help women avoid unwanted pregnancies. . .by strengthening its family planning and sex education programmes.’  All of these requirements place a burden on the State to actively carry out certain duties, such as building accessible health care centres, educating the public sector, and so on.

There are certain cases, however, where the Committee merely calls for a change to legislation.  One example is Armenia, where the HRC suggests that laws must be created to protect women from all forms of violence including rape.  Additionally, in its report on Chile, the Committee provides that Chile is under a duty to take measures to ensure the right to life of all pregnant women whose pregnancies are terminated by amending the law to introduce exceptions to the general prohibition of all abortions.  Costa Rica, by contrast, has been asked to take ‘all necessary measures, including the enactment of appropriate legislation (emphasis added)’ to protect women from domestic violence and also to introduce exceptions to the general criminalisation of all abortions.  The lack of specificity here may be problematic.  What exactly are ‘all necessary measures’?  Does this include education campaigns and the provision of shelters and rape crisis centres?  Why is it that Armenia merely needs to enact legislation to protect women from violence, while Costa Rica must take all necessary measures including enacting legislation?
The report on Lithuania also makes a reference to ‘additional measures.’  The HRC is concerned about the extent of violence against women, including forced prostitution.  Although there is a law against this, the HRC urges the state to take additional measures ‘to prevent, investigate and prosecute cases of domestic violence.’

A similarly vague call for positive measures is made in the concluding observation on Ecuador.  The observation requests that ‘all reported acts of violence against women be investigated and appropriate judicial proceedings instituted.’  In addition, the Committee recommends that Ecuador ‘adopt all necessary legislative and other measures to assist women, and particularly adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate health and education facilities.’  One assumes that the Committee is using the phrase ‘other measures’ to refer to the positive obligation upon the government to provide contraceptives and counselling to women, as well as post-abortion services.  This is only a guess, however, and it may be necessary for the HRC to set some minimum guidelines, so that countries know exactly what sort of positive obligations are expected from them.

In its concluding observation on Peru, the Committee maintains that the country ‘must ensure that laws relating to rape, sexual abuse and violence against women provide women with effective protection and must take necessary measures to ensure that women do not risk their lives because of the existence of restrictive legal provisions on abortion.’  The same request is made in the observations on Lesotho and Libyan Arab Jamahiriya.  With regard to Lesotho, the HRC recommends that the state ‘review the law of abortion to provide for situations where the life of the woman is in danger,’ while Libyan Arab Jamahiriya must provide the Committee with information on measures taken to reduce the high rate of maternal mortality and must ‘intensify its efforts to guarantee full equal enjoyment by men and women of all their human rights.’  The Concluding Observations on Peru and Lesotho make it clear therefore, that, in order to protect the right to life, abortion should be allowed in cases where the woman’s life is at risk.  The concluding comment on Libyan Arab Jamahiriya, however, leaves one wondering what exactly is meant by ‘intensifying efforts to guarantee women their human rights.’

In its Concluding Observation on India, the Committee presents a good outline of the positive obligations on the state.  The HRC points out that, although measures have been taken to outlaw child marriages, dowry-related violence, and sati (self-immolation of widows), these are only negative measures and ‘are not sufficient.’  Positive measures to protect the right to life include ‘measures designed to change the attitudes which allow such practices’  The government must ‘protect women from all discriminatory practices, including violence,’ and must also adopt special measures to prevent the occurrence of rape of women in custody.

In comparison to this report on India, the concluding comment on Iraq is disappointing.  The HRC applauds Iraq for protecting the right to life by repealing the law that exempted from prosecution certain ‘crimes of honour’ involving the killing of female relatives.  However, the single act of repealing a law is not enough.  By repealing this law, has there been an actual reduction in the number of crimes of honour committed against women?  Have there been any convictions?  Surely, such a longstanding practice will not cease simply because the law has been repealed.  Why is there no call for ‘positive measures to change the attitudes’ that supported this practice in the first place?  In the Concluding Observation on Sudan, for example, the HRC urges the country ‘to forbid, as a matter of law, the practice of female genital mutilation, making it a discrete criminal offence.’  Knowing that this will not be enough, the Committee states that positive measures must also be taken, such as ‘social and educational campaigns … to eliminate the practice’ by changing people’s attitudes.

It seems that in dealing with the concept of ‘positive’ obligations on states, the HRC trusts that state parties to the ICCPR will know what is expected of them.  Although clear on the point that simply enacting or repealing laws is not enough, when it comes to actually describing what positive steps a country must take, the Committee prefers to simply stress the need to take ‘additional’ measures.  Even in the report on India, the Committee did not quite explicitly state that the primary purpose of additional measures was to change discriminatory views through education.  However, in the report on Mali, the positive measures to ensure the right to life were frankly listed and included the need to make health services accessible, train health workers properly, and help women avoid unwanted pregnancies by strengthening family planning and sex education programs.

With regard to abortion laws, clear statements are given that abortion ought to be allowed where the woman’s life is in danger, and the HRC repeatedly underlines its concern about the high rates of maternal mortality, yet it is often silent with respect to the obligation of a state to ensure that all women have access to certain essential services, such as culturally sensitive pre- and post-natal care, family planning services, and education and counselling on contraception and safe motherhood.  Can it be argued, nonetheless, that, by condemning the high incidence of maternal mortality, the HRC is asserting that a woman’s right to health stems from the right to life ?

4.3.	 How are Health and Human Dignity Imported into the Right to Life ?

In discussing various risks to the right to life, the HRC does not only refer to the direct dangers of illegal abortion; it also concerns itself with domestic violence, rape, female genital mutilation, and the life expectancy of women.  All these factors directly influence a woman’s right to life by affecting her health and human dignity.

Violence in the form of rape, sexual abuse, or battering seriously impacts a woman’s health.  Heise explains that violence affects women’s ability to protect themselves from unwanted pregnancies and STDs, including AIDS: ‘Even where violence is not used to control women’s behaviour, the possibility of violence helps create an atmosphere of female deference to male decision-making regarding sexual behaviour and contraceptive use.’  These interpersonal barriers to women’s reproductive autonomy, Heise adds, can be as significant as government policy, if not more so.

Surveys suggest that pregnant women in particular are especially vulnerable targets for abuse:

[S]tudies indicate that women battered during pregnancy run twice the risk of miscarriage and four times the risk of having a low birth weight baby compared with women who are not beaten.  Battering during pregnancy is likely to have an even greater impact on Third World mothers who are already malnourished and overworked.

Women bear most of the responsibility in sexuality and reproduction, from contraceptive use to pregnancy, childbirth, and breastfeeding.  These greater responsibilities, when combined with the common lack of control over their sexual lives or access to the services and information they need, may significantly contribute to women’s reproductive ill health.

Heise provides an example of the Maternity Hospital of Lima, Peru, where 90 percent of the young mothers aged 12 to 16 have been raped by their father, stepfather, or another close relative: ‘These young women have had their reproductive rights transgressed in a way that could haunt them for life.’  Other studies reveal that partner approval is the most significant influence on a woman’s decision to use contraception.  Because inequality between the sexes has resulted in many women being so dependent on men, women do not have the power to insist on condom use and therefore cannot refuse men’s sexual and childbearing demands.

The HRC makes several efforts to address domestic violence in its concluding comments.  The report on Jamaica, for example, recommends that, in order to decrease violence against women, ‘increased efforts must be made to sensitise the population to the need to respect women’s dignity and that legislation should ensure ready access to remedies for violations of women’s human rights.’  Furthermore, the Committee advises that ‘social and educational programs be pursued’ to ensure that women’s rights are upheld as part of the abolition of discrimination.  The Concluding Observations on Uzbekistan also tackle the issue of domestic violence directly: ‘[t]he State party should … organize awareness campaigns to address all forms of violence against women, including domestic violence, in order to comply fully with Articles 3, 6, 7, and 26 of the Covenant.’

Colombia too, the Committee explains, must take measures to ensure full legal and de facto equality for women in all aspects of social, economic, and public life, including with respect to their status within the family.  The HRC is particularly adamant that the government prioritise women’s right to life by effectively combating domestic violence and by providing access to safe methods of contraception.  A similar concern for women’s human dignity is seen in the Concluding Observations on Ecuador, where the HRC is particularly concerned about the high number of suicides of young females that appear to be related to the prohibition of abortion.  The Concluding Observations reveal that the prohibition of abortion, even in cases of rape, impacts the human dignity of adolescent girls by causing them to suffer the consequences of such acts for the rest of their lives.

The Concluding Observation on Vietnam refers to the importance of creating adequate family planning programs to avoid life-threatening abortions.  The HRC states: ‘[t]he State party should take adequate measures to help women prevent unwanted pregnancies and avoid resorting to life-threatening abortions, and adopt appropriate family planning programmes to this effect.’
 	
Another form of violence that has dramatic implications for women’s reproductive health is female genital mutilation (FGM).  The reproductive health consequences of FGM are severe:

In addition to loss of sexual feeling, circumcised women often suffer chronic urinary tract infections, pelvic infections that can lead to sterility, painful intercourse, and severe scarring that can cause tearing of tissue and haemorrhage during childbirth …  [r]ather than being self-inflicted, genital mutilation is an act usually performed upon children with or without their consent, making it even more objectionable.

The HRC is especially adamant that states party to the Covenant outlaw the practice of FGM.  In its concluding comments on Lesotho, the Committee calls for the eradication of female circumcision which is ‘contrary to human dignity and violates … the right to life and … the right to protection against cruel, inhuman, and degrading treatment’.  The practice must be made punishable by law, and educational programs must be undertaken in this regard.

With regards to the problem of FGM and honour crimes in Sweden, the HRC states: ‘[t]he State party should continue its efforts to prevent and eradicate such practices.  In particular, it should ensure that offenders are prosecuted, while promoting a human rights culture in the society at large, especially among the most vulnerable sectors of immigrant communities.’  This latter request by the HRC is particularly interesting.  What steps must be taken to ‘promote a human rights culture’?  The HRC is probably referring to legal, political, and educational steps that must be taken to ensure respect for human dignity throughout Swedish society.  Complying with the right to life under the ICCPR thus necessitates promoting a basic respect for human rights throughout a nation’s culture.

Overall, the HRC promotes the view that violence against women is intimately connected to women’s rights to health and life.  Such violence negatively affects women; it damages their overall health, including their reproductive health, and takes away their power to make reproductive and sexual health choices.  Gender-based violence occurs within a context in which women are generally discriminated against and suffer from systemic violations of their human rights.

Some final illustrations of how the rights to health and human dignity have been imported into the right to life can be seen in the concluding comments on Nepal, Nigeria, Paraguay, Senegal, and Zimbabwe.  As to Nepal, the HRC suggests that the country adopt administrative and educational measures that ‘will eliminate traditional practices and customs detrimental to the well-being and status of women’ in order to increase their life expectancy’.  The Committee advises Nigeria to take steps, ‘in particular through education, to overcome certain traditions and customs such as FGM and forced marriages that are incompatible with the equality rights of women.’  Paraguay too, must take measures necessary to overcome traditional attitudes concerning the role of women in society.  The HRC also urges Senegal to abolish practices prejudicial to women’s health and to reduce maternal mortality; it encourages the country ‘to launch a systematic campaign to promote popular awareness of persistent negative attitudes towards women and to protect them against all forms of discrimination.’  Specific attention must be ‘given in the law to the problem of domestic violence,’ and there is a ‘need for information and education campaigns to prevent and combat any form of physical violence against women.’  Finally, educational campaigns must also be undertaken in Zimbabwe, where institutional mechanisms must also be established ‘to address all forms of violence against women and to provide assistance to victims of violence.’

Reviewing all these recommendations by the HRC reveals that the Committee is considering ‘governmental neglect of preventable causes of women’s mortality and morbidity as an affront to their human dignity and as part of a larger social phenomenon of systemic discrimination against women.’  Laws that deny women abortions and refuse to punish domestic violence and FGM are being challenged as violating women’s basic human rights, in particular, the right to life.  States party to the ICCPR can no longer neglect maternal mortality and women’s reproductive health.
Having said this, however, how effective are the Concluding Observations really?  Do they present to the state parties useful steps that can be taken to improve women’s health and cease violations of women’s right to life?  Are the observations consistent enough to enable easy comparison between countries or over time?

5.	What Minimum Standards Can We Expect from Concluding Comments?

Chapman provides an excellent summary of the factors needed in order to monitor the compliance of a state party to a covenant:

1) a clear conception of the specific component of the right and the concomitant obligations of States Parties; 
2) the delineation of performance standards related to each of these components, including the identification of potential major violations; 
3) collection of relevant data, appropriately disaggregated by sex and a variety of other variables; 
4) development of an information management system for these data that would facilitate analysis of trends over time; and 
5) analysis of these data.

As the HRC draws its Concluding Observations from the reports that the state parties submit, there is no doubt that its ability to write an accurate concluding comment will depend on the detail and the data included in the various country reports.  For example, if a state party provides no proper data on the incidence of maternal mortality or fails to explain what the major causes of maternal mortality are (as happened with Paraguay), the HRC will not be able to include this in the concluding comment.

Perhaps if state parties knew exactly what they were meant to include in their reports, and what their obligations were, they would be able to provide more accurate information.  The General Comments rendered by the HRC are meant to give guidance to various governments on the nature and scope of each article in the Covenant.  These General Comments, therefore, must be more specific.  For example, General Comment No. 6 does not mention that governments must attempt to reduce maternal mortality, and yet the HRC repeatedly stresses that high rates of maternal mortality reveal that women’s right to life is being violated.

In order to enable effective state monitoring and compliance, the Human Rights Committee must set out definite guidelines.  For instance (building on the factors Chapman proposes):

1) an updated definition on the nature and scope of the right to life, what it entails, and an idea of what governments’ positive and negative obligations are towards protecting this right;
2) the delineation of indicators to rate state parties on their compliance with this right, examples of major violations of the right and examples of how different countries have corrected their violations;
3) different recommendations of concrete implementations (instead of just asking the country to take ‘additional measures’);
4) request for specific data, desegregated by sex;
5) comparison with previous reports to reveal a trend or pattern;
6) if changes have been made by a country, a description of the impacts of those changes.

It is possible to see how a well-written Concluding Observation that contains all of the above information would be an excellent resource for effective state monitoring because it would enable the HRC to see, at a glance, the current status of the country with respect to the right to life: how the state is still violating the right to life and how it is attempting to address the violation, if at all.  It would also be easier to compare such reports over time.  The advantage of having a well-framed concluding observation can be seen in the cases of Peru and India, for example, two countries whose Concluding Observations present an informative portrayal of the current status of the right to life with respect to women.

The concluding observation on Peru is very interesting because although only three paragraphs in total deal with the problems faced by women, they are full of information.  Paragraph 13 opens by stating exactly in which areas the country failed to provide sufficient information on the status of women.  The Committee mentions precisely what it would like to have data on: ‘the legal capacity [of women], the frequency of violence against female detainees or prisoners, legal and practical restrictions in the labour sphere, and the impact of recent laws and programmes designed to solve the problem of violence against women.’  This establishes at the very beginning the weaknesses of the country report, and gives Peru a specific idea of what it will have to include in its next report.

Paragraph 15 points out specific laws that still need to be reformed or repealed.  The Committee points out exactly which provisions of the ICCPR are violated by the laws.  By giving Peru an indication of the kinds of laws that violate certain articles in the Covenant, Peru gains an understanding of the definitive nature and scope of the articles in question.  The concluding observation expresses concern with restrictive abortion laws, and confirms that illegal abortion is the main cause of maternal mortality.

Finally, in Paragraph 22, the HRC recommends which laws should be changed, and what measures implemented, to bring the country into compliance with the Covenant.  Without specifically asking Peru to abandon its restrictive abortion laws (a request that would only give rise to strong disagreement from the government), the HRC simply insists that the country ‘ensure that women do not risk their life by resorting to illegal abortion.’  This way, Peru is encouraged to come up with ways to reduce maternal mortality, while still maintaining laws that protect the ‘sanctity’ of life of the foetus.

The report on India is similarly effective in presenting a well-rounded depiction of the country’s compliance with the ICCPR with regards to women.  In Paragraph 16, the HRC acknowledges India’s attempts to take measures to comply with the ICCPR by enacting legislation to protect women’s right to life; in the same paragraph, however, the Committee emphasises that the enactment of legislation in this instance is not enough.  The impact of the legislation has been minimal in India, and therefore more positive steps must be taken to change attitudes toward certain traditional practices.

A list is provided of the specific provisions and practices that violate the Covenant (however, in this case, a list of which articles are violated is not provided).  The Concluding Observation then sets out recommendations and explains that it will need details on the specific functions, powers, and activities of the National Commission for Women in India’s next report in order to check on the continuing status of women in the country.  Finally, a list is provided of more areas where violations are occurring, and the Committee gives recommendations that must be implemented in order for India to comply with the Covenant; these definite guidelines makes it easier for India to know exactly what is expected.

The main problems with the Concluding Observations of other countries are generally: a lack of specificity with regards to which exact articles of the covenant are being violated; a lack of detailed recommendations to guide the country in correcting violations; and a lack of information on the impact of measures that have been taken in an attempt to comply with the Covenant.  The report on Iraq, for instance, welcomes the repeal of the law exempting ‘honour killings’ from prosecution, but is silent on whether this has actually reduced the number of honour killings.  The concluding comment on Nigeria demonstrates concern over the systemic discrimination against women but, apart from calling for general educational measures to change attitudes towards women, does not make any definite recommendations, nor ask for specific data to show the real frequency of violence toward women, nor even show how it intends to monitor the situation of women in general.

This lack of specific recommendations for dealing with the low status of women in Nigeria is especially disappointing.  Studies reveal that male dominance has deep sociocultural and religious roots in Nigerian society.  It makes sense, therefore, for the HRC to urge the government to undertake educational programs to change these traditional attitudes, but this is clearly not enough.  Osakue and Martin-Hilber state that even though Nigeria has ratified both the Women’s Convention and the ICCPR, and even though the 1979 constitution forbids discrimination based on sex, many legal texts still contain references to women as the property of their husbands, and wives are given few rights vis-à-vis their husbands.  None of these laws, however, are mentioned in the concluding comment on Nigeria.  The Committee does not demand that Nigeria create a federal law to prohibit FGM (as currently no such law exists) and is silent on the excessively high maternal mortality rate, which statistics show to be at 1,000 per 100,000 live births.

It can be argued, nonetheless, that even if the HRC had produced a detailed and specific report on Nigeria, the government may have paid little attention to it.  Even if one always managed to put together informative, well-framed Concluding Observations, Petchesky and Judd explain that the major problem with formal documents like Covenants is that (given the continued weakness and divisions plaguing international organisations), they rely for their enforcement on existing governments that are often corrupt, unstable, and uncommitted.

Unless international organisations are powerful enough to punish state parties for their continuous violation of human rights, there is little that can be done to enforce the fundamental rights delineated in international conventions.

6.	Conclusion

The Human Rights Committee has broadened the right to life under the ICCPR.  Due to this broadening of the nature of the right, Article 6 can now be used not only to protect people on death row, but also to protect women’s reproductive rights.  Maternal mortality must be redefined from being viewed as a ‘health disadvantage’ to being seen for what it is: a grave ‘social injustice.’  When governments begin to premise women’s reproductive rights on the right to life, they will have the legal and political basis they need to promote, fulfil, and ensure the right to reproductive health care for all women.  The World Health Organisation believes that the essence of promoting safe motherhood through human rights lies in conceiving of the multiple inequalities faced by women throughout their lives and their pregnancies as violations and injustices that governments have an obligation to remedy through political, legal and health systems.

The Human Rights Committee, by urging governments to undertake positive measures to reduce violence against women and to eradicate female genital mutilation, is advocating the view that women’s disempowerment is indeed a social injustice.  Although the positive obligations on governments still remain vague at this stage, the HRC is making clear that maternal mortality must be decreased and educational measures must be taken to change pervasive discriminatory attitudes towards women.  It is hoped that in the future, the HRC will be able to delineate more precisely the exact obligations on governments, and the true nature and scope of the right to life.  As Sadasivam explains, ‘rights are worth very little in the context of maternal mortality unless there are specific duties and obligations on the part of governments — for example, a major investment in a system of comprehensive maternity care.’  This is not ‘beyond the means of most countries provided there is a dramatic shift in priorities.’  We can also only hope that methods of reporting violations will improve and international bodies will be able to enforce human rights guarantees more effectively.  The weakness of implementation procedures among human rights treaty bodies is a significant obstacle to the attainment of women’s human rights.

In general, although this paper focuses on how Article 6(1) of the ICCPR can be used to advance women’s reproductive rights, this does not mean that the excellent protections afforded to women under other treaties should be neglected.  The numerous observations made by the HRC regarding the protection of women’s health echo comments that have been made by the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Committee on Economic, Social, and Cultural Rights (CESCR).  For example, CEDAW has emphasized that women’s right to health during pregnancy and childbirth is closely linked to their right to life.  In addition, CEDAW has consistently stated that maternal mortality due to unsafe abortion is a violation of women’s right to life.  In its General Recommendations, CEDAW has also explicitly required that certain impediments to women’s access to lifesaving health services be removed (such as high fees, spousal authorization, or punitive provisions imposed on women who undergo abortions).  The HRC should perhaps use these suggestions provided by CEDAW in its own Concluding Observations.  This way, the HRC can provide definite guidelines to state parties on how to reduce rates of maternal mortality, instead of simply urging them to take ‘additional measures’.

CESCR has also acknowledged that clandestine abortion is a major cause of maternal mortality.  In many of its own Concluding Observations, CESCR has urged state parties to address the problem of maternal mortality by implementing programs that increase women’s access to comprehensive reproductive health care and information.  Again, the HRC may be able to pick up some useful suggestions from the CESCR’s comments and guidelines on how best to reduce maternal mortality.

In conclusion, the Concluding Observations, general comments, and recommendations issued by treaty monitoring bodies such as the HRC, CEDAW, and CESCR provide guidance to states on their reporting obligations as well as on how to comply with treaty obligations.  During the past decade, the HRC, CEDAW, and CESCR have adopted general comments and recommendations aimed at empowering women to exercise their rights.  Though the general comments and recommendations are not legally binding, if the committees learn from each other in the areas in which their protection of women’s health overlaps, they will be able to put forward unified views on how women’s reproductive rights can best be achieved.  Working together will reflect the commitment to gender mainstreaming within the U.N. that was agreed to at the 1993 World Conference on Human Rights in Tehran.  The fundamental truth behind reproductive and sexual rights is that they are comprised of ‘intersecting and overlapping rights found in all of the principle human rights treaties.’  Thus, a consolidated approach to ensuring them will be most effective.  In a world where reproductive and sexual rights are so vulnerable to attack from those opposed to the full attainment of women’s rights, it is evident that a unified response from all the treaty monitoring bodies is the best way to ensure the protection and promotion of women’s health in the years to come.

Appendix A:  General Comment 6

1.  The right to life enunciated in Article 6 of the Covenant has been dealt with in all State reports.  It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (Art  4).  However, the Committee has noted that quite often the information given concerning article 6 was limited to only one or other aspect of this right.  It is a right which should not be interpreted narrowly.

2.  The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year.  Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited.  The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.  Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.  In this respect, the Committee notes, in particular, a connection between Article 6 and Article 20, which states that the law shall prohibit any propaganda for war (para 1) or incitement to violence (para 2) as therein described.

3.  The protection against arbitrary deprivation of life which is explicitly required by the third sentence of Article 6 (1) is of paramount importance.  The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces.  The deprivation of life by the authorities of the State is a matter of the utmost gravity.  Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.

4.  States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life.  Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.

5.  Moreover, the Committee has noted that the right to life has been too often narrowly interpreted.  The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.  In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

6.  While it follows from Article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the ‘most serious crimes’.  Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’.  The article also refers generally to abolition in terms which strongly suggest (paras 2 (2) and (6)) that abolition is desirable.  The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee.  The Committee notes that a number of States have already abolished the death penalty or suspended its application.  Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.

7.  The Committee is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure.  It also follows from the express terms of Article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant.  The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal.  These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.

Appendix B: State Parties to the ICCPR (As Of 3 November 2003) 

[* = also a state party to the Optional Protocol to the ICCPR] 

Afghanistan
Albania
Algeria*
Andorra*
Angola*
Argentina*
Armenia*
Australia*
Austria*
Azerbaijan*
Bangladesh
Barbados*
Belarus*
Belgium*
Belize
Benin*
Bolivia*
Bosnia & Herzegovina*
Botswana
Brazil
Bulgaria*
Burkina Faso*
Burundi
Cambodia
Cameroon*
Canada*
Cape Verde*
Central African Republic*
Chad*
Chile*
China
Colombia*
Congo*
Costa Rica*
Croatia*
Cyprus*
Czech Republic*
Cote d’Ivoire*
Democratic People’s Republic of Korea
Denmark*
Djibouti*
Dominica
Dominican Republic*
Ecuador*
Egypt
El Salvador*
Equatorial Guinea*
Eritrea
Estonia*
Ethiopia
Finland*
France*
Gabon
Gambia*
Georgia*
Germany*
Ghana*
Greece*
Grenada
Guatemala*
Guinea*
Guinea-Bissau*
Guyana
Haiti*
Honduras*
Hungary*
Iceland*
India
Iran
Iraq
Ireland*
Israel
Italy*
Jamaica
Japan
Jordan
Kenya
Kuwait
Kyrgystan*
Lao People’s Democratic Republic
Latvia*
Lebanon
Lesotho*
Liberia
Libyan Arab Jamahiriya*
Liechtenstein*
Lithuania*
Luxembourg*
Madagascar*
Malawi*
Mali*
Malta*
Mauritius*
Mexico*
Monaco
Mongolia*
Morocco
Mozambique
Namibia*
Nauru*
Nepal*
Netherlands*
New Zealand*
Nicaragua*
Niger*

Nigeria
Norway*
Panama*
Paraguay*
Peru*
Poland*
Portugal*
Republic of Korea*
Moldova
Romania*
Russian Federation*
Rwanda
Saint Vincent and the Grenadines*
San Marino*
Sao Tome and Principe*
Senegal*
Serbia and Montenegro*
Seychelles*
Sierra Leone*
Slovakia*
Slovenia*
Somalia*
South Africa*
Spain*
Sri Lanka*
Sudan
Suriname*
Sweden*
Switzerland
Syrian Arab Republic
Tajikistan*
Thailand
The Former Yugoslav Republic of Macedonia*
Timor-Leste
Togo*
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan*
Uganda*
Ukraine*
United Kingdom
United Republic of Tanzania
United States
Uruguay*
Uzbekistan*
Venezuela*
Viet Nam
Yemen
Zambia*
Zimbabwe

Appendix C: Selected Articles from the Convention on the Elimination of Discrimination Against Women 

[…]
Article 2 

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: 

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; 
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; 
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; 
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; 
(e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; 
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; 
(g) To repeal all national penal provisions which constitute discrimination against women. 

[…]
Article 10 
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: 

(a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; 
(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; 
(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; 
(d ) The same opportunities to benefit from scholarships and other study grants; 
(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; 
(f) The reduction of female student drop-out rates and the organisation of programmes for girls and women who have left school prematurely; 
(g) The same Opportunities to participate actively in sports and physical education; 
(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. 

Article 11 
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: 

(a) The right to work as an inalienable right of all human beings; 
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; 
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; 
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; 
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; 
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: 
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; 
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; 
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; 
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

Article 12 
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. 
[…]

Article 14 
1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. 
2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: 
(a) To participate in the elaboration and implementation of development planning at all levels; 
(b) To have access to adequate health care facilities, including information, counselling and services in family planning; 
(c) To benefit directly from social security programmes; 
(d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; 
(e) To organise self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment; 
(f) To participate in all community activities; 
(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; 
(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. 

[…]
Article 16 
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: 
(a) The same right to enter into marriage; 
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; 
(c) The same rights and responsibilities during marriage and at its dissolution; 
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; 
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; 
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; 
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; 
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.