ILP Summary of Strategic Planning 2003/Summary

The following is the reproduction of a section entitled "Summary of Strategic Planning through October 31, 2003" from a program summary of various meetings held by the International Legal Program (ILP) of the Center for Reproductive Rights between September - November, 2003. This summary was submitted to the Congressional Record by Congressman Chris Smith on Monday, December 8, 2003, where it was reprinted in its entirety.[1]

Introduction

Staff lawyers in the International Legal Program, (ILP) have met three times with Nancy Northup, Nancy Raybin and Elizabeth Lowell (September 3, September 23, and October 16) to discuss our strategic direction. In the periods between those meetings, ILP staff met and worked on the memos attached hereto, as well as two other working memos. We have stepped back and considered the types of strategic legal work the ILP has worked on to date, examining in particular how we evaluate or measure our effectiveness. We reflected on our key accomplishments, and the constant challenge of being in far higher demand than we have resources. This led us to discuss and further develop the ILP's "theory of change" (see Memo 2).

What is our overarching programmatic objective and what should that mean in terms of hard choices on how to focus our work in the next 3‑5 years? We have made some solid progress in answering that question, as outlined below:

The ILP's overarching goal is to ensure that governments worldwide guarantee reproductive rights out of an understanding that they are legally bound to do so.

We see two principal prerequisites for achieving this goal:

Strengthening international reproductive rights norms

Norms refer to legal standards. The strongest existing international legal norms relevant to reproductive rights are found in multilateral human rights treaties. Based on our view of what reproductive rights should mean for humankind, the existing human rights treaties are not perfect. For example, at least four substantive areas of reproductive rights illustrate the limits of international reproductive rights norms in protecting women: (a) abortion; (b) adolescent's access to reproductive health care; (c) HIV/AIDS; and (d) child marriage. One strategic goal could be to work for the adoption of a new multilateral treaty (or addendum to an existing treaty) protecting reproductive rights. The other principal option is to develop "soft norms" or jurisprudence (decisions or interpretations) to guide states' compliance with binding norms. Turning back to the four substantive areas noted above, in all four cases, it is possible to secure favorable interpretations. Indeed, the Center has begun to do so. (For an in‑depth discussion of this, see Memo 1).

In theory, existing international norms are broad enough to be interpreted so as to provide women with adequate legal protections. Therefore, we are in agreement on the need to work in a systematic way on strengthening interpretations and applications of the existing norms. If, at the end of 2007, we determine that the existing norms are proving inadequate (as evidenced by the interpretations we seek), then we would reconsider whether to undertake a concerted effort to secure a new international treaty or addendum to address this gap. We would supplement our own conclusions by convening a conference or expert group to consider whether it would be strategic to pursue such an effort.

Consistent and effective action on the part of civil society and the international community to enforce these norms

This action follows from the premise that the best way to test existing international reproductive rights norms is to make governments accountable for them. In other words, to work for their enforcement or implementation. We would seek to do this by: (a) developing activities aimed at enforcement of international protections of reproductive rights in regional and international fora; and (b) working for the adoption and implementation of appropriate national‑level norms. The regional and international fora with a quasi‑judicial character arguably offer the most promising venues for securing justice and interpretations that actually change governments' behavior. To date, we have used the Inter‑American Commission on Human Rights (three cases, one pending) and the UN Human Rights Committee (which oversees compliance with the International Covenant on Civil and Political Rights) (one case pending). We believe that seeking favorable interpretations from the quasi judicial mechanisms of the European human rights system, the African system, and other UN individual complaint mechanisms will be particularly important in the next 3‑5 years.

Ultimately, underlying the goal of strengthening international norms and enforcement is that of ensuring that appropriate legal norms are in place at the national level so as to improve women's health and lives. Working on the above prerequisites can help bring about national‑level normative changes (since one key way for governments to comply with international norms is to improve national norms). But these processes are not linear and the adoption of appropriate national‑level norms may be feasible first (without advocates' emphasis on governments' obligation to apply international norms). Such new national‑level norms can, in turn, influence and strengthen international standards. Our goal above is reached only when governments in fact guarantee women's reproductive rights; first by adopting appropriate laws and policies, and, second, by adequately implementing them.

We have begun the process of considering what the above theory of change means for our work: It will mean concentrating on securing strong interpretations the strength of international reproductive rights norms. But the work suggested by the discussion above is still greater than our resources. We must think in terms of working in a concerted way on certain reproductive rights issues; in a smaller number of focus countries; and on honing our ability to provide cutting edge input on relevant international and regional norms and on providing a comparative legal perspective. (i.e., analysis of laws and judicial decisions across countries).

Memo #1: International Reproductive Rights Norms: Current Assessment

Our goal is to see governments worldwide guarantee women's reproductive rights out of recognition that they are bound to do so. An essential precondition is the existence of international legal norms that encompass reproductive rights and guarantee them the broadest possible protection. Our task, therefore, is to consider the current content of international law relating to reproductive rights and assess its adequacy for guiding government decision‑making and holding governments accountable for violations of international norms.

This memo provides an overview of the sources of international law that may be invoked to protect reproductive rights, examining both binding treaty provisions (hard norms) and the many interpretative and nonbinding statements that contribute to an understanding of reproductive rights (soft norms). It examines four substantive areas that illustrate the limits of international law in protecting reproductive rights: (a) abortion, (b) adolescents' access to reproductive health care, (c) HIV/AIDS, and (d) child marriage. The memo then considers whether, given existing support for reproductive rights in international law, reproductive rights activists should seek new protective norms or whether our efforts would be better spent seeking stronger mechanisms for enforcement of existing norms. Assuming that our goal is to pursue the development of international norms, there are several approaches we could take:

  • Develop a jurisprudence of existing norms that guides states' compliance with binding norms;
  • Strategically work toward developing customary norms; and
  • Work to create another binding instrument, such as an international treaty or a protocol to an existing treaty.

The Foundations of Reproductive Rights in International Law

By way of introduction, international human rights law is grounded in both "hard" and "soft" norms. Legally binding or "hard" norms are norms codified in binding treaties such as the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As a result of the hard‑fought efforts of human rights activists, hard norms have gradually been extended to more and more of the human family, including ethnic and racial minorities, women, children, and refugees and internally displaced people.

Supplementing these binding treaty‑based standards and often contributing to the development of future hard norms are a variety of "soft norms." These norms result from interpretations of human rights treaty committees, rulings of international tribunals, resolutions of inter‑governmental political bodies, agreed conclusions in international conferences and reports of special rapporteurs (sources of soft norms include: the European Court of Human Rights, the CEDAW Committee, provisions from the Platform for Action of the Beijing Fourth World Conference on Women, and reports from the Special Rapporteur on the Right to Health.)

Reproductive rights advocates, including the Center, have found guarantees of women's right to reproductive health and self‑determination in longstanding and hard international norms, relying on such instruments as the Universal Declaration on Human Rights (Universal Declaration), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) . This approach received international affirmation (in a soft norm) at the International Conference on Population and Development (ICPD) in the conference's Program of Action. Paragraph 7.3 of that document states: "[R]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents."

We and others have grounded reproductive rights in a number of recognized human rights, including: the right to life, liberty, and security; the right to health, reproductive health, and family planning; the right to decide the number and spacing of children; the right to consent to marriage and to equality in marriage; the right to privacy; the right to be free from discrimination on specified grounds; the right to modify traditions or customs that violate women's rights; the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment; the right to be free from sexual violence; and the right to enjoy scientific progress and to consent to experimentation. .

Our publications feature legal arguments resting on these broad principles, many of which have been well received by treaty monitoring bodies and other authoritative U.N. bodies. Still, there are some arguments that could be considerably strengthened with legal norms that relate more specifically to reproductive matters. The next section will briefly discuss four areas in which international law provides less protection than desired.

Gaps in Existing Norms

Abortion

We have been leaders in bringing arguments for a woman's right to choose abortion within the rubric of international human rights. However, there is no binding hard norm that recognizes women's right to terminate a pregnancy. To argue that such a right exists, we have focused on interpretations of three categories of hard norms: the rights to life and health; the right to be free from discrimination; those rights that protect individual decision‑making on private matters.

Bolstered by numerous soft norms, the assertion with widest international acceptance is that a woman's right to be free from unsafe abortion is grounded in her rights to life and health. The right to life has been interpreted to require governments to take action to preserve life. The right to health guarantees the highest attainable level of physical and mental health. Because unsafe abortion is responsible for 78,000 deaths each year and hundreds of thousands of disabilities, criminalization of abortion clearly harms women's life and health . The international community has recognized the dangers of unsafe abortion. Statements to that effect were adopted at the International Conference on Population and Development in Cairo (1994) and the Beijing Fourth World Conference on Women (1995), as well as the recent 5‑year reviews of these conferences.

While this has been an important stride, the global community has fallen short of recognizing a right to independent decision-making in abortion, providing us with relatively few soft norms. We argue that the right to make decisions about one's body is rooted in the right to physical integrity, which has been interpreted to protect against unwanted invasions of one's body. We assert that the right to privacy protects a woman's right to make decisions about her reproductive capacity. We also rely on the right to determine the number and spacing of one's children. Here, the soft norms arguably work against us, particularly given the phrase repeated in both the Cairo and Beijing documents affirming that under no circumstances should abortion be considered a method of family planning .

We have also grounded our arguments in the right to be free from gender discrimination, which is protected in every major human rights instrument. Because restrictive abortion laws deny access to health care that only women need, they constitute discrimination in access to health care. This position is supported somewhat obliquely in a CEDAW general recommendation. In addition, we argue that by denying women the means to control their own fertility, restrictive abortion laws interfere with women's ability to enjoy opportunities in other sectors of society, including educational and professional opportunities. No soft norms affirm this argument.

Adolescents ― Access to Reproductive Health Services and Information

The Center has taken a leading role in pressing for protection of adolescents' right to access reproductive and sexual health information and services. In creating a human rights framework for such rights, we use the same hard norms that form the foundation for non‑adolescent women's right to access reproductive health services. However, the challenge is to assert that the hard norms apply to adolescents under age 18. We rely almost exclusively on soft norms to do this since none of the treaties explicitly discuss adolescents' reproductive rights .

Rights Relating to the Right to Reproductive Health
  • The right to health (including family planning services and education);
  • The right to life; and
  • The rights to education and information.

With respect to the first cluster of rights, the hard norms relating to women's right to access reproductive health services and information are well established and accepted. However, there is no hard norm specifically stating that these provisions also protect adolescents' right to access reproductive health services and information. There is one important, and somewhat ambiguous exception. A recent interpretation suggests the provision on the right to health, which asks states parties to develop family planning services and education, applies to children/adolescents.

Rights Relating to Reproductive Decision Making/Autonomy
  • Right to privacy;
  • Right to plan the number and spacing of one's children; and
  • Rights to liberty and security of person.

In issues relating to adolescents' reproductive autonomy and decision‑making, there are even fewer hard norms and it is even more difficult to say that these hard norms apply to adolescents under the age of 18 and their reproductive decision‑making . For example, the Children's Rights Convention (CRR) provisions on the right to privacy are problematic, prohibiting "arbitrary or unlawful interference with his or her privacy." The provision is not explicit that the right applies to health services and the use of "unlawful" could imply that only interferences that contravene national law would be prohibited. There are no hard norms on: (1) confidentiality in provision of health services or information; (2) prohibiting parental consent requirements and (3) third party authorization for access to reproductive health services and information.

The Right To Be Free From Discrimination

While there are hard norms prohibiting sex discrimination that apply to girl adolescents, these are problematic since they must be applied to a substantive right (i.e., the right to health) and the substantive reproductive rights of adolescents are not 'hard' (yet!). There are no hard norms on age discrimination that would protect adolescents' ability to exercise their rights to reproductive health, sexual education, or reproductive decision-making. In addition, there are no hard norms prohibiting discrimination based on marital status, which is often an issue with respect to unmarried adolescents' access to reproductive health services and information.

The soft norms support the idea that the hard norms apply to adolescents under 18. They also fill in the substantive gaps in the hard norms with respect to reproductive health services and information as well as adolescents' reproductive autonomy. Two important standards are applied in order to fill in the gaps:

  • The "Evolving Capacity of the Child" standard, which limits parental control to the extent that children take on more autonomy as their capacities grow. (e.g., An adolescent who is sexually active and is taking the initiative to seek out means to protect herself from STIs and unwanted pregnancy is demonstrating a level of maturity to justify access.)
  • The "Best Interest of the Child" standard, which mandates that in the context of health, parental involvement that prevents adolescents from accessing potentially lifesaving information and services is NOT in the child's best interest. Rather, it is in the best interest of adolescents to have access to the means to protect themselves. It is often in the best interest of the child to be granted autonomy in decision‑making.
Soft Norms Relating to the Right to Reproductive Health

The Treaty Monitoring Bodies (TMBs) have explicitly interpreted adolescents' right to health as including the right to access services and information on reproductive health. In addition, they have called for sexual education in the context of the rights to education and information. Both the International Conference on Population and Development (ICPD) and the Beijing Platform for Action (Beijing PFA) further help to fill in the gaps in this cluster of substantive rights, clearly stating that these rights apply to adolescents.

Soft Norms Relating to the Right to Reproductive Autonomy/Decision‑Making

Soft norms supplement the dearth of hard norms. The TMBs have interpreted adolescents' right to privacy as ensuring a right to confidentiality in reproductive health services as well as the right to access services and information without parental consent.

Soft Norms Relating to the Right to be Free from Discrimination

There are no explicit soft norms on the right to be free from discrimination based on age in the context of adolescents' reproductive rights. There are soft norms relating to the age of marriage, which would impact adolescents' ability to access services since in many countries married adolescents are granted access regardless of their age while unmarried adolescents are effectively denied access. This relates closely to soft norms on discrimination based on marital status. In this regard, the TMB's General Recommendations/Comments and Concluding Observations have explicitly condemned discrimination based on marital status in accessing reproductive health services.

HIV/AIDS

The rights of women implicated by HIV/AIDS include: the rights to life, dignity, liberty, and security of the person, freedom from inhuman and degrading treatment, nondiscrimination and equality before the law, the right to health, including reproductive health care and reproductive self‑determination. There are no hard norms in international human rights law that directly address HIV/AIDS directly.

At the same time, a number of human rights bodies have developed soft norms to secure rights that are rendered vulnerable by the HIV/AIDS epidemic. In 1998, the Office of the U.N. High Commissioner for Human Rights and UNAIDS issued "HIV/AIDS and Human Rights: International Guidelines," which provide a roadmap for governments seeking to incorporate human rights protections related to HIV/AIDS into national law. In June 2001, the U.N. General Assembly Special Session (UNGASS) on HIV/AIDS resulted in a Declaration of Commitment on HIV/AIDS that included strong language on the need to integrate the rights of women and girls into the global struggle against HIV/AIDS.

In addition, the TMBs have interpreted existing treaties in the context of HIV/AIDS and reproductive rights, creating new and positive jurisprudence that safeguards women's reproductive rights.

In the national‑level courts, the South African Constitutional Court interpreted the ICESCR Covenant progressively to enforce the right to HIV/AIDS prevention and treatment in a case brought against the government by the Treatment Action Campaign (an HIV/AIDS rights NGO) seeking to compel the government of South Africa to provide Nevirapine to pregnant women and their babies, to prevent the transmission of HIV from mother to child.

Practices with implications for women's reproductive rights in relation to HIV/AIDS are still not fully covered under existing international law, although soft norms have addressed them to some extent. Two of these include: (1) denials of the right to consent to HIV/AIDS testing of pregnant women and (2) the presumption of consent to sex in marriage.

Pregnant Women's Consent to HIV/AIDS Testing

There is a lack of explicit prohibition of mandatory testing of HIV‑positive pregnant women under international law. General international law provisions relating to consent or refusal to consent to medical treatment under the ICCPR (article 15.1) and the ICESCR (article 7) has been applied.

The legal and ethical foundations for HIV testing broadly require respect for the conditions for informed consent, pre‑ and post‑test counseling and confidentiality. But on many occasions in practice, HIV positive pregnant women are subjected to mandatory routine tests, without adequate counseling. These mandatory tests often owe their justification to public health demands to curb transmission of the HIV virus to their offspring.

HIV testing that is conducted without pre‑and post‑test counseling violates a woman's rights to autonomy, dignity, privacy and bodily and psychological integrity. The same degree of consent pre‑ and post‑test counseling and confidentiality applicable to every other person undergoing an HIV test should apply equally to a pregnant woman.

Among the most persuasive "soft norms" are the UNAIDS Guidelines on HIV/AIDS and Human Rights, which call for international human rights norms to be translated into practical observance in the context of HIV/AIDS, point out that programs emphasizing coercive measures directed towards the risk of transmitting HIV to the fetus, such as mandatory pre‑ and post‑natal testing, seldom prevent perinatal transmission of HIV/AIDS, because they overlook. the health needs of women. In its policy statement on HIV testing and counseling, UNAIDS states that pregnant women should not be coerced into testing nor be tested without their consent. But these guidelines do not carry the force of law as would be the case if language prohibiting mandatory HIV testing of pregnant women were included in an existing treaty.

Presumption of Consent to Sex within Marriage

Human rights law should explicitly address the legal and social subordination women face within their families, marriages, communities and societies, especially as these barriers expose women to the risk of HIV infection. International protections for the right of women to autonomy over their sexuality within or outside marriage can be found in the principle of bodily integrity enumerated in the ICCPR, which provides for the right to liberty and security of the person. However, with the challenges provided by HIV/AIDS, it is necessary to institute stronger protections of the rights of women in the family, especially their rights to autonomy over sexuality and reproduction. Some stronger language on women's rights in the context of HIV/AIDS is found in soft norms, including the recent UNAIDS guidelines on HIV/AIDS and human rights. In addition, both the ICPD Program of Action and the Beijing PFA reflect an international consensus recognizing the inalienable nature of sexual rights. Paragraph 96 of the Fourth World Conference on Women Platform for Action states, "The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence." Again, these rights are much more clearly articulated as a matter of progressive interpretation and jurisprudence than as hard norms in themselves.

Child Marriage (Marriage Under Age 18)

None of the global human rights treaties explicitly prohibit child marriage and no treaty prescribes an appropriate minimum age for marriage. The onus of specifying a minimum age at marriage rests with the states' parties to these treaties.

Several treaties prescribe the hard norms we use to assert human rights violations associated with child marriage. They include (but are not limited to): the right to freedom from discrimination; the right to choose a spouse and to enter into marriage with free and full consent; the right to health; and the right to protection from all forms of sexual exploitation and sexual abuse.

We have to rely extensively on soft norms that have evolved from the TMBs and that are contained in conference documents to assert that child marriage is a violation of fundamental human rights.

In the main treaties and conventions relevant to marriage and the rights of women and children, the issue of minimum age at marriage has been dodged by the use of phrases‑such as "full age" and references to full and free consent as the proposed standard for determining the validity of a marriage. Even the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages (1964) does not clearly articulate an appropriate minimum age. Notably, the African Charter on the Rights and Welfare of the Child, does recommend a minimum age of 18 and is the only treaty to do so.

Committees have issued general comments and recommendations emphasizing the problematic aspects of child marriage. Most have issued concluding observations that discourage and condemn child marriage as a human rights violation.

The Beijing PFA echoes most treaty provisions relevant to the issue of child marriage by calling upon governments to enact and strictly enforce laws to ensure that marriage is only entered into with the free and full consent of the intending spouses. It also requires governments to "raise the minimum age where necessary." While thus provision does mark a step forward, it does not take a position on what the minimum age should be.

More Norms vs. Better Enforcement

Because we wish not only to set standards for government behavior, but also to ensure that governments understand that they are bound to those standards, our success depends on some focus on enforcement of international law. Gaps in the substance of human rights instruments are accompanied by weaknesses in mechanisms for enforcing even the most accepted norms. Accountability is rarely achieved even for governments who engage in arbitrary killings and torture. It is even more difficult to ensure the enforcement of economic, social and cultural rights, which, while legally 'binding, offer few measures for compliance. We are particularly sensitive to the practical difficulties of enforcing the Women's Convention, which enumerates a number of rights that are fundamental to enjoyment of reproductive rights. A question arises as to whether promoting the recognition of an expanding body of rights might dilute the still untested gains that we have made in the past 20 years.

Many human rights activists have focused on developing better mechanisms for enforcing existing norms, rather than filling the substantive gaps in binding 'instruments. The campaign for the International Criminal Court is an example of an effort to make highly accepted international legal norms ― the principles of the Geneva Conventions ― more practically enforceable in an international forum.

As a program, we should consider whether we would be better served engaging in the process of enforcing existing norms ― through international litigation, fact-finding, reporting to the treaty monitoring bodies ― rather than developing the substance of international law. (In reality, both of these goals can be pursued simultaneously, but our question here is one of emphasis.) We could also focus on developing new mechanisms for governmental accountability, which could themselves be the basis of a new legal instrument.

Should we decide, however, that we cannot move forward in our work without the development of stronger substantive norms, there are a few strategies we can take. These strategies are not exclusive and each can reinforce the others. However, because we wish to take a more self‑conscious approach to choosing our strategy, we have laid them out in the following section.

How to Fill Normative Gaps

Seeking Authoritative Interpretations of Existing Norms

This approach involves developing a jurisprudence that pushes the general understanding of existing, broadly accepted human rights law to encompass reproductive rights. Such a jurisprudence is developed primarily through:

  • Report to the treaty monitoring bodies;
  • Bring cases to international and regional adjudicative bodies (such as cases we have so far brought before the Inter‑American Commission); and
  • Bring claims based on international law to national‑level courts (such as the recent PMTC cases brought before the South‑African Constitutional court by the local HIV/AIDS Advocacy group, Treatment Action Campaign.

While, given the variety of jurisdictions, the common law concept of "precedent" has little bearing in this context, international jurists are aware of how legal questions have been resolved by their peers in other fora.  Arguments based on the decisions of one body can be brought as persuasive authority to decision‑makers in other bodies,

There are several advantages to relying primarily on interpretations of hard norms. As interpretations of norms acknowledging reproductive rights are repeated in international bodies, the legitimacy of these rights is reinforced. In addition, the gradual nature of this approach ensures that we are never in an "all‑or‑nothing" situation, where we may risk a major setback . Further, it is a strategy that does not require a major, concentrated investment of resources, but rather it can be achieved over time with regular use of staff time and funds. Finally, there is a stealth quality to the work: We are achieving incremental recognition of values without a huge amount of scrutiny from the opposition . These lower profile victories will gradually put us in a strong position to assert a broad consensus around our assertions.

There are also disadvantages to this approach. As decisions are made on an ad hoc basis to apply to a variety of situations, there may be a lack of clarity or uniformity in the decisions. It thus may be harder to point to one position as an "accepted" interpretation. In addition, the incremental nature of this approach escapes the notice of not just our opponents, but also our potential allies. It is very difficult to gain press attention to issues affecting a relatively small group of people or a narrow set of facts. Finally, because we cannot rely on respect for precedent in international and national bodies of overlapping jurisdictions, gains that we achieve may be lost in subsequent decisions. While we have seen an encouraging trend in international jurisprudence, we are forever at risk of losing ground in the same fora.

Working Toward a Customary Norm

The second approach has much in common with the first. It involves a gradual process of seeking repetition of interpretations of existing norms to encompass and protect reproductive rights. Again, we seek affirmation in international adjudicative fora and national‑level courts, as well as at international conferences. The difference in taking this approach is that it would require adopting an overarching strategy for our interventions. We could first develop a wish list of international legal protections that need to be developed, ideally through convening workshops around the world designed to sound out additional gaps in existing international law and reinforce the interest of allies in following a set of strategic priorities. We would then seek every opportunity to get items on our wish‑list incorporated into treaty interpretations and soft norms.

The advantages of such an approach are many. First, it would give focus to our current work, forcing us to establish a set of priorities. Our priorities could be reflected both in our advocacy and in our efforts to shape public opinion. The approach would draw a minimal level of distracting opposition, while increasing our visibility with our allies.

The major disadvantage is that developing a customary norm is a slow process and it is difficult to know when you have accomplished your goal. Very few norms that are currently considered accepted and mainstream can be attributed to recent deliberate campaigns. While the standard for creating a customary norm is open to some scholarly debate, most such norms can be traced to centuries of practice and belief. In addition, although we are talking about undertaking a campaign of sorts, it is a difficult one to explain to non‑lawyers and it is not very sexy.

Seeking Adoption of a New Legal Instrument

Finally, if we determine that the foregoing options are ineffective, we should consider whether the weaknesses in international law can only be remedied with the adoption of a new legal instrument. Such an instrument could be a protocol to an existing treaty (such as the optional protocol to the African Charter on Human and Peoples' Rights or a new protocol to CEDAW) or a free‑standing treaty. A campaign for the adoption of a new international treaty would be an extremely involved, resource‑intensive and long process. It might begin with a campaign for a General Assembly Declaration on Reproductive Rights or another soft norm. Then there would be a process of drafting a treaty, getting broad input from many key players. Again, workshops would have to be held around the world to establish buy‑in. Then there would be a process of, identifying sympathetic delegates in the General Assembly. These efforts would be followed by years of campaigning, with the leadership of a sophisticated media‑savvy team.

There are clearly a number of advantages to this approach. First, it offers the potential for strong, clear and permanent protections of women's reproductive rights. Further, having a campaign with clear objectives could serve as a focal point for advocacy around the world. In addition, the campaign itself could have an educational function with the potential to influence national‑level legislation.

There are also potential disadvantages to consider. Embarking on a campaign for a new legal instrument appears to concede that we do not have legal protections already, making failure potentially costly. Moreover, during the many years it takes to succeed in adopting an instrument, we create the impression that women are "protectionless." Second, the campaign is unlikely to succeed in the near term, and thus might be deemed a waste of limited resources. Finally, depending of the timing of the campaign and the surrounding conditions, it could stir up nasty opposition, which might ultimately set the movement back, at least temporarily..

Conclusion and Further Questions

There are a number of questions that we would need to answer before we decided on a strategy. Some of these questions may be best answered by people outside the organization. These might include Ruth Wedgwood, David Weissbrodt, Oscar Schacter, Donna Sullivan, Ken Roth, Rebecca Cook, Roger Norman, Widney Brown, Anika Rahman, and certainly others. Whatever strategy we pursue, we should continue to research our approach, perhaps by enlisting the assistance of students at a law school clinic.

Here are some questions we would like answered:

  • Are the weaknesses in international norms protecting reproductive rights of a severity that can only be remedied by the adoption of a new legal instrument?
  • Do most governments currently think that they have a duty to uphold reproductive rights? Do they care about interpretations of hard norms and do these interpretations shape their views about their obligations under international law?
  • As a matter of public perception, does pursuing a new instrument ― without any assurance of success ― undermine current claims regarding the existence of reproductive rights?
  • Would it be more strategic, to consider an instrument covering other "gaps" in legal protections for women's rights and include these?
  • How have other movements succeeded at creating norms that governments consider binding?
  • What would be an appropriate timeline for pursuing a new legal instrument?
  • Would we be the group to take the lead on a campaign for a new legal instrument?

Memo #2: Establishing International Reproductive Rights Norms: Theory of Change

Our goal is to ensure that governments worldwide guarantee women's reproductive rights out of an understanding that they are bound to do so. The two principal prerequisites for achieving this goal are: (1) the strengthening of international legal norms protecting reproductive rights; and (2) consistent and effective action on the part of civil society and the international community to enforce these norms. Each of these conditions, in turn, depends upon profound social change at the local, national and international (including regional) levels.

Ultimately, the goal of strengthening international norms and enforcement is to ensure that appropriate legal norms are in place at the national level so as to improve women's health and lives. Working on the above prerequisites can help ensure national‑level normative changes, but these processes are not linear and the adoption of appropriate national‑level norms may happen first and can, in turn, influence and strengthen international standards. Our goal above is reached only when governments in fact guarantee women's reproductive rights, first by adopting appropriate laws and policies, and, second, by adequately implementing them. Thus, a third prerequisite is suggested that reinforces international standards: adoption and implementation of appropriate national‑level norms.

Achieving the above goal does not depend on legal strategies alone. Support for norms and their enforcement may require sustained public awareness‑raising campaigns, media attention, and support from key sectors like the medical community, among others. The role of law in social change is a complex one. But the adoption of good reproductive rights norms at the national, regional and international levels is crucial because it indicates such norm's formal recognition, and provides a firm basis for the government's duties, including its own compliance and its enforcement against third parties. With formal recognition of reproductive rights through law, women's ability to exercise these rights is left to chance.

The remainder of this memo attempts to concretize the Center's theory of how such change can be achieved, with an emphasis on the Center's possible role in this process. This memo serves as an initial concept paper, not a work plan. In some cases, activities identified are already well underway. But, in any case, we recognize that we cannot undertake all the work suggested by the analysis below, but that this provides us with a more concrete starting point for identifying what needs to be done and our appropriate roles.

Strengthening International Legal Norms

Our legal analyses to date are primarily based on interpretations of well‑accepted international norms. There are at least three means of strengthening these norms to ensure greater protection of reproductive rights: broadening authoritative interpretations of existing norms; gradually establishing an international customary norm; and adopting a new legal instrument protecting reproductive rights. (For a more detailed description of these approaches, see Memo #1.)

Regardless of the mechanism, expanding legal protections requires action on multiple fronts. First, there is a process of developing broad international agreement among our allies and potential allies on what the norms should be. Second, steps must be taken to put reproductive rights on the agenda of international normative bodies. Finally, advocates must foster broad support for reproductive rights among governments while countering opposition. The following subsections will address each of these activities in greater detail.

Developing Agreement on Norms

Much of the work of developing agreement on norms protecting reproductive rights has been achieved at United Nations conferences, including the International Conference on Population and Development (1994) and the Fourth World Conference on Women (1995). While documents adopted at these conferences are not themselves legally binding, they are a clear articulation of most of our institutional values, and they have been formally accepted by nearly every government in the world. There are (as noted in Memo #1) a number of gaps in the content of these international agreements, and much work is needed to gather support for the Center's position on how these gaps should be filled. For example, the Center needs to continue its advocacy to ensure that women's ability to choose to terminate a pregnancy is recognized as a human right. Advocacy of this nature can be carried out through various means, including:

  • Public education and awareness‑building, in part through production of advocacy materials and publicity surrounding their release;
  • Bringing reproductive rights into the mainstream of legal academia and the human rights establishment; and
  • Collaboration with NGOs engaged in establishing legal norms at the national level.

Putting Reproductive Rights on the International Agenda

Developing broad agreement on norms protecting reproductive rights does not in itself ensure that they will find their way into international law. Advocates have to look for opportunities ― such as international conferences and meetings of treaty monitoring bodies and other UN human rights bodies ― to put norms relating to reproductive rights on the international agenda. In some cases, the timing of such efforts may depend upon strategic considerations. For example, advocates for reproductive rights opted not to lobby for an official 10‑year review of the International Conference on Population and Development, fearing that negotiations would be hijacked by the right‑wing, which includes the current U.S. Government.

There are several means of putting reproductive rights on the agenda of international normative bodies, including:

  • Identifying allies in government and civil society who can champion reproductive rights;
  • Securing positive interpretations from the treaty monitoring bodies related to reproductive rights, either through the reporting processes or by bringing individual complaints;
  • By seeking action from such UN and regional bodies as the Human Rights Commission and its sub‑Commission and the European, Inter‑American, and African commissions/courts on human rights; and
  • Engaging the media in bringing reproductive rights to the attention of relevant international, regional and national normative bodies, including legislators, other government officials, local and international judicial bodies, as well as medical bodies that can influence law and policy.

Garnering Support Among Governments and Countering Opposition

Ultimately, we must persuade governments to accept reproductive rights as binding norms. Again, our approach can move forward on several fronts, with interventions both at the national and international levels. Governments' recognition of reproductive rights norms may be indicated by their support for progressive language in international conference documents or by their adoption and implementation of appropriate national‑level legislative and policy instruments. In order to counter opposition to an expansion of recognized reproductive rights norms, we have questioned the credibility of such reactionary yet influential international actors as the United States and the Holy See Our activities to garner support for international protections of reproductive rights include:

  • Lobbying government delegations at UN conferences and producing supporting analyses/materials;
  • Fostering alliances with members of civil society who may become influential on their national delegations to the UN; and
  • Preparing briefing papers and factsheets exposing the broad anti‑woman agenda of our opposition.

Enforcing International Protections of Reproductive Rights

For legal protections of reproductive rights to be meaningful, they must be tested through concerted enforcement efforts. Enforcement of human rights norms can be pursued at the national, regional and international levels. Some enforcement strategies, such as the use of the treaty monitoring bodies, also serve the goal of strengthening legal norms, as described above.

Advocates' use of enforcement mechanisms can help cultivate a "culture" of enforcement in which violations of reproductive rights are recognized as such by victims, and complaints are addressed under conditions of impartiality and the rule of law. Specific activities that contribute to enforcing international norms include:

  • Using adjudicative mechanisms at the national, regional and international levels;
  • Documenting, and publicizing reproductive rights violations and recommending appropriate reforms; and
  • Supporting efforts to strengthen existing enforcement mechanisms, such as the campaign for the International Criminal Court and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Adoption and Implementation of Appropriate National‑Level Norms

An important measure of the extent to which a particular government accepts its obligation to respect, protect and fulfill reproductive rights is whether it has adopted and is properly implementing appropriate legislation and policy. This may come about through means other than an international enforcement effort. For example, the national political moment may be ripe for change, with or without the influence of international standards. Such changes in one or more countries, particularly key countries in a region, may have a catalytic effect on neighboring countries or on the solidification of international norms. Moreover, these kinds of changes, whatever the impetus, must be encouraged as they are more likely to have an immediate impact on the health and lives of women previously unable to enjoy reproductive rights.

Similar to activities outlined in #2 above regarding enforcement, possible activities in this area include the following:

  • Providing input to civil society or government actors to change offensive laws or adopt progressive laws where none had existed;
  • Examining the effectiveness of implementation of laws and policies; and
  • Assessing whether courts are adequately enforcing existing legislation.

References

  1. Congressional Record, "Extensions of Remarks Submitted by Congressman Christopher R. Smith (R‑NJ),” December 8, 2003, pages E2535 to E2547.
Last modified on 26 July 2016, at 11:32