Duties to Implement Reproductive Rights

Abstract

This abstract explores the nature of states' duties to respect, protect and fulfill reproductive rights. It outlines the means to hold states accountable at the international level to implement reproductive rights. It analyzes how events-based and standard-based data can be used to show whether states are in compliance with or in violation of their obligations to implement reproductive rights and to determine the effectiveness of remedies. It concludes with a call for greater collaboration among reproductive health professionals and human rights activists to ensure greater protection and promotion of reproductive rights.

Full text

Nortlic JourntLl of International LoL 67:. 1-16, 1998.
O 199t3 Kluvrer Lttw International. Printecl inthe Netherlands
Duties to Implement Reproductive Rights
REBECCA J. COOK
Prolb.ssor oJ Lav,, Fat'ulrrn rl la\ Faculty of Medici.ne ttnd Joint Centre.for Bioethics,
Universin of Toronto, Canada
MAHMOUD F. FATHALLA*
Prufessor of Obstetrics antl Gynecoktgy, Facultl' ttJ Medicine, Assiut Universill" Eg.tpt
Abstract. This abstract explores the nature of states' duties to respect, protect and tulfill
reproductive rights. It outlines the means to hold states accountable at the international level
to implement reproductive rights. It analyzes how events-based and standard-based data can
be usecl to show whether states are in compliance with or in violation of their obligations
to implement reproductive rights and to determine the efl-ectiveness of remedies. Ii concludes
with a call fbr greater collaboration among reproductive health prof'essionals and human rights
activists to ensure greater protection and promotion of reproductive rights.
1. Introduction
Women's health is often compromised not because of lack of medical knowl-
edge, but because of infringements on women's human rights.l The use of hu-
man rights to advance reproductive health and self-determination has gained
momentum through recent United Nations (UN) conf'erences, particularly
the lgg4International Conference on Population and Development, held in
Cairo, and the 1995 Fourth World Conference on Women, held in Beijing.
The Programme of Action adopted by 184 UN Member States in Cairo
(the Cairo Programme)Z recognizes the importance of human rights in protec-
tion and promotion of reproductive health.3 The Cairo Programme strongly
endorses a new strategy for addressing population issues offocusing on meet-
ing the needs of individual women and men, rather than on achieving de-
mographic targets. Key to this new approach is empowering women within
x Also, FACOG (Hon), FRCOG (Hon), Dr. Hon Causa (Uppsala), President. International
Federation of Gynecology and Obstetrics; Senior Advisor, Biomedical and Reproductive
Health Research, The Rockefeller Foundation, New York City.
1Fathalla, M.F., "Women's Health: An Overview", Int'l Journal oJ Gl'necokryt'&
Obstetrics,,16: 105-1 1 8, 1994.
2 Unitecl Nations, Report of the Internctk)nal. ConJerent:e on Populotion and Development,
United Nations, New York, NY, A/Conf. l71l)3, 1994.
3 Ibid. at para. 7.3.

i,.i. ru*,i., o,o.o-nL;":*;:;;;,, human rights, parric-
uiarly those relevant to reproductive health. Building on the world Health
organization's (wHo) definition of health, the cairo programme explains
that reproductive health is:
a state of complete physical, mental and social well-being and is not
merely the absence of disease or infirmity, in all matters relating to the
reproductive system and tc its functions and processes. Reproductive
health therefbre implies th:rt people are able to have a satisfying and safe
sex lif-e and that the-v have the capability to reproduce and the fieedom
to decide if-, when anci how often to do so. Implicit in this rast condition
are the right of men and women to be informed and to have access to
safe, efrective, atlbrdable and acceptable methods of family planning of -
their choice, as weli as other methods of their choice fbr regulation of
f'ertility which are noi against the law, and the right of access to appro-
priate health-care services that will enable women to go saf'ely through
pregnancy and childbirth and provide couples with the best chance of
having a healthy inlant.a
The Declaration ard Platform fbr Action adopted by 187 uN Member Stares
in Beijing (the Beijing Declararion and rhe Beijing Platform respecrively)s
reaffirm the cairc, Prcgrlamme's dellnition of reproductive health,6 but ad-
vance women's wi,iler interests. It makes explicit that:
[t]he human rights iif'women include their right to have control over and
decide fieely and r"esponsibiy on matters related to their sexuality, in-
cluding sexua' and reproductive health. free of coercion, discrimination
and violence" rriqual relationships between women and men in matters of
sexual relatio;r r anri reproduction, including full respect fbr the integrity
of the person. e,quire mutual respect, consent and shared responsibility
fcrr sexual bel .rvit-mr and its consequences.T v
The Beijing Platlbr r: expiains that "reproductive rights embrace certain hu-
man rights that are ireacly recognized in national laws, international human
rights documents an(i ;ther consensus documents".s The content and meaning
of national and inter ,riional human rights law has yet to be sufficiently de-
tailed in its applicatic', iL) reproductive health matters. The Cairo Programme
a lbid. ,t para.7.2.
5 Unitecl Nations, Reytr. tti the Rrurth Worltl Conference on Wtnren, United Nations, Neia'
York, NY, A/Conf. 177 l2O. ) )')5 "
6 Beling para. 9ul.
7 Beiiing para. 96.
8 Bei.ling para. 95, see also para.223.

DUI'IES TO IMPLEMH,NT REPRODUCTIVE RICHTS 3
and the Beijing Platform are points of advancement in identifying particular
steps that countries have agreed to take to achieve reproductive rights within
specilied time periods.e
The Cairo and Beijing documents lack mechanisms to hokl governments
legally accountable, but mechanisms fbr this purpose generaliy exist in na-
tional constitutions and international and regional human rights trezrties. Na-
tional constitutions and regionai and international human rights treaties estab-
lish general legal obligations that can be applied to the quest for reproductive
health lnd sel l-determinalion.
This article explores the nature of states' duties to impiement reproduc-
tive rights and their means of accountability, and suggests the kinds of data
needed lbr enforcement and fbrmulation o1'efl-ective remedies. It ends with a
call to reproductive health and human r:rghts activists to collaborate to ensure
implementation of reproductive rights.
2. States' Duties to lmplement Reproductive Rights
A useful framework has been developed under intcrnational human rights;
conventionsl0 that obliges states that have committed thernselves to obser-
vance of such conventions to undertake threc kinds of cluties. These are to
respect rights by not violating them, to protect rights by taking positive action
against third party violators, and to fullil rights by employing the authority of
the instruments of state to atford individuals the full benefit of human rights.
The duties aflect human rights to reproductive health and self-determination
in a variety of wayrs.
2.1. The DuQ to Respect Rights
The duty to respect human rights to the protection and promotion of individ-
ual health and self-determination obliges states and those they emptroy to be
guarded when taking action that may restrict women's alltonomous choices
regarding health care. For instance, it is widely recognized that lawfully rnar-
ried couples must not be impaired in their decisions to conceive ancl bear
the children they want, even when such children are likely to be disabled or
reared in deprivation. Women's rights to bear children are paralieled by their
rights to plan the number and spacing of their pregnancies so as t() optimize
therr health and that of their dependent children and tarnilies.
9 Cook. R.J. and Fathalla, M.F'." 'Aclvancing Reproductive rights Beyond Cairo and
Beijing". Int'l Ftnnib' Planning Perspectives.22:115 121. 1997.
10 The Maastr.ict Guiclelines on Violations of Econornic. Social and Cultural Rights, Hrlrarr
Rights Qltdt'tc r/.r', firrthcoming I 9911.

,1 q.J. cooK ANr) M.r.-. I-ATHALLA
women's regulation of their reproductive capacities raises frequently coir-
tentious issues of contraception, sterilization and abortion. Human conception
and birth have long been considered in many religious traditions to be a divine
mystery and gifi that it is immoral for human agency to invade, reject or
arrogate. Laws restricting contraception, sterilization and abortion are ofien
explained and def'ended on moral grounds. However, courts have a tradition
olholding that protection of health interests prevails over laws that seek to en-
force moral imperatives. For instance, the European court of Human Rights,
established under the European convention of Human Rights and Fundamcn_
tal Freedoms (the European convention), held that compulsory sex education
"conveyed in an objective, critical ancl pluralistic manner', did not violate the
rights of parents to ensure education of their children in conformity with their -
religious beliefi.l I More recently, the same Court required the Republic of
Ireland to accommodate the provision of infbrmation on access to therapeutic
abortion services available in nearby countries.l2
State action becomes suspect when it obstructs individuals, use of their
own means to satisfy their health goals, and when it intrudes on individuals,
privacy. For instance, states cannot restrict women seeking health services,
or clinics fiom delivering them, because women do not have authori zation
of their husbands.13 The committee on the Elimination of Discrimination
Against women (cEDAw), which is the body set up by the convention on the
Elimination of All Forms of Discrimination Against women (the women's
convention) to monitor member states' compliance has issued General Rec-
ommendation 21 on Equality in Marriage and Family Relations. This specif_
ically states that "Decisions to have children or not, while pref'erably made
in consultation with spouse or partner, must nevertheless not be limited bv
spouse, parent, partner or Government".l4
States and their officers violate women's human rights to physical security
and integrity by conducting virginity tests on cletainees, chargecl, for insrance:, v
with political or criminal off-enses, l5 or as a conclition of eligibility for admis_
sion to hospital, educational opportunities or government employment. l6 It is
a similar violation to condition a wife's or daughter's visit to a prisoner on
11 yisldsen., Busk Marj.ren ancl pedersen y. Denm.ark.l Eur. H
Sex Education casel. R. Rep. 711 (1976) [Danish
1.1 Op"u Doorand DublinWettWonteny. Irelttncl,lzl Eur. H. R. Rep. l3l (1992).
13 Pot,,, v. united Ki.nsdom,3 Eur. H. R. Rep. 40g ( l9g0).
l4 ceneral Recommenclation 2l:Equality in Marriage and Family Relations, United Na-
tions, Compil.atktn rtf General Commen.t.t ond Generul Ret'omntentlutions Atlqtletl bt. Htmran
Rights Trear,- Bodies, HRI/Gen/1/Rev.2, 29 March 1996 at l2l.
15 Humo, Rights watch women Rights project, The Human Rights watch Global Report
on lMomen's Human Rights, New york: Human Rights Watch, 11g, 1995.
I6 1,1.

DUI'IES TO IMPLEMENT REPRODUCTIVE RIGHTS 5
vaginal inspections to prevent the smuggling of contraband.lT Other means
should be available fbr this pulpose, and any necessary bodily inspections
should be conducted by offlcers of the same sex. Human rights to privacy are
also ofTended by governmental misuse of individuals' identillable health in-
formation, for instance on pregnancy, termination of pregnancy and sexually
transmitted diseases, including HIV/AIDS.
States do not violate human rights through action that is required or jus-
tifiable in good faith to preserve individuals' human rights. State action for
instance to prohibit parents and others from engaging in f'emale genital mu-
tilation (FGM) legitimately priorizes children's rights over any that parents
may claim. Laws setting a legal minimum age of marriage, designed to save
young women from the heaith risks of premature childbearing, postpone ex-
ercise of the right to marry, but respect women's transcending rights to the
protection and promotion of health and survival. However, the burden falls
on those employing state authority, whether through legislation, executive
action or judicial action, to ensure confbrmity of their action with human
rights obligations, concerning women's health and other interests.
2.2. The Duty to Prutect Rigltts
The duty binding states to protect rights relating to women's reproductive
and other health requires their agencies and offlcers to take action to prevent
violations of rights committed by private persons and organizations. This is
an area of growing concern to human rights tribunals, at both domestic and
international levels, as states downsize governmental bureaucracies by giving
over state functions to private agencies. Private individuals and institutions
as such are not bound by international law, except in very extreme circum-
stances such as of war crimes and crimes against humanity. Thus, they are
not internationally accountable for their conduct in breach of international
human rights conventions. However, states and their governments are legally
bound under such conventions "to organize the governmental apparatus and,
in general, all the structures through which public power is exercised so that
they are capable of juridically ensuring the fiee and full enjoyment of human
rights". l8
States cannot evade their human rights obligations by delegating powers to
private sector agencies, or by invoking provisions of their own constitrrtions
or laws that limit states' powers of intervention fbr protection of interna-
tionally recognized human rights. States whose governments leave private
1l Xurul Yv.Argentinu,lgg6Annual Reportofthelnter-AmericanCommissiononHuman
Rights.
18 Vnlr,rr1u"7, RotlriqueT.Casc (Honduras), 4 Inter-Amer. Ct. H. R. (ser. C) at92, at para. 166
( r 9r38).

R.J. COOK AND M.F" FATHAI,I-A
violations of human rights unremedied or unaddressed are in breach of their
own duty under international law to protect human rights.
For example, in a case involving the rape of a me,tally impaired woman,
the government of the Netherlands denied liability fbr her conseqlrent physi-
cal and mental distress. The European court of Human Rights helcl, however,
that the state had "a degree of responsibility" fbr these impairments to her
health, which the wHo describes as "a state of . . . physical, mental and so-
cial well-being".'' Liability arose because no means were provided fbr the
assailant to be prosecuted or for the victim to be compensated for injury to her
health. The court held that the state was required to take positive measures
concerning events that occurred between private individuals where human
rights had been violated. The state had failed in its legal duty to maximize
protection of human rights through sanctions against indiviclual violators and
deterence of potential violators.
States have been considered to have positive duties to provide protec-
tion not only against deliberate killings committed by individuals, such as
terrorists,20 but also against unintentional injury and death. The European
Commission of Human Rights has considered the issue regarding a complaint
that a governmental vaccination program had resulted in damage and death
to babies.2l In this case, it was fbund that appropriate ancl aclequate measures
to protect lit-e had been taken. Had it been found that such measures had not
been taken, the state would have been fbund in breach of its human rights
duty to safeguard health and lif-e. Data on persistently high levels of maternal
mortality and morbidity pur states on notice that they may be in breach of their
human rights obligations to protect women's lives and health. States have clu-
ties to take appropriate and adequate measures protective of women's health,
fbr instance by ensuring women's access to trained birth attendants and to
means to regulate pregnancies that come too early, too late, too fiequently
and too closely spaced in their reproductive lives.
The protective duty of states to restrain third parties' violations of
women's rights to protect and promote their own health and that of their
children who depend on them may require state action that may be intetpreted
as an element either of its protective duty or of its duty to fullil rights. For
example, where a private health care facility discriminates against women il
its allocation of health benellts on the basis for instance of sex, age or maritai
status, govemmental corrective action may be explained as protecting women
against the human rights ofl'ence of discrimination, or as meeting the state's
duty to fullil human rights by ensuring women's f'air access to health services.
t9 Y arrl Y v. rhe Nethet'lunds, 9l Eur. Ct. H. R. (ser. A.) (198-5).
20 W. u. lrelancl, Application no. 9360/81 .
21 X r. Llnitrd Kingclont, Application No. 7154.

DUTIES TO IMPLEMtrNT REPRODUCTIVL, RIGHTS
2.3. The Dutt'to l'ulfil Rights
The duty to fulfil rights requires states to take appropriate legislative, adminis-
trative, judicial, budgetary, economic and other measures to achieve women's
full realization of their human rights. Thus, governmental tailure to address
the magnitude of women's ill-health, particularly preventable conditions,
places the state in breach of its duty. The work of WHO on identifying repro-
ductive ill-health, such as producing studies estimating that nearly 600,000
women each year die from pregnancy-related compiications, showing that
the 120 million couples would like to limit their family size but do not use
any fbrm of contraception, and, fbr instance, that 85-l l0 million women and
girls are subject to female genital mutilation,22 provides particulary important
means to place governments on notice of the possible breaches of their duties
with regard to women's reproductive health.
Similarly, the Cairo and Beijing Conferences overcame the opposition of
states and religions resistant to women's self-determination and proposed
measures to advance woman's reproductive health. For instance, the Bei-
jing Platform requires states to consider "reviewing laws containing punitive
measures against women who have undergone illegal abortions".2l Women
often have resort to illegal abortion when their legitimate entitlement to legal
abortion is frustrated by states' failures to provide facilities. The UN Speciai
Rapporteur on Violence Against Women has reported the one year sentence
of imprisonment imposed in 1995 on a woman in Nepal fbr having an abor-
tion, and evidence that more than half of the maternal deaths in the country's
capitol city result from abortion-related complications.2a A national proposal
fbr new legislation to replace the country's restrictive abortion law would
subject mamied women's treatment to their husbands' consent and unmarried
women's treatment to consent of their parents.2s Both of these provisions
violate the Women's Convention, which Nepal has ratified.
The duties of states to employ "all the structures through which public
power is exercised"26 to meet their responsibilities to protect women's repro-
ductive rights permit them to conscript private health care practitioners for
this purpose. Where governments license health care practitioners, whether
directly or by delegation to self-regulating professional licensing authorities,
they may make it a condition of licensure that practitioners perform a portion
of their licensed services under direction of the state, such as by serving fbr
22 World Health Organization, Sexual and Reprocluctive Health Research Priorities fbr'
WHO for the Period 1998-2003, HRP/PCC(10)11991 19,30 May 1997 at 4 5.
23 Beling para. 106(k).
2a U.N. Doc. E/CN.4/I 99'7 l47lAdd.4,30 January 1997 at para. 5.
2s rd.
26 Supro note 18, velasquez.

R.J. COOK AND M.F. FATHALLA
limited times in public hospitals or women's health care clinics.2T states are
accountable to promote fulfilment of human rights, tbr instance by ensuring
that due diligence is exercised in the public inrerest not only by public hos-
pitals and clinics, but also by authorities that license private health facilities
and practitioners.28
Discharge of the duty to fulfll women's human rights to reproductive
health care sometimes requires states to balance competing human rights or
to Iind a basis of maximum accommodation of the human rights of individ-
uals that may be in conflict with women's reproductive rights. For instance,
respect for individuals' religious convictions compels states to allow consci-
entious objection to participate in such procedures as artificial contraception
and abortion, but human rights of women require that reasonable provision be
made for their access to such services. where local health services are avail-
able only through private facilities or corporarions affiliated with a religious
order opposed to delivering such services, for instance, states may be obliged
to ensure their engagement and facilitation of practitioners who do not object
to delivery of such care, or that services be available to women through a
public clinic or another affangement that adequately respects the individual
consciences of all local residents.
A legal basis of balance of rights is to ensure women's access to care
and individual practitioners' rights of conscience, but to recognize that insti-
tutions such as hospitals and clinics, being artificial legal persons and non-
human agencies, have no human right of religious conviction or conscience.
They cannot limit employed personnel to those who adhere to a single re-
ligious faith by discriminatory employment practices, since such practices
violate intemational human rights to nondiscrimination in employment on
grounds of religion or conscience.
3. International Enforcement of Reproductive Rights
3.1. Means of Accountability
Governments may propose to establish their respect for women's rights to
reproductive health care through policies advocated by their political insti-
tutions that satisfy their independent national judiciaries that legal standards
tbr compliance are being met. Experience demonstrates, however, that there
must be international scrutiny of countries' observance of their commitments
under international human rights law. Governmental action claimed to dis-
charge duties to observe women's internationally protected human rights are
27 Vun der Mtrssele v. Belgiunt,series A, No. 76 (19U3).
28 Guddi v. Italy, Series A, No. 2l (1984); 6 E.H.R.R.457 (1984).

DUTIE,S TO IMPLEMENT REPRODUCTIVE RIGHTS 9
not within the exclusive iurisdiction over domestic matters that states claim
as a legitimate aspect of their sovereignty and independence.
The major achievement of intemational human rights law in the past half-
century, reacting to how outrageously innumerable German nationals were
treated by their own state before 1945, is to demonstrate that nation states
are not liee to treat their own citizens and residents in any way they wish,
without accountability to the international community. This principle justi{ied
international concern with human rights abuses of South Afiican nationals
under apartheid, and remains a justification today for concern about the way
in which many states treat women nationals.2e Individuals' human rights are
of intemational and not exclusively domestic concern. Since governments are
nationally and internationally accountable for their observance of the human
rights of individuals anrl groups, attention is necessary to the mechanisms to
hold governments to account, to require responses to alleged violations, and
to remedy violations.
The special challenge of protecting women's rights, to reproductive health
care and the pursuit of many other interests, is that subordination of women's
autonomy and role as decision-makers in their own lives is oflen invisible
in the societies and cultures in which they live. Domestic laws often deny
women choice of action in ways that social, religitlus and other institutions
def-end. women's subordination to the wishes of politically, socially, reli-
giously and otherwise powerful institutions, almost invariably led by men and
fiequently excluding women, is seen not just as a feature of many societies,
but as a condition of their functioning, stability and virtue.
The international legal order is clearly impert'ect in its capacity for scrutiny
and compulsion to hold governments strictly to account fbr their records on
protection of women's rights to reproductive health care and relaled interests.
The challenge must be faced of improving accountability mechanisms at do-
mestic and international levels, by political, legal and other means. The Cairo
Programme of Action was aware of prevailing inadequacies in international
accountability fbr reproductive and sexual health. The Programme makes
clear that movement beyond Cairo depends on momentum generated through
the international human rights regimes. Development for this purpose can be
driven in part by existing national human rights institutions and international
treaty systems.
For instance, through the Women's Cr.rnvention, 1-57 states have commit-
ted themselv es to report regularly to CEDAW. States must report periodically
on what they have done to:
29 Cook. R.J., "The Elimination of Sexual Apartheicl: Prospects fbr the Foulth World Con-
f-erence on Women", lssues Papels on Worlcl cont-erences, No. 5' Washington. D-C.: Atnerican
Society of International Law, 1995.

10 R..r, cooK AND M.F. FAfHALLA
take all appropriate measures to eliminate discrimination against women
in the field of health care in order to ensure . . . access to health care ser-
vices, including those related to family planning . . . pregnancy, confine-
ment and the post-natal period, granting fiee services where necessary,
as well as adequate nutrition during pregnancy and lactation30;
and to ensure women's
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.3l
Countries that have ratified other human rights conventions accept similar
obligations to account to monitoring committees for the extent to which
they have complied with their obligations. procedures exist under some
conventions, such as the European Convention on Human Rights and the
International Covenant on civil and Political Rights, that enable private
persons fiom consenting states to bring individual comploint,s against their
states for violations. Accommodation of such individual petitions is currently
under consideration for the women's convention. A normal condition of
international tribunals receiving individuals' petitions, however. is that such
individuals have exhausted all reasonable possibilities of achieving remedies
befbre national tribunals of the state against which the petition is presented.
Enforcement of treaty obligations depends primarily on state action
against others claimed to be in breach, but monitoring committees, like
cEDAw are mandated to be vigilant in their scrutiny of states' reports
regarding evidence of defaults on their responsibilities. For this purpose,
cEDAw receives alternative reports or comments on state performance sub-
mitted by national and international nongovernmental organizations, which
may incorporate significant findings of failures to protect and promote repro-
ductive health. Such findings may result liom medical or, fbr instance, social
science research. For example, high rates of wif'e beating disclosed in studies
can be used to put governments on notice of private violations that states need
to prevent or remeily.32
To assist countries in their reporting obligations, cEDAw for instance has
developed a series of General Recommendcttions.33 These Recommendations
3o Wom.r's Convention, Article 12.
3l Article l6(e).
32 Jejeebhoy, S.J. and cook, R.J.. "State Accounrabiliry fbr wife-Beating: The Indian
Challenge", The Luncet,349 supplemenr, SIl0-SIl2, 1997.
33 unitecl Nations, International Human Rights Instruments, compilution of. Generril
Comnents and Generul Recomrnendutions Adopted bt Human Rights Treafi Boclies.
HRI/Gen/l/Rev.2. 29 March 1996

DUTIES TO TMPLEMENT REPRODI.JCTIVIJ RIGHTS 1 I
develop the content and meaning of human rights relating to women, and
are somewhat akin to regulations developed by administrative agencies under
national statute law. Several interesting symposia have begun to focus on the
factors that might be considered in developing a General Recommendation
on women's rights to reproductive and relatecl areas of health.3a
An increasingly important process fbr developing state accountability fbr
observance of human rights is the publicati on of Concluding Observations by
treaty monitoring bodies on reports submitted by states. For example in 1996,
the Human Rights Committee, established by the International Covenant on
Civil and Political Rights to monitor state compliance with the Covenant.
addressed the criminal abortion law of Peru. ln its Concluding Observations,
the Committee expressed its concern "that abortion gives rise to a criminal
penalty even if a woman is pregnant as a result of rape and that clandestine
abortions are the main cause of maternal mortality".3s The Comrnittee fbund
that the criminal law subjected women to inhumane treatment contrary to
Article 7 of the Covenant. Moreover, the Committee explained that this as-
pect of the criminal law, which deters qualified physicians from undertaking
therapeutically indicated abortions and requires women entitled to lawful care
to go to clandestine providers, was possibly incompatible with Article 3, on
equal entitlement of men and women to the enjoyment of the rights set forth
in the Covenant, including Article 6 which protects the right to life.
The Committee recommended "that the necessary legal measures should
be taken to ensure compliance with the obligations to respect and guarantee
the rights recognized in the Covenant" and that "the provisions of the Civil
and Penal Codes [of Peru] should be revised in the light of the obligations
laid down in the Covenant", particularly Article 3 requiring that countries
ensure respect of women's rights under the Covenant.36 As a result, Peru is
responsible at least to require the medical prof'ession to facilitate women's ac-
cess to saf'e abortion and related health services as the law permits. Moreover,
since prevailing law, which strictly penalizes abortion, was shown to result in
inhumane treatment of women and undue maternal mortality, Peru is obliged
34 Cn*r11on*ealth Medical Association, A Wmen's Right to Health, In<'LLuling Se-rual antl
Reproductiye Heulth, Commonwealth Medical Association, London (1996): United Nations
Division fbl the Advancement of Women, United Nations Population Fund and United Nations
Centre fbr Human Rights, Roundtable of Human Rights Treaty Bodies on Human Rights
Approaches to Women's Health. with a Focus on reproductive and Sexual Health and Rights,
Glen Cove, New York, 8-l I December 1996, forthcoming UNFPA, New York: Symposium
on Sexual Rights as Human Rights, Abo Akademi University, Turko/Abo. Finland, 14-15
February 1997, papers published in this issue of the Nordic Jotrrnal o.f lnternational Luw.
35 United Nations. Concluding Observations of the Human Rights Committee, ll118/96,
CCPR/C/79lAdd.72, para. I 5.
36 I,l. ot para.22.

12 R.J. cooK AND M.F. IATHALLA
to consider law refbrm so that the raw encourages compliance with human
rights standards for women's health and dignity. A ,"* nationar policy woul<l
have to be expressed in new raw that more adequately balances rimitations on
abortion with women's rights to saf'e and humane u.."r, fbr preservation of
lif'e and health.
The uN Special Rapporteur on Molence Against women, Radhika
Coomaraswamy, receives c'Ltmnrunicuti,rt,; about alleged inciclents or gender
specific violence against women that have not been efrectively adcrressed
through national legar systems. She enters into trialogue with govemments
about investigating the merits of alleged viorations *ith u view to reaching
resolutions.3T she reports annually toine ux Commission on Human Rights
on causes and consequences of viorence against women, including violence *
against girl children that implicates their reproductive rights.3li
3.2. Violatiorts
violations of rights consist in failures to observe legaily binding cluties,
rvhether due to deliberate refusal of observance, to unawareness of breach
associated with lack of relevant information or, fbr instance, to oversight or
interpretative blindness to the implications of available clata. The origin of
each violation is relevant to its appropriate remecly. The findings of medical,
community health and, fbr instance, social science research i-ray crraw crut
violations of rights disclosed by data, and may arternatively incricate interpre-
tations that show states' conformity with human rights standards oi.protection
of women's health.
violations of human rights have been divided into three categories,3e
which may be illustrated by reference to rights relating to reproductive health:
- Cate-eory I violations result fiom direct action on the part of a state, such
as coercive sterilization and abortion;
- Category 2 violations relate to a state's failure to meet the mininrLrm core v.
obligations of human rights protection, such as by refrsing or neglectin-e
action shown capable of reducing maternal mortality ratei; ancl
- category 3 violations relate to patterns of discrimination. such as
persistent and gross discrepancies in access to health services that cumu-
latively disadvantage the health of groups, such as unmarriecl acrolescent
girls.
violations in each of these categories can be established by arguments of prin-
ciple, such as against states' maintenance of strictly prot iHtir" abortion laws
37 UN Doc. E1CN.1/19gil47lAdd.1,30 Januarv 1997.
38 See, lcrr example. UN Doc ElC.N.1/19g6153, 5 F.b.ro.y 1996 at2l.
'39 chap,.,ror. A., 'A 'violations Approach' fbr Monituring the International covenant .r.r
Econorric, Social and cultural Rights", Humtm Rights euttrrerlr., 1g:23-.66. r996.

DUTIES TO IMPLL,MENT RL,PRODUCTIVE RIGHTS I3
that are shown to cause inhumane treatment and deaths of women. but also
empirically by evidence fiom research in medicine, community health and,
for instance, the social sciences. Research can indicate, fbr example, the coer-
cive conditioning of women's apparently voluntary requests for sterilization,
such as when poor women can obtain employment only in toxic workplaces
fiom which f'ertile women are bared under alleged fetal protection policies.a0
Similarly, such research can show actions capable of reducing inf'ertility or
maternal mortality rates that states are required to take, and expose pattems
of discrimination that women sufl'er on the ground of sex or gender.
3.3. Eviclence.fbr Enforcement
conscientious governments concerned to discharge their human rights oblig-
ations concerning reproductive health may sponsor research in order to learn
of the duties they have met and of the goals they have yet to achieve. Re-
search may be undertaken either within government departments or through
independent agencies such as universities or nongovernmental or other orga-
nizations. Experience shows, however, that when evidence of governmental
failure to discharge duties is produced outside governmental sponsorship,
governments approach it with caution, scepticism and not uncommonly
hostility.
Human rights organizations can come to be regarded, particularly by
governments not accustomed to democratically elected opponents and non-
governmental organizations committed to diff'erent but not necessarily hostile
visions of proper government, as anti-governmental. Reciprocally, claims
supported only by governmentally sponsored evidence that reproductive
rights entitlements have been satisfied will often be approached in much the
same sceptical way by activists outside government who are committed to
respect for reproductive rights. Different attitudes and conclusions are ofien
the raw material of conflict. Competition to achieve credibility in assessments
made by disinterested international agencies and tribunals is often resolved by
the scientific calibre of the evidence that competing parties present.
The quality of evidence is of particular significance when it is proposed to
be presented before international judicial or other fact-finding bodies whose
decisions have legal and wider consequences. The conditions under which
expert testimony and documents will be admitted differ among tribunals.
Proceedings may fbllow, fbr instance, an adversarial model, in which advo-
cates before reactive tribunals present opposing arguments supported by their
witnesses and evidence, or an inquisitorial model, in which tribunal members
1o Intemtrtional union, lJnitetl Auto workers v. Joh.nson cr.tntrol, Inc., lll s. ct. l196
(1991);199 U.S. 187 (1991).

14 R.J. cooK AND M.F. F-ATHALLA
themselves are mandated proactively to conduct questioning to reach a deter-
mination of truth from witnesses and evidence produced on their request,
as well as fiom witnesses and evidence they consider relevant offered by
interested parties.
when international treaty monitoring committees, such as cEDAW re-
ceive evidence from nongovernmental organizations, such as national med-
ical associations and women's rights organizations, that contradicts claims
in governmental reports, governmental resources may be applied to question
its credibility. Those who provide evidence for presentation befbre any such
tribunal or committee must anticipate its rigorous, sceptical scrutiny, and
prepare their lindings accordingly.
A distinction in fact gathering fbr human rights purposes is sometimes <
drawn between events-based data and standards-based data.al Events-based
data record individual violations of human rights, such as a woman's fbrced
abortion or sterilization, whereas standards-based data can show state com-
pliance with, or violation of, specific rights, such as by persistently Iow or
high rates of maternal morbidity and mortality. Meticulously documentecl
events-based data may show that abuses of women's human rights are not
merely individual private incidents, for which states may not be accountable,
or individual aberations, lbr which states may propose excuses, but system-
atic practices perhaps reflecting public policies of abusive action or abusive
inaction in the face of known breaches of rights to reproductive health care,
for which states are accountable. Carefully documented cases may direct
attention beyond their specific facts to underlying conclitions of abuse of
reproductive rights, such as led to identification of human rights violations
against women due to Peru's restrictive abortion law.
Standards-based data are commonly used in international human rights
monitoring, where states' obligations to maintain necessary programs at
an adequate level, fbr instance, concerning protection of reprocluctive and
general health, are a focus of scrutiny. Data of program perfbrmance ar. -
interpretable by ref'erence to international and other recognized standards.a2
Disaggregation ofdata by sex is usually essential to prove the absence orpres-
ence of discrimination against women and, for instance, concerning inf-ant
mortality, against girl children. Systematic discrimination for which states
bear international legal liability can also be shown by data regarding male ancl
female employment in public and private facilities that ofl'er health services,
since in many cultures neither women nor men will seek services necessary
to their reproductive health from members of the other sex.
4l Jabir., T.B. and Claude, R.P. (eds.), HLurr.an Rights uncl Sttttistics; Getting the Recttrrl
Straight, University of Pennsylvania Press. Philadclphia ( I 992).
12 Id. at l2-13.

DUTIES TO IMPLEMENT REPRODUCTIVE RIGHTS I5
Strategies to end the marginalization of women's human rights are begin-
ning to emerge,43 and significant understanding of the theoretical, structural
and organizational aspects of rights relating to women's health is evolving.aa
Nonetheless, profound and pervasive violations of rights relating to women's
reproductive health persist, and methodologies fbr investigation and docu-
mentation of such violations are inadequate. Understanding the causes and
the consequences from women's perspectives of such violations is essen-
tial fbr devising etl'ective remedies. The use of WHO standards-based data,
whether health status data or health service data, is one such approach. Other
approaches are needed. For example, the use of social science research find-
ings is essential to understanding the social causes of women's reproductive
ill-health, and thus the structural nature of violations of rights relating to
reproductive health and self-determination.
3.4. Eftbctiveness of Rentedies
It is universally recognized that legal rights without remedies are no rights
at all, and that the duty of legal systems is to ensure that remedies are
practically accessible, justly administered and eflective to affbrd rights their
full substance. The purpose of remedies and sanctions for breaches of re-
productive rights, particularly at the international level, is not primarily that
offenders suffer sanctions, but that violations of such rights will be prevented
or detered.
With greater understanding, fbr instance, of causes of violations of adoles-
cents' reproductive rights, legal systems will be better equipped to ensure the
effectiveness of remedies. For example, research into high rates of adolescent
pregnancy can show how efl'ective remedies may be fbrmulated. A study in
the US state of Washington showed that two-thirds of a sample of 535 young
women became pregnant due to sexual abuse by older men.as These findings
can be used to require governments to address the problem of sexual abuse
of adolescent girls, in addition to providing contraceptive services. That is,
the research demonstrates that many pregnancies were due not to any failure
of the girls, remedial for instance by sex education in the schools, but to
failures to protect them against abuse, remediable by vigorous prosecution
and punishment of men, perhaps in positions of social authority, who abuse
them.
43 Gallagher. A., "Ending Marginrlization: Strategies fbr Incorporating Women into the
Untied Nations Human Rights System", Huntun Rights Quarter1.r,, l9:283 331 , 1991 .
44 S.., generally, the symposium eclition on women's health and human rights etlited by
Sophia Gruskin. Health and Human Righrs 1:4 (1995).
45 Boyer, D. and Fine, D., "sexual Abuse as a Factol in Adolescent Pregnancy and Chilcl
Maltreatment", Family Pktnning Perspectives 24:4-l l, 1992.

l6 R.J. COOK AND M.F] F-ATHALLA
4. The Need for Collaboration
Until recently, lawyers engaged to present opinions to government, arguments
to courts and legislative language to serve purposes of politicians had little
understanding of the impact of their work on the reproductive health of those
affected by the law. Similarly, reproductive health care providers recognized
their duty to act only within the law, but considered the law a blinti and blunt
instrument that they were powerless to change. There is growing recogni-
tion, however, that lawyers armed with infbrmation on harmfur eII-ects of
prevailing laws and estimates of benellts from reformed laws can render the
law in a form that advances reproductive health to the satisfaction of many
conscientious interests in their societies and countries. Equally, health care r
providers are coming to recognize that experiences of their claily practice can
be a source of credit or blame of the fbrces in their societies that exercise the
power to declare, interpret and reform the law.
collaboration between lawyers, enlightened about reproductive health
matters, and health care providers, enlightened about the origins, processes
and malleability of the law, can ofl'er the prospect of beneficial change of
laws that compromise or obstruct reproductive health. working together, they
can explain to legislatures, courts and regulators, the difl'erent efl'ects of ways
in which the law might be developed and undersrood. They can also identify
procedures by which agencies responsible lbr the condition of reproductive
health law can be made legally answerable fbr its harmful effects, and by
which governmental administrations can receive due credit tbr confbrmity
with human rights standards applicable to reproductive health. That is, they
can point tcl legal consequences, often with political implications, of the state
in which a country's law serves or disserves residents' reproductive health
and self-determination.
The direct goal of collaboration is advancement of reproductive health
and self-determination, not the attraction of international blame, or praise, fbr y'
the manner in which state agencies administer laws relevant to reproductive
health. However, where states are conscious of their international standing
concerning respect fbr human rights, the prospect of international humilia-
tion fbr disregard of evidence of how their laws and administration cause
injury to nationals' reproductive health may serve to focus governmental ancl
political attention to law reform. Such refbrm can be guided through legal
and reproductive health advocates working in collaboration.