Human Rights Brief
A Legal Resource for the International Human Rights CommunityFall 1994
POINT/COUNTERPOINT
Point/Counterpoint is a regular feature of The Human Rights Brief. The purpose of the section is to encourage meaningful, intellectual discussion on contemporary issues in human rights and humanitarian law through the presentation of two diverse, though not necessarily opposing, opinions on the subject at hand. Commentaries for the Point/Counterpoint section are generally solicited by The Brief, however, the Board of Editors welcomes all submissions, comments, and suggestions. The newsletter does not facilitate the exchange of the authors’ compositions prior to publication. The views expressed in the Point/Counterpoint section are those of the authors and do not necessarily reflect those of The Human Rights Brief, the Center for Human Rights and Humanitarian Law, or their Directors or staff.
One of the more controversial aspects of the debate over women's human rights is the question of who defines the substance of these rights. The International Conference on Population and Development, held in Cairo from September 5-13, 1994, focused the world's attention on the issue of promoting women's equality by expanding the reproductive choices available to women. While many population experts and women's groups in the West viewed the Programme of Action adopted by participant States as a major victory for women's rights, many in the developing world objected to what they considered a Eurocentric model of women's rights.
The following articles present opposing viewpoints as to the definition of women's human rights.
Point: The Legal Approach: Women's Rights as Human Rights
Rachael N. Pine is Director of International Programs and Domestic Legal Projects at The
Center for Reproductive Law and Policy. In her previous work with the Reproductive Freedom
Project of the American Civil Liberties Union, she was Counsel of Record in the United States
Supreme Court case of Rust v. Sullivan, which challenged the U.S. Department of Health
and Human Services policy of restricting information about abortion in federally-funded family
planning clinics. Her article is adapted from a larger piece, written before the Cairo Conference,
which originally appeared in the Fall 1994 issue of Harvard International Review.
Counterpoint: Who Defines Women's Rights? A Third World Woman's Response
Azizah al-Hibri is Associate Professor of Law at the University of Richmond, where she
teaches International Law, Islamic Jurisprudence, and Family Law among other subjects. She has
authored many works in the fields of law, philosophy, feminist theory, and human rights. Her
essay was written especially for The Human Rights Brief.
The Legal Approach: Women's Rights as Human Rights
by Rachel N. Pine
The 1993 World Conference on Human Rights in Vienna strengthened international commitment to the fundamental principle that women's rights are human rights. This year, the International Conference on Population and Development (ICPD) in Cairo has prompted the international community to focus on the role of women's human rights in the context of population policy.
The Programme of Action which emerged from the ICPD emphasizes the importance of women's human rights in both population and development objectives. It reiterates that a better quality of life for individual human beings must be the focus of government policies, and that "[t]he human rights of women...are an inalienable, integral and indivisible part of universal human rights." In particular, in a section titled Reproductive rights and Reproductive Health, the Programme makes the important statement that "reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents" and reiterates the principle that there is a "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." The Programme goes on to state that the right "includes the right of all to make decisions concerning reproduction free of discrimination, coercion, and violence...."
[These statements in the Programme of Action reflect a growing acknowldgement by the international community] that the right to reproductive health care, in a social and health care system that ensures informed and voluntary reproductive choice, is within the scope of existing international human rights treaties and conventions. Among these are the United Nations Charter, the Universal Declaration of Human Rights, the Economic and Social Covenant and the Convention on the Elimination of All Forms of Discrimination Against Women. Collectively, these international legal instruments guarantee individuals a right to health care, the benefits of scientific progress, privacy and security of the person gender equality, non-discrimination, and freedom from government interference in marriage and family life.
Sovereign legal systems also play a role in insuring reproductive rights and health. The law's condemnation or approval of reproductive rights and health, even if unenforced or unknown to most of a population, can exert subtle and even pronounced influences on the reproductive health care options available to women and on the reproductive choices the women make.
Sovereign laws that restrict the availability or legality of contraception, sterilization and abortion can severely curtail the ability of individuals to control and time their own fertility...Restrictive abortion laws unequivocally illustrate the health consequences of such measures. Illegality, coupled with the lack of safety characterizing the abortion services that are nevertheless available, has resulted in the deaths of between 70,000 and 170,000 women around the world each year -- a figure that does not include the untold number of women suffering serious injury, infection or hemorrhage.
Factors affecting women's socio-economic status and quality of life can also help guarantee freedom of reproductive choice. Thus, domestic laws structuring the conditions in which women live and work are also critical to allowing them to make reproductive choices.
Although the phrase "human rights" is sometimes used loosely to express general norms of justice and human dignity, the term refers equally to system of rights guaranteed under the law. In assessing the contribution of the human rights framework to the formulation of population policies, it is useful to consider the national and international legal dimension outlined above. The legal expression of ethical or medical norms provides neutral, generally acceptable standards for assessing the minimum required quality of reproductive health care. It institutes accountability and the potential of enforcement against violators of these standards. It also creates a "safe harbor" or zone of protection for a specified range of reproductive options and medical procedures. Finally, it asserts the importance of individual needs over the politically determined community good. Although rights are never absolute in legal terms, the implementation of population policies consistent with such a framework implies recognition of at least a presumptive entitlement to the rights for individuals as well as the gravity of their deprivation.
[T]o make population policies fully supportive of women's rights, countries must modify restrictive national laws, enforce laws that ensure women's rights and reassess policies of non- ratification of international treaties that bear on women and reproductive rights. Countries should adopt measures that reinforce the significance of the rights of women in all policies and programs and ensure even-handed prohibition of compulsion, coercion and discrimination in all medical and counseling services.
Governments should offer an approach to family planning that includes a wider range of reproductive health care options that fully respect the choices of individuals to have or not have children and the choices of women to continue or terminate pregnancy. Finally, they should adopt laws, policies and programs that promote the legal, medical, social and economic conditions that empower women, thereby making reproductive health and reproductive choice a reality of daily life. This is indeed a daunting agenda. But it is long overdue.
Who Defines Women's Rights? A Third World Woman's Response
by Azizah al-Hibri
The 1993 World Conference on Human Rights in Vienna revealed the wide gulf that separates "Third World" women from "First World" women. Arriving at the conference to discuss their human rights issues, Third World women were surprised to see that this task had been performed on their behalf by First World women, who used their organizational skills to take control of the conference and determine its agenda. The shock was so profound that, immediately upon leaving Vienna, Third World women began internal discussions to define a course of action that would avert a future repeat of this undemocratic/patriarchal situation.
In retrospect, the Vienna event did not usher in a new trend. Indeed, even during the 1981 United Nations Mid-Decade for Women conference in Copenhagen, the gulf was already apparent. At the Forum, the concurrent unofficial conference held in conjunction with the official UN conference, the gulf became so wide that a series of Third World women's meetings were held impromptu on site. As a result, at least one plenary session designed to express the views of Third World women was added.
In both instances, and many others, Third World women were frustrated by attempts on the part of First World women to speak for all the participants. They were also frustrated with the First World women's selection of Third World spokeswomen representing a First World point of view. The recent International Conference on Population and Development (ICPD) in Cairo unfortunately replicated these earlier patterns. For this reason, as well as others, some Third World women carried placards during the last days of the ICPD criticizing it for not being responsive to their concerns.
The impact of American feminism on Third World women has been positive. Unfortunately, however, the positive effects have been diminished by some vocal First World women activists who appear to dominate international fora. The problem lies with the approach these activists take. They refuse to treat Third World women as equals, even as they claims to fight for their human rights. In a real sense, the approach reeks of the attitude of early colonialist women, in places such as Algeria, who appropriated and silenced the colonized woman's voice. In her new book, The Eloquence of Silence (Routledge 1994), Marnia Lazreg, an Algerian-born feminist, provides an insightful analysis of this problem. She uses the issue of the veil as an example:
"The veil made colonial women uncomfortable, as did every task that Algerian women performed, from rearing children to cooking and taking care of their homes. The veil, for the colonial woman, was the perfect alibi for rejecting the Algerian woman's culture and denigrating her. But it was also a constant reminder of her powerlessness in erasing the existence of a different way of being a woman. She often overcame her handicap by turning it into an advantage. She is superior to these veiled women..." (p.136)
In Copenhagen, Third World women were told that their highest priorities related to the veil and clitoridectomy (female genital mutilation). In Cairo, they were told that their highest priorities related to contraception and abortion. In both cases, Third World women begged to differ. They repeatedly announced that their highest priorities were peace and development. They noted that they could not very well worry about other matters when their children were dying from thirst, hunger or war. Sometimes, First World women shook their heads and indicated that they understood. But nothing has changed. First World women still do not listen; they still do not hear.
Many Third World women went to Cairo with a sense of hope. Finally, a conference was prepared to address their issues. After all, it was clearly billed as a "development" conference. But, again, their hopes were left unrealized. The conference instead centered around reducing the number of Third World babies in order to preserve the earth's resources, despite (or is it "because of") the fact that the First World consumes much of these resources.
What First World women succeeded in doing at Cairo, however, in fact damaged Third World women. They forced the issue of abortion on everyone, from a First World perspective. Many Third World governments allied to the United States acquiesced in the demands of the conference, thus making women's issues appear to their citizens (including women) as suspect, and the proposals as "foreign" and offensive. Other Third World countries were forced to evaluate their public policies on the matter from the First World's perspective. Because of the apparent racism motivating some of these First World reproductive concerns, the outcome in some cases has been disastrous to women.
In the case of abortion rights specifically, in certain Muslim countries the result was to produce a highly conservative official juristic analysis of the issue. This presents a retrenchment, since, for hundreds of years, Muslim jurists have had quite a liberal analysis of abortion, and, unlike the situation that used to exist in the United States, safe abortions were widely available in many Muslim countries.
The reason for this retrenchment derives to a great extent from the perception that the First World reproductive rights movements are part of a concentrated racist Western onslaught on Third World population. Had Muslim women been afforded the space to speak in their own voices, the results may have been remarkably different.
It is unfortunate that some First World women's discourse has poisoned the local well for Muslim and other Third World feminists. But Third World feminists will struggle on until they achieve all the rights their respective states and patriarchal cultures have thus far denied them. They will do this by developing feminist analyses of their own religious texts, much like Mary Daly and others did for Christianity, and then relying on these analyses to advance their cause. They will recruit supportive First World feminists to help them in their efforts, but they will specify the kind of support needed, and they will lead their own battles. They will not seek to achieve their liberation by denigrating their religion or culture or by forcing upon their communities inappropriate priorities and demands. They will do it their own way.
