A Poison Pill in the Right to Development

By | October 2, 2024

Introduction

In October 2023, the Human Rights Council decided to transmit the draft text of a treaty on the right to development to the General Assembly (A/HRC/RES/54/18, OP 17). The purpose of the new treaty is to affirm the sovereignty of developing countries and their right to pursue their economic and social development without interference from former colonial powers.

It may come as a surprise to UN delegation in New York to see the phrase “sexual and reproductive health and reproductive rights” in Article 16, paragraph 3, subparagraph (g) of the new treaty. This is the first time that such controversial concepts are associated with the Right to Development. The annual General Assembly resolution on the right to development does not include these controversial elements. This is by design.

All terms related to “sexual and reproductive health” or “reproductive rights” in UN agreements are tied to extreme abortion and homosexual/transgender programming and advocacy. Such terms are implemented by the UN human rights system and UN agencies as implying abortion rights, homosexual/transgender rights even when they are only related to health (See Appendix “New Meanings of SRH” below).

The irony is, the language on reproductive health in Article 16 of the treaty threatens to enshrine abortion rights, homosexual/transgender rights, and sexual rights for children in international law. All these issues are Western impositions on the mostly more traditional countries of the Global South.

Below is legal analysis of the draft article in question in light of existing international law and the practice of international organizations.

 

 1. The phrase “sexual and reproductive health and reproductive rights” is not defined in the text and history of the draft treaty on the right to development

Article 16.3(g) in the draft international covenant on the right to development (A/HRC/54/50) contains an obligation to “to ensure equal and equitable access to sexual and reproductive health and reproductive rights.” This is the first time that these concepts are associated with the Right to Development, as the annual General Assembly resolution on this topic does not include these terms (A/RES/78/203). It is only the second time the phrase “sexual and reproductive health” may be enshrined in a binding international human rights treaty, and it would be the first time that the term “reproductive rights” is included in any binding UN human rights treaty.

The inclusion of these terms cannot be considered in a vacuum. These terms have, over time, acquired a specific meaning in the context of the normative and programmatic activities of the United Nations System. Such meanings include highly controversial concepts related to sexuality and family life, like abortion rights, homosexual/transgender rights, and sexual rights for children (See Appendix “New Meanings of SRH” below). The ambiguities and controversial interpretations made by these terms within the United Nations System make it necessary to offer a strong note of caution on the inclusion of such terms in a binding UN treaty.

Developing countries might think that they can avoid controversial interpretations of the reproductive health language in the new treaty by defining it in national laws and policies in the same way as they do with non-binding agreements. But they would be wrong.

If the General Assembly adopts this new treaty, the phrase “sexual and reproductive health and reproductive rights” would not have a blank meaning to be filled in by national laws. It would also have an international legal meaning. That international meaning would not be determined by looking solely to national laws and policies, but also to Western-backed international programs on reproductive health based in existing UN agreements. Such an interpretation would necessarily include abortion rights and homosexual/transgender rights.

 

2. In the absence of a definition or caveats, the meaning of the phrase “sexual and reproductive health and reproductive rights” will depend on the normative and programmatic guidance of the UN human rights system and UN agencies

Different Member States may in practice understand these controversial terms to have differing meanings according to national context. However, there is no evidence, in the history of the negotiations of the treaty thus far, that Member States offered any such specific interpretation of these terms or any caveats that would exclude the imposition of obligations on controversial concepts related to sexuality and family life.

The commentaries to Article 16.3(g) in the report of the drafting committee simply state that this language “is verbatim based on SDG 5.6” (A/HRC/54/50/Add.1, p. 79). In the context of such a normative vacuum, the operative international legal definition of these controversial terms will be deduced from the normative and programmatic understanding of the terms most widely available within the UN System.

It should be noted, by comparison, that the first time “sexual and reproductive health” was mentioned in a binding treaty it was accompanied by a severe qualification excluding abortion rights or other controversial new human rights claims. This was the case with the Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (hereinafter, the “CRPD”). When that treaty was negotiated the member states negotiating the convention agreed explicitly that abortion was not an international right and included language in the travaux prepartoire to that effect. The report of the drafting committee transmitting the draft treaty to the General Assembly, included footnote 4 to Article 25 on the right to health, clarifying that the use of the phrase “sexual and reproductive health in the convention would not constitute recognition of any new international law obligations or human rights.” Rep. of the Ad Hoc Comm., 7th Sess., Jan. 16 – Feb. 3, 2006, U.N. Doc. No. A/AC.265/2006/2 (2006) (emphasis added). There is no context for what is meant by sexual and reproductive health or reproductive rights in the negotiating history of the draft treaty on the right to development, therefore, it must be deduced that member states were referring to the widely available normative and programmatic usage of the term within the broader UN system.

Because there is no is no evidence, in the history of the negotiations of the treaty thus far, that Member States offered any specific interpretation of these terms, the meaning of the treaty will be determined by reference to already established normative and programmatic meaning of these terms operative within the UN system.

This follows from basic principles of legal interpretation in the Vienna Convention on the Law of Treaties which provide that previous and subsequent agreements, and their implementation can determine the meaning of the terms of a treaty (Vienna Convention on the Law of Treaties Between State and International Organizations or Between International Organizations arts. 31-33, May 23, 1969, 1155 U.N.T.S. 331).

Adopting this terminology also has implications for customary international law. The International Law Commission’s draft conclusions on the identification of customary international law specifically state that the implementation of UN resolutions by UN agencies can contribute to the formation of new customary international norms. In this sense, the ILC has stated that silence by Member States in international organizations, as for example by adopting controversial language by consensus in UN resolutions or treaties, will be interpreted as consent to the formation of new customary norms (See ILC Draft Conclusions 4 and 10 and their commentary contained in UN Document A/73/10).

 

 Recommendations

Because the terms “sexual and reproductive health” and “reproductive rights” have acquired highly controversial but discrete meaning in the normative and programmatic work of the UN System it is necessary for UN member states to clarify if they agree or not with the ongoing implementation of such terms by UN mandates and agencies. This should be done at all stages of the normative development of the treaty on the right to development. So far, there is little indication that UN member states objected to the way the UN system implements Goals 3.7 and 5.6 of the 2030 Agenda containing language related to “sexual and reproductive health” and “reproductive rights” in the context of the negotiations on the right to development in Geneva. This is something that should be remedied when the treaty is discussed in the General Assembly.

Member States should ask to remove the offensive terms when the draft is presented to the General Assembly or call for the treaty to be re-negotiated through an intergovernmental process. Member States should voice their objections to controversial interpretations of the terms if the terms remain in the treaty.

Any eventual resolution of the General Assembly on the modalities for the negotiation and adoption of the treaty on the right to development should at a minimum include caveats that sexual and reproductive health and reproductive rights must be understood “in accordance with national laws and policies.”

The resolution should also incorporate some caveats regarding the terms “sexual and reproductive health” and “reproductive rights” from previous binding and non-binding agreements. Examples of such caveats can be found in paragraph 8.25 of the International Conference on Population and Development, which states that changes to abortion laws can only be decided in national legislation without external interference; Rep. of the Int’l Conf. on Pop. and Dev., Cairo, September 5-13, 1994, U.N. Document No. A/CONF.171/13/Rev.l (1994); or also footnote 4 to Article 25 on the right to health in the report of the drafting committee of the CRPD, clarifying that the use of the phrase “sexual and reproductive health in the convention would not constitute recognition of any new international law obligations or human rights.” Rep. of the Ad Hoc Comm., 7th Sess., Jan. 16 – Feb. 3, 2006, U.N. Doc. No. A/AC.265/2006/2 (2006)

 

APPENDIX.  NEW MEANINGS OF “SEXUAL AND REPRODUCITVE HEALTH” ACCORDING TO UN HUMAN RIGHTS SYSTEM AND UN AGENCIES

When Member States adopt language related to “sexual and reproductive health” in UN agreements, whether binding or not, they must contend with already ongoing implementation of such terms within the United Nations system as including among other things:

  • Abortion extremism, including limits on conscience rights for health providers
  • Social acceptance of homosexuality and transgenderism
  • Comprehensive sexuality education
  • Sexual autonomy for children
  • Transgender hormone treatment, including for minors
  • Artificial reproduction technology

Below are five discrete examples of recent documents where the UN human rights system and UN agencies interpret and implement concepts like “sexual and reproductive health.” The documents include reports of Special Procedures, Treaty Body comments, UN Manuals, and Operational Guidance documents.

 

A. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Tlaleng Mofokeng, on Sexual and reproductive health rights: challenges and opportunities during the COVID-19 pandemic (A/76/172)

https://documents.un.org/doc/undoc/gen/n21/195/83/pdf/n2119583.pdf?token=Cz4d1vDKlb9ZrZLT4f&fe=true

Sexual and reproductive health encompasses maternal health care; contraceptive information, goods and services; safe abortion care; and prevention, diagnosis and treatment of infertility, reproductive cancers, sexually transmitted infections and HIV/AIDS, including with generic medicines. Entitlements include physical and mental health care for survivors of sexual and domestic violence in all situations, including access to post-exposure prevention, emergency contraception and safe abortion services… (A/76/172, paragraph 20)

The Special Rapporteur emphasizes the importance of including hormonal treatment for older women and for persons with diverse gender identities, and gender affirming surgery and treatment (A/76/172, paragraph 20)

Non-discrimination requires substantive equality as well, and thus the specific health needs and barriers faced by individuals or groups, women, girls, adolescents, lesbian, gay, bisexual, transgender and intersex persons, and persons with disabilities, and in particular those that experience multiple and intersectional forms of discrimination, must be addressed and differential treatment provided. (A/76/172 paragraph 21)

 

B. OHCHR Information Series: Sexual and Reproductive Health and Rights (2020)

https://www.ohchr.org/en/women/information-series-sexual-and-reproductive-health-and-rights

Adolescents

Human rights bodies have requested States to remove all barriers to access information and services, including those related to marital status, parental or guardian consent and providers’ objections. (Information Series: Sexual and Reproductive Health and Rights, Adolescents, p. 1)

Further, the Committee (on the Rights of the Child) has urged States to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services.”25 Human rights mechanisms have also specifically called for “equal access to health care and access to gender affirming treatment for those who seek” with respect to trans and gender diverse children and adolescents. (Information Series: Sexual and Reproductive Health and Rights, Adolescents, p. 2)

Lesbian, Gay, Bisexual, and Transgender and Intersex Persons

Laws criminalizing same-sex relationships and cross-dressing violate fundamental human rights, including the rights to privacy and non-discrimination. (Information Series: Sexual and Reproductive Health and Rights, Lesbian, Gay, Bisexual, and Transgender and Intersex Persons, p. 1)

For example, transgender persons, including young people, face particular difficulties in accessing health care and related information on sexual and reproductive health and rights.10 Gender-affirming treatment, where available, is often prohibitively expensive and State funding or insurance coverage is rarely available. (Information Series: Sexual and Reproductive Health and Rights, Lesbian, Gay, Bisexual, and Transgender and Intersex Persons, p. 2)

 Abortion

Denial of access to abortion has been identified as a form of gender-based violence against women, which can amount to torture and/or cruel, inhuman and degrading treatment. (Information Series: Sexual and Reproductive Health and Rights, Abortion, p. 1)

Human rights bodies have repeatedly called for the decriminalization of abortion in all circumstances. Laws criminalizing sexual and reproductive health services, including abortion, violate the obligation of States to respect the right to sexual and reproductive health, as well as other human rights. (Information Series: Sexual and Reproductive Health and Rights, Abortion, p. 2)

 

C. Committee on Economic, Social and Cultural Rights General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Document No. E/C.12/GC/22

Non-discrimination, in the context of the right to sexual and reproductive health, also encompasses the right of all persons, including lesbian, gay, bisexual, transgender and intersex persons, to be fully respected for their sexual orientation, gender identity and intersex status. Criminalization of sex between consenting adults of the same gender or the expression of one’s gender identity is a clear violation of human rights. Likewise, regulations requiring that lesbian, gay, bisexual transgender and intersex persons be treated as mental or psychiatric patients, or requiring that they be “cured” by so-called “treatment”, are a clear violation of their right to sexual and reproductive health. State parties also have an obligation to combat homophobia and transphobia, which lead to discrimination, including violation of the right to sexual and reproductive health. (E/C.12/GC/22, paragraph 23)

For the purpose of the present general comment, references to lesbian, gay, bisexual, transgender and intersex persons include other persons who face violations of their rights on the basis of their actual or perceived sexual orientation, gender identity and sex characteristics, including those who may identify with other terms. (E/C.12/GC/22, footnote 5)

The realization of the rights of women and gender equality, both in law and in practice, requires repealing or reforming discriminatory laws, policies and practices in the area of sexual and reproductive health. Removal of all barriers interfering with access by women to comprehensive sexual and reproductive health services, goods, education and information is required. To lower rates of maternal mortality and morbidity requires emergency obstetric care and skilled birth attendance, including in rural and remote areas, and prevention of unsafe abortions. Preventing unintended pregnancies and unsafe abortions requires States to adopt legal and policy measures to guarantee all individuals access to affordable, safe and effective contraceptives and comprehensive sexuality education, including for adolescents; to liberalize restrictive abortion laws; to guarantee women and girls access to safe abortion services and quality post-abortion care, including by training health-care providers; and to respect the right of women to make autonomous decisions about their sexual and reproductive health. (E/C.12/GC/22, paragraph 28)

Individuals belonging to particular groups may be disproportionately affected by intersectional discrimination in the context of sexual and reproductive health. As identified by the Committee, groups such as, but not limited to, poor women, persons with disabilities, migrants, indigenous or other ethnic minorities, adolescents, lesbian, gay, bisexual, transgender and intersex persons, and people living with HIV/AIDS are more likely to experience multiple discrimination. (E/C.12/GC/22, paragraph 30)

 

D. United Nations Inter-Agency Working Group on Reproductive Health in Humanitarian Settings, Interagency Field Manual on Reproductive Health in Humanitarian Settings (2018)

https://iawgfieldmanual.com/manual

Sexual and reproductive health Coordinators, health program managers, and providers can help people achieve their inherent human rights and reproductive rights by reducing inequalities and organizing programs so they benefit everyone. Actions include… Promoting equity, with respect to age, sex, gender and gender identity, marital status, sexual orientation, location (e.g., rural/urban), religion, ethnic group, social group, and other characteristics (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p.12-13)

Acknowledge that adolescents have unique concerns and needs and they may face further discrimination on the basis of age, sex, gender identity, disability, sexual orientation, and bodily diversity (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 22) 

LGBTQIA individuals face a variety of different risk factors for sexual violence and it is important to acknowledge each population as having separate needs and facing different risks. More generally, LGBTQIA individuals, particularly transwomen, face discrimination by health providers and other duty bearers that prevents them from seeking SRH services, including clinical care for sexual violence. Engaging with LGBTQIA self-help or rights groups and making health facilities more respectful of diversity in gender identity and sexual orientation would allow critical health services to become more accessible to these populations. (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 35)

Providers are critical to ensuring that LGBTQIA individuals’ equal rights to health are protected and fulfilled, and should be mindful of the particular barriers that LGBTQIA persons may face when seeking care. Providers should adopt a respectful and non-judgmental attitude when providing services and should strive to address any concerns that may be specific to this population. (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 140)

All health care workers should have basic skills on and favorable attitudes toward safe abortion care so they can identify those women who may want the service, refer them to the appropriate provider, and treat them with respect. Health care providers who claim conscientious objection to providing abortion must refer the woman or girl to another willing and trained provider in the same or another easily accessible health facility. In places where referral is not possible, the objecting provider must provide the abortion to save the woman’s life or to prevent damage to her health. (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 159)

Gender-based violence includes denial of resources and lack of opportunities based on gender, sexual orientation, and/or gender identity (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 190)

HIV programs for MSM (men who have sex with men) can face resistance and criticism from the broader community, especially where social, cultural, and religious attitudes stigmatize MSM. However, with funding and support, program implementers can increase acceptance of the MSM community and interventions. For example… Promote understanding and acceptance of diverse sexual orientation and gender identities in public awareness campaigns to decrease homophobia (Interagency Field Manual on Reproductive Health in Humanitarian Settings, p. 216)

 

E. World Health Organization, Sexual health, human rights and the law (2015)

https://www.who.int/publications/i/item/9789241564984

International human rights standards clearly stipulate that, although the right to freedom of thought, conscience and religion is protected by international human rights law, freedom to manifest one’s religion or beliefs may be subject to limitations in order to protect the fundamental human rights of others. Specifically, human rights and health system standards stipulate that health services should be organized in such a way as to ensure that an effective exercise of the freedom of conscience of health-care professionals does not prevent people, with special attention to women, from obtaining access to services to which they are entitled under the applicable legislation. Therefore, laws and regulations should not allow health-care providers or institutions to impede people’s access to legal health services. Health-care professionals who claim conscientious objection must refer people to a willing and trained service provider in the same or another easily accessible health-care facility. Where such referral is not possible, the health-care professional who objects must provide safe services to save an individual’s life or to prevent damage to her health. (World Health Organization, Sexual health, human rights and the law, p. 15)

The right of everyone to the enjoyment of the highest attainable standard of health includes entitlements to available and accessible health-care facilities for all people without discrimination on any grounds, including gender identity and sexual orientation. It also includes freedoms such as the right to have control over one’s own body, and to be free from non-consensual medical treatment, experimentation and torture. United Nations human rights treaty monitoring bodies emphasize both dimensions and recognize sexual orientation and gender identity as prohibited grounds for discrimination in achieving the highest attainable standard of health. International, regional and national human rights standards, and a growing body of health standards that respect and protect human rights, provide clear benchmarks on how the health and human rights of gay, lesbian, transgender, gender variant and intersex people should be respected, protected and fulfilled. (World Health Organization, Sexual health, human rights and the law, p. 24)

Besides requiring access to health services that other people also need (including primary care, gynaecological, obstetric, urological and HIV care), transgender and gender variant people may also need access to specific kinds of health services, although services and care related to gender transition are only desired by some. Some people make this transition socially through a change of name, dress or other aspects of gender expression, without any medical procedures. Services related to gender transition may include hormonal therapies, surgical procedures, psychological counselling, permanent hair removal and/or voice therapy. Depending on individual needs, transgender and gender variant people may need different transition-related services at different times in their lives. Evidence shows that in many cases, acquiring physical sex characteristics congruent with experienced gender identity (such as by undergoing gender-affirming surgery) improves health, wellbeing and quality of life, including better self-esteem and improved physical, mental, emotional and social functioning, and some have shown improvement in sexual function and satisfaction. (World Health Organization, Sexual health, human rights and the law, p. 25)

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