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This is a compilation of documents, legislation and case-law selected from the work of treaty bodies and courts within the European Human Rights System, that relate to reproductive and sexual health. This compilation was assembled to assist those who are preparing reports, briefs, or alternative reports relating to this topic. This introduction consists of two parts. The first contains a brief overview of the types of human rights that are included in the area of reproductive and sexual health. The second part provides a brief introduction to each of the treaty bodies or courts set out above, as well as the methodology used to obtain the selections in this manual. Following the introduction there is a select bibliography and a list of key websites that are useful for providing a better understanding of how to protect and promote reproductive and sexual health rights within the European Human Rights System. 1. Human Rights Relevant to Reproductive and Sexual Health 1 At the United Nations International Conference on Population and Development held in Cairo (1994), Reproductive Health was described as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes." 2 The Cairo Conference further established that reproductive health also includes the right to "a satisfying and safe sex life with the capability to reproduce and the freedom to decide if, when and how often to do so." Implied in this statement is the notion that in order to reproduce safely and freely, men and women must be informed and have access to: safe, effective, affordable and acceptable methods of family planning of their choice as well as the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. 3 The definition of reproductive health was further expanded to advance women's wider interests in the Declaration and Platform for Action adopted by 187 United Nations Member States at the 1995 Fourth World Conference on Women, held in Beijing. The Declaration and Platform for action states:
There are various ways that reproductive rights may be violated: 1) Violations may result from direct action on the part of a state which interferes with one's reproductive rights, such as coercive sterilization; 2) Violations may also result from a state's failure to meet the minimum core obligations of a human rights treaty. For example, a state may neglect to reduce maternal mortality and thereby fail to observe the minimum core obligation of ensuring the right to life; 3) Violations may arise as a result of patterns of discrimination, such as persistent and gross discrepancies in access to health services, that cumulatively disadvantage the reproductive health of certain groups. In order to provide some examples of what reproductive and sexual rights encompass, several relevant articles from the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and the European Social Charter (Social Charter) are listed below: Right to Non-Discrimination in Relation to the Substantive Rights of the Convention European Convention: Article 14
Right to life European Convention: Article 2
Right to Liberty and Security of the Person
Government regulation of population size may interfere with the right to liberty and security of the person if it results in compelled sterilization and abortion. The right to liberty and security of the person may also be violated if the state imposes criminal sanctions on those who provide or seek voluntary sterilization, contraception, abortion and thereby subject women to compulsory pregnancy. Right to Private and Family Life European Convention: Article 8
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Right to Receive Information European Convention: Article 10
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of ealth or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Right to Protection for Mothers and Children Social Charter: Article 8 With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake:
2. To consider it as unlawful for an employer to give a woman notice of dismissal during her absence on maternity leave or to give her notice of dismissal at such time that the notice would expire during such absence; 3. To provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. a) To regulate the employment of women workers on night work in industrial employment; b) To prohibit the employment of women workers in underground mining, and as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy, or arduous nature. With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services. Women require care and protection during pregnancy, as well as during and after childbirth to ensure maternal health. Not only does this require care before, during and after childbirth, but it also requires sufficient time off of work, and paid maternity leave. Right to Health Social Charter: Article 3 With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Contracting Parties undertake: 1. to issue safety and health regulations; 2. to provide for the enforcement of such regulations by measures of supervision; 3. to consult, as appropriate, employers' and workers' organisations on measures intended to improve industrial safety and health. Article 11 With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designated inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases. Without affordable and accessible health services, reproductive health cannot be ensured. Reproductive health care includes services that not only provide care for existing reproductive health problems, but also provide preventative measures such as counseling and treatment related to reproduction and sexually transmitted diseases. Rights of the Family Social Charter: Article 16 With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means. Infertility due to reproductive tract infection jeopardizes the right to form a family. Governments therefore have the positive obligation to provide relevant information, education and services to protect the formation of families. Also, to ensure women's autonomous and confidential choices in reproductive matters, women's private lives must be protected against public officials' intrusions. 2. Summary of Mechanisms for Implementing Rights in the European Human Rights System It is helpful to consider the Council of Europe and the European Union as two separate systems, and they are therefore discussed separately below. However, these two systems are not completely unrelated since the Member States of the EU are bound by the provisions of the institutions under the Council of Europe. The Council of Europe 5 The Council of Europe is a regional organization established in 1949 whose main role is to strengthen democracy, human rights and the rule of law throughout its Member States. The Statute of the Council of Europe provides that the Council's aim of achieving unity amongst its members will be pursued by taking action in economic, social, cultural, scientific, legal, and administrative fields, as well as by the maintenance and further realization of human rights and fundamental freedoms. The Council of Europe has two main organs: the Committee of Ministers, which represents the Governments of the Member States, and the Parliamentary Assembly, which represents the Parliaments of Member States. Both of these bodies are described in more detail below. Committee of Ministers The Committee of Ministers is the decision-making body of the Council of Europe, comprising the ministers for foreign affairs of the forty Member States or their permanent representatives. It meets at least twice a year to review European co-operation and matters of political concern. The Committee of Ministers makes recommendations to Member States on matters for which the Committee has agreed upon "a common policy" and recommendations concerning a particular Member State under the European Social Charter. The Committee may also adopt recommendations given by the Parliamentary Assembly, issue replies to recommendations of the Parliamentary Assmbly, or adopt declarations or resolutions on international issues and other political questions. Another important task of this Committee is to monitor the implementation of judgments made by the European Court of Human Rights. Recommendations, declarations, resolutions, or replies that have been issued by the Committee of Ministers relevant to reproductive and sexual health were selected from the Committee of Minsters' website at: http://www.coe.fr/cm/ and may be found in Part III in Volume I. Parliamentary Assembly The Parliamentary Assembly is a consultative body. Its Recommendations to the Committee of Ministers may, however, serve as a starting point for action in many key areas of the Council's work. The Replies of the Committee of Ministers to recommendations issued by the Parliamentary Assembly relevant to reproductive and sexual health may be found in Part III in Volume I. For more information on the Parliamentary Assembly, please visit: http://stars.coe.fr/. Relevant Conventions The protection of human rights is one of the most important functions of the Council of Europe. The Council has directed its activities to achieve these ends through the adoption of conventions and recommendations. Among the human rights conventions adopted by the Council are: each of which is described below. A list of ratifications for these treaties can be found in Appendix II which is current to December 2001. For a more complete list of the Council of Europe's treaties and up to date ratification information, see: http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm. The European Convention The European Convention offers protection for a wide variety of civil and political human rights. Some of the particular provisions relevant to reproductive and sexual health have been outlined above. A complete list may be found in the chart in Appendix I. In addition to the rights protected under the European Convention, there are nine Protocols that have been added which offer protection for further rights and liberties. The European Court of Human Rights is responsible for the enforcement of the provisions of the European Convention. It has the discretion and authority to hear cases involving both inter-state complaints as well as complaints involving individual human rights violations. 6 The text of the European Convention, and the protocols relevant to reproductive and sexual health may be found in Part I of this manual. Relevant cases of the European Human Rights Court and an application form for submitting complaints to this court were selected from the Court's homepage, and may also be found in Part I. For more information about the European Court and its case-law, or to view the Convention and its full list of protocols online, please visit: http://www.echr.coe.int. The European Social Charter The Social Charter is the natural counterpart to the European Convention. Whereas the European Convention guarantees civil and political rights, the Social Charter guarantees economic, social and cultural rights. Some of the rights protected under the Charter that are relevant to reproductive and sexual health have been listed above. A more complete list of these rights can be found in the chart in Appendix I. The Social Charter is the only convention of the Council of Europe in the field of human rights that provides for a systematic monitoring of the undertakings accepted by States Parties, at regular intervals called "supervision cycles." States Parties must report every two or four years, (depending on which provisions they are reporting) on how they have implemented the rights included in the Social Charter with which they have agreed to comply.7 After States Parties' reports are submitted, they are evaluated by three different bodies. The European Committee of Social Rights (ECSR) (formerly the Committee of Independent Experts), is responsible for giving a legal assessment of compliance with the accepted provisions. The Governmental Committee gives a political evaluation of reports based on social, economic and other policy considerations. The Committee of Ministers issues resolutions for entire supervision cycles, which also include individual recommendations to the Contracting Parties concerned. The resolutions and recommendations of the Committee of Ministers are based on a report put together by the Governmental Committee. The relevant excerpts from the Conclusions of the European Committee of Social Rights, and the general recommendations of the Committee of Ministers can be found in Part IV in Volume II. The full text of the European Social Charter (Revised) may also be found in Part IV. Further information on the Charter and its protocols can be obtained from: http://www.humanrights.coe.int/cseweb/GB/index.htm. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 8 This convention provides for the setting up of an international committee empowered to visit all places where persons are deprived of their liberty by a public authority. The committee, composed of independent experts, may make recommendations and suggest improvements in order to strengthen, if necessary, the protection of persons visited from torture and from inhuman or degrading treatment or punishment. It should be noted that the committee is a non-judicial one, and is based on the principles of state co-operation and confidentiality. The purpose of the committee is not to condemn states, but, in a spirit of co-operation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty. The Committee is entitled to issue a report which contains recommendations after each visit but the report is kept confidential. 9 Nevertheless, the States Parties that have ratified this Convention are obligated to honour it. Arguments may be made in domestic courts for the enforcement of rights it is supposed to protect. The Convention can be found in Part II of this compilation and the rights under this Convention which pertain to reproductive and sexual health are set out in Appendix I. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine This convention is included because of its immediate relevance for patients' rights in reproductive and sexual health services. Although this convention does not yet have a treaty body responsible for the enforcement of its provisions, it may be used in domestic courts within those Member States that have signed and ratified it. The convention can be found in Part II of this compilation and the rights under the convention, which pertain to reproductive and sexual health, are set out in Appendix I. European Union 10 The European Union (EU) is the result of a process of cooperation and integration that began in 1951 between six countries. The EU today has fifteen Member States 11 and is preparing for its fifth enlargement, this time towards Eastern and Southern Europe. One of the goals of the EU is the improvement of living and working conditions for citizens. It is for this reason that the EU case-law and legislation has been added to this manual. Legislation in the European Union is brought into force by the European Parliament and the Council, after it has been initiated by the Commission. It is the responsibility of the Court of Justice to ensure compliance with the legislation once it has been created. European Union Directives 12 and European Court of Justice Cases 13 Included in this compilation are selected EU directives, resolutions and recommendations relating to reproductive and sexual health issues. Since the directives are immediately binding for the EU Member States they constitute vital common legislation to these States and will become an increasingly important part of national legislation. In addition, cases of the European Court of Justice concerning reproductive and sexual health have been included. EU Legislation in Cases of the European Court of Justice were selected from: http://europa.eu.int/eur-lex/ and may be found in Part IV of Volume I. Acknowledgments Valuable research assistance for the assembly of documents and information for this manual was provided by: Zokir Abdukhamedov, Kevin Doyle, Katrine Engelbrecht Thomsen, Eszter Kismodi, and Nadedja Naydenova. Comments Welcome The compilation of these materials was done in co-operation with the International Programme on Reproductive and Sexual Health at the University of Toronto's Faculty of Law, and the Danish Centre for Human Rights. The materials were initially compiled as part of the International Programme on Reproductive and Sexual Health at the University of Toronto's Faculty of Law. However, any errors or omissions are strictly our own. We wish to express our gratitude to the United Nations Population Fund (UNFPA), the University of Toronto's Faculty of Law, the Bora Laskin Law Library, and the Women's Reproductive and Sexual Rights website [http://www.law-lib.utoronto.ca/diana/mainpage.htm] for their assistance with and support for this project. It is hoped that these materials and this project will be useful to government officials, non-governmental human rights activists, students, teachers, and researchers in the field of reproductive and sexual health law. The material will be updated periodically. We welcome any comments or suggestions on these materials. 1. For a discussion of the identification of rights relevant to reproductive health, please see: Rebecca J. Cook and Mahamoud Fathalla, "Advancing Reproductive Rights Beyond Cairo and Beijing (1996) 22(3) International Family Planning Perspectives 115 - 121. 2. United Nations (UN) Report of the International Conference on Population and Development, Document A/Conf.171/13, New York, 1994, par. 7.2. 3. United Nations (UN) Report of the International Conference on Population and Development, Document A/Conf.171/13, New York, 1994, par. 7.2. 4. United Nations (UN) Report on the Fourth World Conference on Women, Document A/Conf.117/20, New York, 1995 par. 96. 5. for more information on this organization, see: http://www.coe.fr/index.asp 6. see the introduction to Part I for a discussion of submission of complaints to this court. 7. see the introduction to Part II for a discussion of who may submit reports to the ECSR. 8. This summary was obtained from the Council of Europe website at: http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm 9. note that under art. 11(2) of the Convention, each state party may decide to lift the confidentiality requirement. 10. This summary was obtained from the European Union website at: http://www.europa.eu.int/index_en.htm 11. see Part V for a of member states current to Dec. 2001, or see: http://europa.eu.int/eur-lex/ for up to date information 12. http://europa.eu.int/index/policies/-en.htm 13. http://europa/en/int/inst-eng.htm
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