Six Latin American States Against “Reproductive Rights” at the UN Human Rights Council. The Region Speaks with One Voice in Defense of Life and Family

Drinking water as a vehicle for contested concepts

On October 6, the UN Human Rights Council adopted without a vote the resolution “The human rights to safe drinking water and sanitation” (A/HRC/63/L.34), submitted by Spain and Germany. This year’s version of the document contained, for the first time, references to so-called reproductive and sexual health and rights, both in the preamble and in the operative part. Presenting the draft, the German delegation argued that a lack of adequate sanitation affects menstrual hygiene and undermines the realization of these “rights.”

The states of the Organization of Islamic Cooperation tabled two amendments (L.39 and L.40) intended to remove these references. They pointed out that the wording had not appeared in previous versions of the resolution and that the terminology itself had not been agreed intergovernmentally. Both amendments were rejected by a vote of 10 in favor, 27 against, with 9 abstentions. Those voting against them included Spain, Switzerland, Iceland, Estonia, Mexico, the Netherlands, and Slovenia. The adoption of the resolution without a vote did not, however, mean that all states accepted its content. Some of them expressed their opposition in the form of statements placed on record.

Six voices, one line of argument

The following day, October 7, during the Council’s 43rd meeting (recording), Colombia was the first to deliver an explanation of position after the adoption of the resolution. Its delegation distanced itself from the expression “sexual and reproductive health and rights,” pointing out that it is neither universally agreed language nor a binding definition. Colombia undertook to interpret the term “gender” and derivative terms in accordance with Article 7(3) of the Rome Statute, and references to children’s education in light of parents’ right to bring up their children, guaranteed in Article 68 of the Colombian Constitution and Article 18 of the International Covenant on Civil and Political Rights. It regarded “intersectional discrimination” and similar terms as concepts lacking a precise definition that do not constitute autonomous legal categories. So-called intersectional discrimination is a concept derived from American critical theory, according to which various human characteristics, such as sex, age, or sexual orientation, overlap and create particular forms of inequality. The term does not appear in any binding human rights treaty. In UN documents, it serves primarily to introduce categories such as “gender identity” on an equal footing with the grounds of discrimination recognized in international law.

Chile referred solely to the water resolution. Its representative stated that the government protects the right to life in accordance with the national legal order and its international obligations, and that “sexual and reproductive health” is not a right recognized in international law. The definition of this concept depends on the domestic law of each state.

Argentina, Paraguay, Peru, and Costa Rica, as observer states that are not members of the Council, took the floor at the 44th meeting, which closed the session. Peru distanced itself from the expression “sexual and reproductive rights” in every instance in which it would be interpreted as a right to abortion. In doing so, it recalled the Cairo Programme of Action and the protection of the right to life. The delegation emphasized the primacy of parents’ rights in matters concerning children and described the concepts of “intersectionality,” “gender perspective,” and “gender identity” as not constituting autonomous legal categories capable of giving rise to international obligations. It also added that Council resolutions are not legally binding.

Paraguay, referring directly to the water resolution, stated that it understands the term “gender” in accordance with its constitution and Article 7(3) of the Rome Statute as referring to men and women. According to Paraguay, references to so-called reproductive and sexual rights should be interpreted in line with the national legal framework and the social and cultural values of the state. The delegation recalled that Paraguay’s constitution protects life from conception and that the role of parents in raising children derives, among other sources, from Article 5 of the Convention on the Rights of the Child.

Costa Rica entered an interpretive reservation regarding the concepts of so-called reproductive and sexual rights, “gender,” parental rights, and “intersectionality.” It stressed that they must be applied in accordance with the constitutional and conventional guarantees in force in that state, and that the government in San José understands “gender” as substantive equality between women and men. Argentina, for its part, recalled that international law contains no universally agreed and binding definition of “gender” distinct from biological sex, and that “reproductive rights” should be understood solely within the limits of existing treaties. It described “intersectionality” as an academic concept. The Argentine delegation took the view that mixing concepts in thematic resolutions does not strengthen human rights but weakens them, and with them the authority of the Council itself.

The Rome Statute as a common point of reference

Characteristically, the statements of Colombia, Peru, and Paraguay repeatedly refer to Article 7(3) of the Rome Statute. This provision states that the term “gender” refers to the two sexes, male and female, within the context of society. It is a definition negotiated and adopted by states in a binding multilateral treaty. Invoking it makes it possible to demonstrate that the biological understanding of sex is not merely a political declaration but is grounded in international law to which states have consented.

A similar function is served by the Programme of Action of the International Conference on Population and Development, held in Cairo in 1994 and invoked by Peru. Its paragraph 8.25 makes clear that in no case should abortion be promoted as a method of family planning. The document, which supporters of the so-called reproductive rights agenda readily invoke, therefore does not establish a right to abortion.

The end of an apparent consensus?

Supporters of the new wording argued that reproductive rights are grounded in the Cairo Programme of Action and the Beijing Platform for Action, and that the link between access to water and “reproductive health” was recognized by the Committee on Economic, Social and Cultural Rights in its General Comment No. 22. This argument, however, overlooks two issues. First, the Cairo and Beijing documents are not treaties and do not create new rights, and paragraph 8.25 of the Programme of Action explicitly excludes abortion from family planning. Second, the general comments of treaty bodies are interpretations by independent experts, not a source of obligations to which states have consented.

The convergent statements of the six states are significant for several reasons:

• They undermine the mechanism of so-called agreed language, whereby concepts once adopted without a vote are presented in subsequent resolutions as consensual, even though many states consistently distance themselves from them. Indonesia pointed directly to this problem in the same part of the proceedings.
• They show that reservations about so-called reproductive and sexual rights are voiced not only by observer states but also by Latin American members of the Council, namely Chile and Colombia.
• They are part of a broader trend. Malaysia, which had co-authored the water resolution in its seven previous editions, declined this time to co-sponsor it because of the new terminology. Similar reservations were entered by, among others, Algeria and Iran, as well as by Pakistan on behalf of the Organization of Islamic Cooperation.
• They give states a real tool for protecting their sovereignty. The statements are included in the session report and document that a given concept does not enjoy universal acceptance.

The statements did not take the form of a joint statement, as each state spoke on its own behalf. Nevertheless, Argentina’s Foreign Minister Pablo Quirno presented them as a common front of the states of the region, while Amnesty International expressed concern about Argentina’s position on gender issues.

The need to object

Ensuring access to safe drinking water and sanitation, especially for women and girls in the poorest regions of the world, is an uncontroversial goal that has united states for years. That is precisely why using a resolution of such fundamental importance to introduce concepts on which there is no agreement is particularly problematic. It breaks consensus where it should be easiest to achieve and shifts onto states the burden of distancing themselves from contested wording. The voice of Argentina, Chile, Colombia, Paraguay, Peru, and Costa Rica is a reminder that the source of obligations in international law remains the consent of states, not successive editions of resolutions.

“The statements of the six Latin American states show that resistance to expanding international law with concepts to which states have never agreed is ceasing to be the preserve of a narrow group of countries. Particularly telling is the uniform reference to Article 7(3) of the Rome Statute, that is, the treaty definition of gender based on the distinction between women and men. Poland, whose Constitution protects marriage as a union of a man and a woman, as well as the family, motherhood, and parenthood, should consistently make use of the same instrument: interpretive statements and reservations placed on record. Only in this way can silence be prevented from being read as consent,” says Julia Książek of the Ordo Iuris Center for International Law.

See also:

• “Reproductive Violence” in the UN Human Rights Council Resolution. Another Loophole for Pushing Abortion?
• Observations from the UN Human Rights Council’s 62nd Session
• The “Motherhood Penalty” – A UN Report on Violence Against Mothers
• UN Commission Proceedings End in Fiasco After Failed Attempts to Expand the Scope of “Sexual and Reproductive Rights”
• UN: An Increasingly Broad Coalition of Pro-Life Countries Against So-Called “Reproductive and Sexual Rights”

Source of cover photo: iStock