Introduction

This chapter explores the recognition of gender-based rights in the international human rights framework, emerging from feminist critiques of international law and the transnational movement to establish ‘women’s rights’ as human rights. The Women’s World Conferences on Human Rights were a platform for exploring gendered issues from sexual violence to political representation, and the adoption of the Convention on the Elimination of Discrimination Against Women (CEDAW) in 1979 was a landmark achievement for the feminist movement. This chapter explores some of the key features of CEDAW, as well as considering critiques of the treaty in terms of its (lack of) effectiveness and intersectionality. This chapter also looks in detail at the approach of CEDAW, and other UN and regional treaty bodies, to two significant (and interrelated) issues—gender-based violence, and sexual and reproductive rights. The need for a gender-inclusive approach is considered in relation to intersectionality, and LGBTQI+ rights are explored in the final section, as human rights issues relating to sexual orientation and gender identity are important considerations for gender-based rights.

Recognising ‘Women’s Rights’ at the UN

Women and Human Rights

As covered in Chapter 2, early human rights documents such as the French Declaration of the Rights of Man and of the Citizen did not promote gender equality. However, by the time the Universal Declaration of Human Rights (UDHR) was passed by the United Nations in 1948, many countries had recognised rights for women, including the right to vote and to own property. The UDHR stipulates that the rights it contained applied to everyone without any distinction to be made on various characteristics. As Bunch notes, it was Eleanor Roosevelt and Latin American feminists who successfully pushed for the inclusion of sex in this Article. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) contain the same non-discrimination statement including sex, as well as the obligation that State Parties “ensure the equal right of men and women” to all of the rights contained in each respective Convention (Articles 2-3). However, for the global feminist movement, this was not enough to address the specific forms of discrimination, oppression, and inequality faced by women.

By the 1970s, feminist scholars had become critical of international law for its claim to objectivity and neutrality, while adopting a male-centric approach to human rights which ignored the impact of state affairs on women. The remit of state responsibility drew a divide between the public and the private, where the public was the focus of international law and the private was not. As Squires explains,

“the public–private distinction opposes the public, comprising both the state and civil society, with the private, defined institutionally as the relations and activities of domestic life. (…) Numerous feminist texts have shown how the application of a liberal conception of the private to the domestic sphere has worked to shield the abuse and domination that occurs within it.”

In the context of international human rights law, the public/private divide meant that issues considered ‘private’—such as reproduction, family life, and any violence, suffering, or domination taking place within these spheres—were not framed as human rights issues. Thus, while the rights contained in the UDHR, ICCPR, and ICESCR applied to women as well as men, feminist scholars argued (and still argue) that the human rights framework continued to exclude women. Yet, the global feminist movement did not turn away from the international human rights platform and continued to push for the recognition of gendered issues and gender-based rights within this framework.

The Women’s World Conferences

Weldon et al note that international feminist organising in the 1960s, 70s, and 80s focused on the UN—universal human rights were seen as a promising avenue for advancing their goals, not only because of their inter-governmental reach but also because of the spaces made available for engagement with civil society. This organising culminated in the passing of the Declaration on the Elimination of Discrimination Against Women (DEDAW) in 1967 and its eventual development into a binding Convention (CEDAW) in 1979. Delegates attending the first of the UN’s World Conferences on Women, which took place in Mexico City in 1975, urged the finalisation of the Convention and for governments to give full effect to the principles contained in the Declaration.

The Plan of Action coming out of this conference, as Pietila and Vickers note, was “the first such document the world had seen to concentrate specifically on problems and concerns of women, covering all possible aspects of their lives from food, health and education to family planning and political participation”. Mohanty notes that scholars have been critical of the feminist approach for adopting a homogenous view of gender, arguing that the movement needed to forge “political rather than biological or cultural bases for alliance”. However, the Mexico Conference was “the first proper opportunity for women of the Global South to articulate their priorities within the formalised UN space”. This was a landmark moment in the campaign for the recognition of women’s rights at the UN.

After CEDAW was adopted, three more World Conferences on Women took place: Copenhagen in 1980, Nairobi in 1985, and Beijing in 1995. These platforms saw the discussion of political issues and obstacles affecting advancement for women, and as Chen notes, each Plan of Action increasingly covered a wider range of issues than the last, at least in part due to the exponential increase in the number, geographic, and ideological backgrounds of women’s groups in attendance. Importantly, women from the Global South were influential in these discussions and in forming their own transnational networks. The Latin American and Caribbean Feminist Encuentros were a series of conferences that took place from 1981 to strengthen feminist networks and initiatives within the region, including coalitions built around specific issues such as reproductive rights, gender-based violence, and political representation. These Encuentros were influential at the local, national, and global levels, with Latin American and Caribbean feminists increasingly becoming involved with the UN Conferences. As Chen highlights, the emergence of these ‘significant networks of women from the Global South’ meant a shift in the international women’s movement towards Southern leadership, forging coalitions on a broad range of issues affecting women globally. 

The Development Alternatives with Women for a New Era (DAWN) group formed in 1984, in preparation for the Nairobi Conference, as a network of scholars and activists from the Global South. DAWN sought to articulate a feminist approach which was conscious of the economic issues affecting poor and marginalised women in the Global South, as feminism was largely associated with white, middle-class women from Europe and the United States. Pan-African feminists organising around this conference successfully pushed for a focus on development and gender justice and DAWN members sought to push for Third World women’s perspectives on issues resulting from the colonial exploitation of the Global South: resource inequalities, state debt crises, military violence, and access to food, water, and fuel. As with Latin American and Caribbean feminists, DAWN was also pushing for progress to be made on reproductive rights—in a book published for DAWN shortly before the Nairobi Conference, Gita Sen and Caren Grown highlighted the impact of population programmes which treated women’s bodies as “pawns in the struggles among states, religions, male heads of households, and private corporations”.

Almost a decade later, the Beijing Conference was considered a turning point for the recognition of women’s rights at the international level, with Hilary Rodham Clinton (the First Lady to the US President, at the time) affirming that “women’s rights are human rights” in her now well-known speech. Global South networks continued to raise issues affecting the majority of the world, with Gita Sen leading a discussion for DAWN on alternative development strategies. Coming out of this conference, the Beijing Platform for Action emphasised the empowerment of women and girls as essential to achieve “equality, development, and peace”. The Platform included issues of critical concern that signatories should address as a priority, including poverty, health care, education, political representation, environmental degradation, the impact of armed conflict, and violence against women.

In 2025, UN Women asked human rights activists to reflect on the impact of the Beijing Platform for women’s rights: feminist advocacy for the inclusion of family law reforms in the Platform culminated in a more progressive family law in Morocco in 2004, and broader law reform efforts worldwide focused on marriage equality and combatting gender-based violence. However, there continues to be pervasive gender inequalities worldwide—including unequal protections for reproductive rights, and the continuing scale of violence against women. UN Women therefore put forward the ‘Beijing+30’ agenda for the 69th Session of the Commission on the Status of Women, asking UN Member States to reflect on their progress implementing the Beijing Platform for Action in the year of its thirtieth anniversary. Following this Session, the Commission adopted a Political Declaration calling on Member States to reaffirm the Beijing Platform and implement it alongside the obligations contained in CEDAW, and recognising the new challenges to women’s equality, including those posed by new technologies.

The Convention on the Elimination of Discrimination Against Women

Overview of CEDAW

CEDAW’s Preamble identifies gender-based discrimination as a violation of equality and human dignity. As Chesler highlights, the debates surrounding the drafting of CEDAW concerned numerous questions about how discrimination and equality ought to be framed: “what would equal protection mean in circumstances where men continued to serve as legal guardians and heads of household? How would the formal claim of legal equality address the special burdens of women struggling to balance obligations of work and family?” Significantly, these discussions led to CEDAW’s framing of discrimination as concerning both formal and substantive equality. Article 1 of the CEDAW defines ‘discrimination against women’ as:

State Parties to CEDAW have the obligation to take “all appropriate measures” to eliminate discrimination against women and ensure the full advancement of women on an equal basis with men. These measures can include affirmative action, as Article 4 states that “temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination” provided that they are discontinued once equality of opportunity has been achieved. In addition to legislative, economic, and political measures, Article 5(a) explicitly requires State Parties to “modify the social and cultural patterns of conduct of men and women” which reflect prejudices and practices based on gender stereotypes. Chesler notes this is particularly significant in terms of achieving substantive equality, as “male privilege has for so long been taken for granted, and women’s inferiority assumed”.

CEDAW contains rights that map onto those contained in both the ICCPR and the ICESCR, such as the civil and political rights to public participation (Article 7) and equality before the law (Article 15), and the socio-economic rights concerning education (Article 10), employment opportunities (Article 11), and healthcare (Article 12). Each of these rights are framed in terms of equality with men and adopts both formal and substantive elements. For example, in relation to education, State Parties must offer boys and girls access to the same vocational and career training, but must also take measures such as: the revision of textbooks and teaching materials which might reflect harmful stereotypes; ensuring that girls have access to the same sports and physical education; and offering adult education programmes to reduce any current educational gap between men and women.

CEDAW also started to chip away at the public/private divide that had been criticised by feminist activists and scholars. The Convention expands on gendered stereotypes and relations surrounding family and maternity. In relation to the modification of gender stereotypes under Article 5, CEDAW requires family education to include a “proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children”. The Convention thus challenges social norms that would relegate women to the primary role of childrearing, instead viewing this as the joint responsibility of both parents in a heterosexual relationship. Article 16 concerns equality between women and men in relation to marriage and the family, and sets out a range of additional rights including: free and full consent to marriage; equal rights and responsibilities within the marriage, including in relation to owning property; equal rights and responsibilities in relation to children; and the right “to decide freely and responsibly on the number and spacing of their children”. Article 16 of CEDAW states:

State Parties must therefore take measures to ensure that within a heterosexual marriage, women and men are situated equally in terms of their family life and decision-making. The inclusion of when (and if) women choose to have children is notable. While the terminology of reproductive rights is not used in the Convention, this right, together with the rights concerning access to family planning and maternity-related healthcare (Article 12), maternity leave (Article 11(b)), and non-discrimination in relation to pregnancy (Article 11(a)) is an important foundation for reproductive rights. However, reproductive rights were not explicitly protected by the Convention, and the development of reproductive rights standards will be discussed later in this chapter.

CEDAW’s Effectiveness

CEDAW was a significant achievement of the global feminist movement. 189 out of 197 countries are States Parties to the Convention, and Englehart and Miller found CEDAW has had a statistically significant effect on the advancement of women’s rights at domestic levels. Looking at its effect, de Silva de Alwis and Verveer  highlight CEDAW’s influence in numerous ways:

“CEDAW and other global processes emanating from the Convention lend legitimacy and credence to the claims made by women’s groups and can help provide the legal framework for urgent needs on the ground. Moreover, the CEDAW offers advocacy groups an opportunity to hold States accountable to the norms enshrined in these treaties, even when these instruments are not fully internalized. The very fact of reporting under the CEDAW tends to have a salutary impact on the women’s rights situation in any given country. The reporting process elevates the conversation on women’s human rights on the national agenda, bringing public attention and debate through the media and allowing women’s rights concerns to be heard at the highest level of government.”

However, some commentators are sceptical of its effect. Bunch views CEDAW as important but inadequate, as many governments do not take it seriously. An example of this is the fact that numerous countries have entered reservations to the Convention, meaning that they sign up to CEDAW as a whole, but disapply some of its provisions. 25 percent of states Parties to CEDAW have issues reservations to it, the majority of which relate to Article 29’s provision for the arbitration of disputes between two (or more) states. In terms of CEDAW’s substantive Articles, Article 16 features among the most common reservations in terms of its influence on family relationships and reproduction. Some of these reservations are very specific, such as Malta and Monaco’s reservation to Article 16(e), the right to decide on the number and spacing on one’s children, to the extent that it would require the legalisation of abortion. Other countries, such as Algeria and Bahrain, have entered reservations in relation to marriage equality and divorce insofar as this would conflict with domestic laws or religious norms.

Mullally argues that the motivation behind these reservations is “a desire  to  limit  the  scope  of  international  law’s  norms  on  gender  equality  and  to  reclaim  authority  to  define,  and  limit,  the  specificity  of  gendered  identities  and  roles.”  Insofar as they allow governments to exempt themselves from advancing gender equality in certain areas, reservations can be considered to be a “critical deficit” of CEDAW. However, some scholars are less sceptical of reservations. Freeman argues that reservations do not necessarily negate the value of ratifying CEDAW, and give the Committee the opportunity for “useful dialogue” on the reserved issues. States Parties can withdraw their reservations as standards on gender-based rights issues change over time, and 20 percent of those holding reservations have withdrawn one or more reservations entirely.

Rather than reservations signaling a lack of engagement around women’s rights, Ahlgren found that “states selectively apply reservations to specific provisions of treaties to avoid having to implement costly changes, where domestic laws are laxer, and courts are likely to enforce the obligations.” Many reservations may therefore be more pragmatic in nature, than because of an opposition to the content of the right. An example of this is India’s reservation to Article 16(2), stating that “the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy”. Issues of practicality also arise in terms of the difficulties in effecting cultural change, such as Niger’s reservations to multiple Articles concerning family relations where they “cannot be applied immediately, as they are contrary to existing customs and practices which, by their nature, can be modified only with the passage of time and the evolution of society and cannot, therefore, be abolished by an act of authority.” Ahlgren, therefore, argues that reservations do not mitigate the impact of the reporting process, as those State Parties remain willing to engage with the Committee.

Intersectionality, TWAIL, and Gender

There are critiques of CEDAW for failing to consider the broad spectrum of women’s experiences. The term ‘intersectionality’ was coined by Crenshaw to critique anti-discrimination law in the US for only accounting for race or sex-based discrimination, erasing the experiences of Black women who faced a complex interaction of both. Crenshaw argued that “the intersectional experience is greater than the sum of racism and sexism” rather than being a simple combination of the two. Thus, “Black women can experience discrimination in ways that are both similar to and different from those experienced by white women and Black men”. Intersectionality has become an important theoretical framework for understanding how individual’s experiences of marginalisation differ based on the interconnectedness of different factors; for example, a non-disabled woman in the UK will have different experiences to a disabled woman in the UK, and both of those women will have different experiences to non-disabled and disabled women in Afghanistan.

The recognition of the need to be responsive to these differences has been central to the development of ‘Third World Approaches to International Law’ (TWAIL) and Third World feminisms. Ramina notes TWAIL refers to “all scholarships that have advocated a postcolonial approach to international law”. TWAIL scholars take a critical view of the international human rights system; for example, Ramina argues that “the historical model of human rights cannot respond to the needs of the Third World except if there is a radical rethinking and restructuring of the international order, abandoning the efforts to universalize an essentially European corpus of human rights”. However, Gandhi suggests that a reorientation is possible, arguing that ‘TWAIL Feminist efforts are required to reorient the discourse on women’s liberation toward more hopeful, inclusive, and imaginative prospects”. The overhaul of international human rights norms from a TWAIL approach would be much more responsive to intersectional experiences of inequality.

CEDAW does acknowledge some differences in experiences of inequality, such as those faced by rural women, and the Committee has increasingly incorporated intersectionality into its communications. For example, in the case Alyne da Silva Pimentel Teixeira v Brazil (which will be explored in more detail in the Reproductive Rights section of this chapter), the CEDAW Committee acknowledge that Alyne da Silva was the victim of ‘compounded discrimination’ as she was discriminated against on the basis of sex, race, and socio-economic status. However, Theilen is critical of the UN’s account of intersectionality, which “emerges only as a de-historicized notion disconnected from a structural critique of power.” The means that conditions and systems that bring about human rights abuses are ignored, so UN bodies such as CEDAW are unable to respond to the root causes of intersectional inequalities.

One example of this is the reinforcement of the gender/sex binary within the Convention, which draws a rigid distinction between men and women. The term ‘sex’ was originally used within international human rights law, but as Yahyaoui Krivenko notes, feminists pushed for a more nuanced view of gender, as the social construction of sex, which was first used by CEDAW in 1989. However, Yahyaoui Krivenko argues that little progress has since been made in terms of recognised the complex and nuanced reality of gender, as international human rights bodies continue to assume “the obviousness and naturalness of the male/female and sex/gender binaries”. This ignores the experiences of people with intersex variations and trans, non-binary, and gender-expansive people who may share different and similar experiences to cisgender women.

It is important in the human rights context that what have been termed ‘women’s rights’ can be realised for all those that need them. For example, trans men and non-binary and gender-expansive people required access to reproductive health services, such as cervical cancer screenings and abortion services, but often face difficulties when these services are women-oriented. Trans women also need to access to rape crisis and domestic violence services, but would be seen excluded from those services by trans-exclusionary views of women’s rights.

Some scholars are optimistic about the potential for CEDAW to encompass intersectional perspectives and move beyond the sex/gender binary. Sandra Duffy views intersectionality as essential for moving beyond the “cisgender matrix” of international law, in turn allowing for “the possibility of further gendered identities asserting themselves as subjects within international human rights law”—especially in relation to gender-based rights. International human rights bodies are already recognising sexual orientation and gender identity as relevant human rights issues, as will be discussed in the LGBTQI+ rights section of this chapter, and there is the possibility for further progress to be made.

In 2016, the Committee handed down its decision in M.W. v. Denmark, the first case where it considered discrimination against a victim who was not a woman—in this case, the seven-year-old son of the woman bringing the application. Tueller highlights that while the CEDAW Committee has previously refused standing for men who alleged to have been victims of gender discrimination, this decision means that the CEDAW Committee is potentially willing to allow any person to bring a complaint (provided that it has merit, of course). Tueller argues that this would move CEDAW further in the direction of transformative gender equality, for example by allowing men to challenge policies—such as paternity leave rules—which assume that women are always the primary caregivers of their children. It also opens the door for the CEDAW Committee to be able to hear cases concerning gender-based discrimination against trans, non-binary, and gender-expansive people, though this has yet to happen.

Specific Issues

Gender-Based Violence

CEDAW makes no explicit reference to gender-based violence (often referred to as violence against women). As Weldon et al note, it was not until the Nairobi Conference in 1985 that gender-based violence was framed as a distinct human rights issue. In 1989, the CEDAW Committee issued its first General Recommendation (No. 12) addressing violence against women, highlighting that States Parties should take measures to “protect women against the incidence of all kinds of violence in everyday life (including sexual violence, abuses in the family, sexual harassment at the work place etc.).”

This was expanded upon in 1992, when the Committee issued General Recommendation No. 19 in response to the fact that “not all the reports of States Parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms”. The Committee stressed that these rights could be violated both by the perpetration of gender-based violence by state actors, and also by the failure to “prevent violations of rights or to investigate and punish acts of violence” by private individuals through due diligence. In General Recommendation No. 19, CEDAW stated that the following rights and freedoms, among others, are impaired by gender-based violence:

The Committee also drew attention to the fact that gender stereotypes play a significant role in violence towards women, as these “prejudices and practices may justify gender-based violence as a form of protection or control of women”. The finding of an Article 5 violation, in conjunction with other rights, has therefore been prominent in the Committee’s jurisprudence on gender-based violence. In 2008, in the case of Vertido v. Philippines, the Committee found a violation of Articles 2 (elimination of discrimination in law), 5 (elimination of gender stereotypes), and 15 (equality before the law) because the domestic courts had relied on harmful myths about rape victims, in this case around the applicant’s level of physical resistance, thus denying her the right to a fair trial. The Philippine state had failed to eliminate discrimination in judicial practices, with the result of denying effective remedies for survivors of gender-based violence.

Three years later, the Committee handed down its decision in another case, R.P.B. v Philippines, concerning judicial gender bias in a rape trial. This case concerned the rape of a 17-year-old deaf and mute Filipina girl. The police failed to make accommodations for her disabilities, and the domestic court acquitted the defendant, again on the basis that she did not physically resist. The Committee found similar violations to Vertido. Notably, this case is an example of the CEDAW Committee’s effective incorporation of intersectionality—highlighting the girl’s intersecting vulnerabilities in terms of gender, disability, and age, and the way that this compounded barriers to justice. This case highlighted the importance of disability rights protections within state responses to gender-based violence.

In 2017, the CEDAW Committee updated its guidance on gender-based violence in General Recommendation No. 35. The Committee noted that gender-based violence “manifests itself on a continuum of multiple, interrelated and recurring forms” requiring states to respond to it as “a social rather than an individual problem”. In addition to the more obvious forms of gender-based violence, such as rape and sexual harassment, the Committee highlighted that this violence can manifest in physical, sexual, psychological or economic harm, or threats of such, as well as violations of sexual and reproductive rights. The Committee also expanded on the relevance of intersectionality in this context, including the acknowledgement that trans and intersex people can experience gender-based violence. This reaffirms the possibility of the CEDAW Committee finding gender-based discrimination against an individual who is not a (cisgender) woman. Therefore, despite CEDAW’s initial lack of consideration for gender-based violence, the Committee has developed a comprehensive, intersectional approach to this issue.

The regional human rights courts, the African Court of Human Rights (ACtHR), the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), take similar approaches to the UN bodies in recognising gender-based violence as infringing the rights contained in their respective treaties. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, also known as the Maputo Protocol, explicitly addresses gender-based violence under multiple rights and obligations, including the right to dignity (Article 3); the right to liberty and security (Article 4), and the obligation to eliminate harmful practices (Article 5). The ACtHR has a limited jurisprudence applying the Maputo Protocol, but addressed an issue with underlying gender-based violence in APDF and IHRD v. Republic of Mali. This case concerned the lower minimum age for marriage for girls than boys and issues relating to consent to marriage. The ACtHR asked Mali to harmonise its laws with relevant international instruments, and implement educational programmes on the harms of early marriage. The African Union has also recently adopted the Convention on Ending Violence Against Women and Girls to strengthen efforts to tackle gender-based violence in the region, including preventative measures such as legal regulation and educational campaigns, developing support systems for victims, and ensuring access to justice.

Within the European system, Opuz v. Turkey was a landmark case in the ECtHR’s jurisprudence, as it was the first time that the Court established that a state’s failure to take action on domestic violence constituted gender-based discrimination. The Court has established positive obligations on states to criminalise non-consensual sexual acts and domestic violence, including in the workplace and by state actors, in a way which does not perpetuate harmful gender stereotypes and discrimination. Across several cases heard by the Court in 2025, the ECtHR also established that criminal proceedings concerning rape and sexual violence can cause secondary victimisation by perpetuating such stereotypes.

Within the Organisation of American States, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, also known as the Convention of Belém do Pará, was adopted in 1994, establishing the rights of women to be free from all forms of violence, including physical, sexual, and psychological violence. These rights were applied by the IACtHR for this first time in 2006, in Castro-Castro Prison v. Peru. This case concerned the excessive use of force by prison officers, which resulted in the deaths of 135 women, including three who were pregnant. The IACtHR has more recently established that the Convention of Belém do Pará applies to members of the LGBTQI+ community, when it addressed the state’s failure to prevent and investigate the murder of a trans woman in Vicky Hernández et al. v. Honduras. The IACtHR is conscious of the impact of intersectional discrimination—for example, in terms of violence against Indigenous women. The IACtHR has also established that gender-based violence violates several rights contained in the American Convention on Human Rights (ACHR):

Overall, as Weldon and Htun observe, the development of human rights standards and recommendations on gender-based violence has resulted in state action—particularly where feminist movements have been able to rely on international recommendations in order to push for policy change. However, gender-based violence remains prolific worldwide, and these standards remain ‘soft law’ rather than binding legal obligations—including under CEDAW, which does not contain explicit rights and obligations on violence against women. Addressing this issue requires committed efforts from states; as Dale argues, gender-based violence is “complex and multifaceted issue that requires action by all governments according to their respective responsibilities as well as cross-sector collaboration”.

Sexual and Reproductive Rights

Issues relating to sexual and reproductive health, such as maternal mortality rates and access to family planning, were raised at all four World Conferences on Women. The Beijing Declaration and Platform for Action recommended that states take action to promote women’s health, including “sexual and reproductive health care, which includes family planning information and services, and giving particular attention to maternal and emergency obstetric care” in order to reduce maternal mortality rates. The Beijing Platform recommended that states “consider reviewing laws containing punitive measures against women who have undergone illegal abortions” but, reflecting the reluctance of some states to view abortion as a reproductive right at the time, also stated that “every attempt should be made to eliminate the need for abortion” through the prevention of unwanted pregnancies. At the International Conference on Population and Development (ICPD), 1994, Cairo, the concept of ‘reproductive rights’ was formally adopted for the first time. The ICPD Programme of Action states that reproductive rights:

CEDAW, drafted before this recognition of reproductive rights, does not explicitly refer to sexual and reproductive health. However, in 1999, the CEDAW Committee issued General Recommendation No. 24 on women and health, affirming that reproductive health was encompassed within the right to health contained in the Convention. The Committee highlighted the importance of access to safe motherhood services and prenatal assistance, sexual health services and information, family planning services, and the removal of criminal offences for abortion under this right. The Committee also highlighted that “special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups”. The CEDAW Committee’s standards on these issues have strengthened over time, as demonstrated in two key cases: Alyne da Silva Pimentel Teixeira v Brazil, and L.C. v Peru.

There are also overlaps between violations of sexual and reproductive rights and gender-based violence. In General Comment 35, published in 2017, the CEDAW Committee noted that acts such as “forced sterilization, forced abortion, forced pregnancy, criminalization of abortion, denial or delay of safe abortion and/or post-abortion care, forced continuation of pregnancy, and abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.” Recently, the CEDAW Committee also adopted the terminology of ‘obstetric violence’—which was first used by feminist activists in Latin America to describe the ill-treatment of women during childbirth. The Committee has considered non-consensual vaginal examinations and surgery, including caesarean sections, to amount to obstetric violence, which results from discriminatory stereotypes around childbirth. The Committee therefore adopts a broad understanding of ‘violence’ which encompasses reproductive health violations as well as other forms. The HRC has established that reproductive rights issues, including abortion, come under several rights contained in the ICCPR, including the right to life and freedom from torture and cruel, inhuman, and degrading treatment. In its 2019 General Comment on the Right to Life, the HRC commented on the importance of measures to reduce and treat sexual transmitted infections and combat maternal and infant mortality. It also dedicated one paragraph to abortion:

The African Union has the only treaty to explicitly recognise reproductive rights. The Maputo Protocol contains a right to health and reproductive rights (Article 14) which includes the right to control one’s fertility, to choose any method of contraception, to be protected against sexually transmitted infections, and to have family planning education. Article 14 also specifies that states must take all appropriate measures to provide healthcare services, including pre-natal, delivery, and post-natal care, adequate food and water, and access to abortion services “in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.” Ngwena has praised the Protocol for its inclusion of abortion, commenting that Article 14 “has the potential to contribute towards transforming the underlying premises of African abortion laws from a crime and punishment paradigm to a reproductive health paradigm” in line with CEDAW’s approach. Many countries in the African region retain restrictions on abortion and other barriers to sexual and reproductive healthcare, but the ACtHR is yet to hear a case concerning a violation of Article 14. However, Ngwena argues that Article 14 has the potential to positively impact sexual and reproductive healthcare in African by framing this as an incentive.

Under the European Convention on Human Rights, sexual and reproductive rights issues are most often considered under the Article 8 right to private life. The ECtHR has found violations of Article 8 for the refusal of prisoners’ access to artificial insemination facilities, the lack of access to preimplantation genetic diagnosis before in-vitro fertilisation, and non-consensual sterilisation. However, the ECtHR applies the margin of appreciation doctrine in cases concerning Article 8, affording more discretion to states on these issues than under the UN system. In the case A, B, C. v. Ireland, the ECtHR distinguished between the three applicants who were challenging Ireland’s almost complete ban on abortion, only finding a violation for the one applicant who should have been entitled to an abortion under existing legal grounds.  For the two applicants who did not qualify for a legal abortion in Ireland, there was no violation – currently, the ECtHR will not direct a state to amend its abortion laws.

The ECtHR has also been less willing than the UN bodies to find harms relating to sexual and reproductive health to amount to torture or cruel, inhuman, and degrading treatment under Article 3 of the European Convention on Human Rights. While the Human Rights Committee has found restrictions on abortion in cases of foetal impairments to amount to cruel, inhuman and degrading treatment, the ECtHR refused to make such a finding in M.L. v. Poland, which concerned the country’s removal of this ground for abortion in 2021. Despite finding non-consensual sterilisation to violate Article 3 where it constituted discrimination against Roma victims, in Y.P. v Russia, the ECtHR only found an Article 8 violation where a woman was sterilised without her consent or knowledge, because she had no additional vulnerabilities. The reluctance of the ECtHR to find violations of Article 3 can be viewed as a deliberate effort to avoid placing stronger obligations on states to guarantee reproductive rights.

The starting point for the consideration of reproductive rights in the Inter-American system was the right to life contained in the ACHR, which stipulates that the right shall be protected “from the moment of conception”. However, the Commission confirmed in 1977 that laws permitting abortion would not violate this right, and the IACtHR later established that a ban on in-vitro fertilisation violated multiple other rights and could not be justified by reference to this clause. In 2016, the IACtHR heard the case I.V. v Bolivia, concerning the non-consensual sterilisation of a refugee after a caesarean section. Notably, the IACtHR found that discrimination on the basis of harmful gender stereotypes had led to the victim’s autonomy being overridden, violating the rights to liberty, privacy, family life, health and access to information, and non-discrimination. Unlike the ECtHR’s approach in Y.P. v Russia, the IACtHR also noted the imbalance of power between doctor and patient, and found that the non-consensual sterilisation amounted to cruel, inhuman, and degrading treatment.

However, the IACtHR is yet to establish that restrictions on abortion will violate the AHRC. In Manuela v. El Salvador, the Court had the opportunity to comment on El Salvador’s complete ban on abortion but declined to do so. The case concerned a pregnant woman who had fallen heavily and was found unconscious and bleeding, with her baby dead in the septic tank. She could not remember what happened, but thought that she had given birth over the toilet. She was arrested on suspicious of an illegal abortion, but it was later established that the baby had been born alive and she was sentenced to 30 years imprisonment for aggravated homicide. While the IACtHR focused on the long sentence imposed for infanticide, and the gender stereotypes that influenced the findings of the trial court, it did not comment on the fact that similar sentences are also imposed for illegal abortion. The Court again avoided commenting on El Salvador’s criminalisation of abortion in Beatriz v El Salvador, which concerned the refusal of an abortion in the context of a fatal foetal impairment, by focusing on the bureaucratic barriers in her case.

There are significant disparities in access to sexual and reproductive healthcare worldwide, and abortion continues to be heavily contested, with some states allowing it on liberal grounds and other retaining complete bans. While the three regional human rights bodies have recognised sexual and reproductive rights to some extent, there are some significant variations in their standards, especially around abortion. As Furgalska and De Londras note, the ECtHR and IACtHR have been particularly reluctant to establish abortion rights standards. This leaves “gaps” in human rights protection that can be exploited by state governments and other actors that are hostile towards sexual and reproductive rights. Moreover, for those not covered by a regional human rights treaty, such as those living across Asia, there are even more barriers to advancing reproductive rights claims.

LGBTQI+ Rights

Within the women’s rights movement, the concerns of lesbian women were historically marginalised. The initial recognition of sexual and reproductive rights framed them largely in relation to heterosexual relationships. At the World Conference on Women in Beijing, a group of women unfurled a banner reading “Lesbian Rights are Human Rights” but it was quickly removed by UN security guards, and the women were escorted out of the hall. Saudi Arabia and the Holy See (and their allies) opposed the inclusion of references to sexual rights or sexual orientation in the Beijing Platform for Action, raising arguments about the traditional family. Negotiations were fraught, and so that the provisions on women’s rights to have control over matters relating to their sexuality could be retained, all references to sexual orientation were eventually removed. However, issues relating to sexuality and gender identity have been increasingly recognised by international human rights bodies, and LGBTQI+ rights can be considered an important aspect of gender-based rights.

In 1994, the year before the Beijing Conference, the Human Rights Committee established that sexual orientation was included within the ICCPR’s non-discrimination provision. Toonen v. Australia concerned Tasmania’s criminalisation of sex between men, and the HRC found that Mr. Toonen’s right to privacy (Article 17) had been violated alongside the right to non-discrimination (Article 2(1)). While Article 2(1) did not make explicit reference to sexual orientation, the HRC stated that this was covered by the word “sex”. In 2011, the HRC heard another Australian case concerning LGBTQI+ rights, this time in relation to gender identity. In G. v. Australia, the HRC found that the refusal to change the sex on the birth certificate of a trans woman was a violation of the right to privacy (Article 17) and the right to equality before the law (Article 26). The HRC noted that to prevent future violations, the state should revise its laws accordingly.

By 2017, most of the UN treaty bodies had recognised rights in relation to sexual orientation and gender identity. In its 2016 General Comment on sexual and reproductive health, the CESCR highlighted that challenges in realising these rights include discrimination against lesbian, gay, bisexual, transgender and intersex persons. For example,

“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.”

As indicated above, the CEDAW Committee has recognised gender-based violence as affecting lesbian, bisexual, transgender, and intersex people. In 2020, the CEDAW Committee handed down its decision in ON and DP v. Russian Federation—the first successful complaint brought to the Committee in relation to sexual orientation. A lesbian couple had been attacked and threatened by two men who also made homophobic insults, but the police and the court disregarded the homophobic motive of the crime. The Committee noted that “discrimination against women is inextricably linked to other factors that affect their lives, including being lesbian women” and that the authorities had failed to “take all necessary measures corresponding to the specific nature of the crime against the authors as lesbian women”. This amounted to violence and discrimination against women on the basis of their sexual orientation, in violation of the Convention. In 2022, the CEDAW Committee found that laws criminalising sex between women also violated provisions of the Convention. This included Article 16 in relation to the formation of a family, and the Committee confirmed that this Article “applies also to non-heterosexual relations”.

Despite the initial lack of protections afforded to LGBTQI+ rights at the UN, treaty bodies now recognise violence and discrimination on the basis of sexual orientation or gender identity to violate numerous human rights. However, CEDAW may not always be the most appropriate avenue for advancing these claims, and there is no specific treaty addressing LGBTQI+ rights. In 2006, a group of human rights experts met in Yogyakarta, Indonesia to establish a set of principles on human rights law in relation to sexual orientation and gender identity, known as the Yogyakarta Principles. These Principles cover the right to equality and non-discrimination, recognition before the law, and issues relating to rights including privacy, life, liberty and security, freedom from torture and cruel, inhuman, and degrading treatment, employment, housing, education, health, freedom of expression, freedom of assembly, and many others. In 2017, ten additional Principles were added (Yogyakarta +10), affirming additional rights including state protection, legal recognition, bodily and mental integrity, freedom from poverty, and cultural diversity. While the Yogyakarta Principles are not legally binding, they have been influential in the work of UN human rights bodies—for example, the HRC made reference to Principle 3, on recognition before the law, in G. v. Australia.

Critiques have been made of the international human rights approach to LGBTQI+ rights for taking a narrow view of gender identity. O’Brien argues that the development of intersex rights requires international human rights law to be more inclusive of bodily diversity and understand gender identity (and discrimination against gender-expansive individuals) beyond binary sex traits. Similarly, Sandra Duffy critiques the prominent understanding of gender identity as a “binary, stable, mono-identity” which ignores individuals with more fluid gender identities. Duffy argues that this framing means that the gendered subject “must display coherent physical gender-related characteristics, and must physically embody and materially perform constitutive acts of gender with their own bodily presentation.” This is not the case for many people, and this highlights the need for international human rights law to develop a more expansive understanding of gender that is not tied to biology and the man/woman binary. O’Brien thus argues that feminists and LGBTQI+ people have much to gain from moving beyond the biological determinism at the heart of international human rights law.  For these critics, this may require an upheaval of international law’s current understandings of gender and gender-based rights.