EMPOWERMENT OR REGULATION: AN EXAMINATION OF WOMEN’S SEXUALITY IN INTERNATIONAL HUMAN RIGHTS LAW
By Kelsey McGowan
I. INTRODUCTION
I will begin by examining how women are framed in international human rights law and the implications of this. Looking at both mainstream human rights documents and women’s rights specifically, the notion of gender stereotyping comes to fruition. These stereotypes are apparent as sexual rights in international law are considered and we see the different elements of sexuality that human rights law values, and those that it rejects. Adopting the lens of rights in healthcare, in which seems to be one of the most prominent frameworks for establishing sexual rights, I will consider how women are both empowered and regulated through this process. Lastly, we look to the ways in which human rights law aims to protect women from the ‘dangers’ of sexuality and if the prioritisation of different aspects of sex, serve as a tool of empowerment, or if it merely contributes to the cycle of unequal power dynamics between men and women.
Traditionally, sexuality in international law has been evaded, potentially as a result of taboo and stigmatised perceptions of sex throughout history. Thanks to the activism of movements by the lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) community, women’s rights advocates, HIV and AIDS advocates, sex worker advocates and the disability rights movements, human rights related to sexuality have been brought to attention in international law.[4]In international law, there is no consensus on a definition of sexuality. The terminology of sexuality takes on various forms in different contexts, but for the purpose of this paper, sexuality is referred to as:
Traditionally, sexuality in international law has been evaded, potentially as a result of taboo and stigmatised perceptions of sex throughout history. Thanks to the activism of movements by the lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) community, women’s rights advocates, HIV and AIDS advocates, sex worker advocates and the disability rights movements, human rights related to sexuality have been brought to attention in international law.[4]In international law, there is no consensus on a definition of sexuality. The terminology of sexuality takes on various forms in different contexts, but for the purpose of this paper, sexuality is referred to as:
[A] central aspect of being human throughout life encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. While sexuality can include all of these dimensions, not all of them are always experienced or expressed. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, legal, historical, religious and spiritual factors.[5]
In this paper sexuality, sex, sexual relations, sexual behaviour and sexual activity are used interchangeably to portray various elements of this aforementioned definition. Sexual rights thus far have been described as grounded in existing human rights law.[6] That is, applying codified human rights instruments to the concept of sexuality, creates sexual rights. Which rights specifically sexual rights relate to differs slightly across several documents.[7] Most glaringly, sexual rights in human rights literature have been associated with sexual health. The World Association for Sexual Health established the Declaration of Sexual Rights in 2014, however to this day there is no codified international law affirming sexual rights. In this paper, ‘regulate’ reflects “to control or direct by rule, principle, method, etc.”[8] On the other end of the spectrum, ‘empowerment’ is defined as “to give power or authority to”.[9] Adopting this lens of regulation and empowerment, this paper argues that human rights law fails to adequately empower women’s sexuality and instead works to regulate sexual behaviours. Through the overwhelming use of violation and protection models, there is little in terms of the positive affirmation of women’s sexual rights.
In order to explore how human rights law empowers or regulates women’s sexuality, it is first worth discussing how human rights law regulates and empowers women more broadly. In looking at the framing of women within international human rights law, stereotypes of women within society are reinforced.
The Universal Declaration of Human Rights (UDHR) is widely recognised as the key instrument in advancing the protection of human rights globally.[10] Women are implicitly included in such rights, however there is a long history of feminist activists fighting for the recognition of women’s equality in public life and as rights-bearers before international law.[11] This fight continues into modern day as feminist critiques of human rights argue that these rights are not universal after all.[12]With the male subject as ‘the norm’, mainstream human rights discourse positions women as ‘the other’. First and foremost, the use of masculine descriptors within the UDHR, places men as the central target of the piece. Despite the explicit reference to “the equal rights of men and women” in the preamble and some articles which address people generally and inclusively,[13] the UDHR maintains phrases such as “mankind”, “man” and “brotherhood” throughout, reinforcing masculinity as the standard. This is then reflected in the International Covenant on Civil and Political Rights (ICCPR)[14] and International Covenant on Economic, Social and Cultural Rights (ICESCR)[15] when referring to the rights bearer by “he” and “him”. These three documents, which make up the International Bill of Human Rights are arguably the most prominent instruments of international law. They each make considerable progress in establishing the rights of women compared to that of which came before. Particularly notable are the articles which outline non-discrimination on the basis of sex;[16] the right to equal rights in marriage;[17] the rights in motherhood[18] and; the right to equal employment.[19] Amongst others, these articles are significant in achieving equality between men and women. The fact that women need to be made equal to men, highlights the characterization of men as the norm and thus women are in a category of ‘less than’. Otto describes the framing of women throughout international law to fall in into three female stereotypes; the wife and mother who needs protection; the woman who is formally equal with men; and the victim subject, produced by colonial narratives of gender and sexual vulnerability.[20] Otto argues that each of these personas is produced by and dependant on the male comparator, as women rely on men for protection and authority.[21]
Activists and human rights bodies over history have played an important role in ensuring human rights law includes women, both as subjects of the ‘universal’ human rights, but also as a specific category, acknowledging the impact of inequality and the unique issues that women can experience.[33] There is much to consider about the tension between the universality of human rights, and the need to recognise and address women’s marginalisation through international law.[34] Irrespective of this debate, it is well established that human rights law traditionally runs as a gendered system, constructed with the male subject at the centre.[35]Prior to, and since the age of non-discrimination against women, international law reinforces gendered stereotypes through its portrayal of women.
Human rights law recognises that in order to achieve equality and empowerment, stereotypes which reinforce these inequalities must be extinguished. Stereotyping can lead to harmful outcomes including the denial of an individual’s dignity or the denial of fair allocation of public goods.[36] As such, it could be argued that gender stereotypes hinder the achievement of women’s rights and thus do not allow for their empowerment. We see throughout human rights documents the portrayal of the ‘woman’ as one specific type. Language used throughout these documents situates the ‘woman’ as a cisgender woman in a heterosexual relationship, who’s role is defined by her position in the family as a mother. This language is damaging, not only to the expectations of women universally, but to the women who are disadvantaged at other intersections of their identity as well, for example Black women, queer women, Indigenous women and disabled women. In contrast, when not portrayed in this manner, women in human rights law are presented as the ‘victim’. Whilst important in recognising the abuses that women face globally, this framing leads to a regulation of women’s rights, rather than addressing the underlying causes of such abuse. Although it is critical to name the human rights violations that happen to women, because they are women; the projection of victimhood does not seek to empower women, it seeks to reinforce the cyclical power imbalances that lead to violations in the first place.
This paper is not arguing that women’s rights have not made substantial progress over the years, nor is it saying that international human rights law does not have benefit to women and the achievement of women’s rights and equality. It is contended that human rights law is constructed on the foundation that male is the norm and as a result, women’s rights exist in specific categories relating to their womanhood. These stereotypes then act as a barrier to the advancement and empowerment of women’s human rights.
To establish whether human rights law empowers or regulates women’s sexuality, it is important to look at the discourse surrounding sexuality in such laws. Not many international treaties explicitly reference sexual rights.[37] Most of the dialogue focuses on different elements which fall under the realm of sexuality, but do not adequately cover all the different aspects encapsulated by the term ‘sexual rights’. The regulation or empowerment of sex is explored through the different categories in which it appears throughout international law.
The clearest ways in which sex is informed in human rights law is when it is for the purpose of reproductive and family rights. Traditional mainstream human rights mechanisms make little reference to reproduction itself and instead focus merely on the concept of family, motherhood and childhood.[38] The UDHR, affirms the rights of the child “whether born in or out of wedlock”.[39] This language, although protecting the right of a child born out of marriage, stems from a negative perception of sexual activity between unmarried people. This likely reflects the social and cultural contexts at the time of which the UDHR was born, when premarital sex was taboo. This perspective which views the purpose of sex as procreation, is reproduced throughout other human rights documents which emphasise the need to protect the family unit.[40] With time, as human rights activism worked to equalise men and women’s rights, there was a focus on equal rights within this family system, moving away from traditional gender roles. At this time, reproductive rights began appearing in these discussions.[41]
The ICPD which is one of the more progressive human rights documents when it comes to sex, also emphasises the importance of reproductive rights.[42] Although not only addressing reproduction and family planning in its discussion of sexuality, the ICPD talks about equal access to reproductive health care, family planning, sexual health and decision making capacity in relation to sex and reproduction.[43] Notably, ICPD states that “reproductive health…implies that people are able to have a satisfying and safe sex life…”,[44]being a fundamental statement in the advancement of sexuality within human rights law. It should be noted though, that this statement still falls under the realm of rights related to reproduction. The Beijing Declaration similarly discusses sex related to reproduction, however echoes the ICPD terminology of “satisfying and safe”,[45] whereas CEDAW addresses merely reproductive, family planning and maternal rights.[46]
The other most prominent way sexuality appears in human rights law is in protections against sexual violence. Most human rights documents now address various forms of such violence, including sexual harassment and exploitation, sexual abuse, trafficking, forced prostitution, female genital mutilation (FGM), child marriage and sexually transmitted diseases (STD’s).[48] Underlying many of these issues is the power imbalances and inequality between men and women which human rights law seeks to alleviate. There is a clear link between this violence and attitudes about women.[49] In this sense, human rights law exists to protect women from such violations. Violence against women has been such a pressing issue worldwide, that CEDAW have made various General Recommendations addressing different aspects of this violence.[50]
Both the ICPD and Beijing Declaration discuss the increased vulnerability of women to many of these concerns and note the importance of sexual health education and access to services when addressing issues such as AIDS/HIV, STD’s, high risk sexual behaviour and unwanted pregnancies.[51] While not inherently violent, the language of these concerns frame them as ‘dangers’ in which women need protecting from. A promotional and affirmative discussion on women’s sexual rights would address these issues and empower women, rather than reinforcing the perception of women’s vulnerability.
Women’s right to be free from violence and violation of these rights is necessary, however the perception of sex as dangerous for women has allowed for paternalistic laws which fail to promote women’s rights.[52] It is argued that many matters of sexual violence are not a ‘women’s issue’ as such, but in fact are an issue stemming from inequality, power imbalance and control by those who perpetuate it and the attitudes of society which enable it.
Human rights advancements over time have fleetingly discussed sexual rights beyond reproduction, healthcare and violence, although this is very limited. No treaties or declarations have addressed sexual rights specifically as a human right. The ICPD was ground-breaking in its use of the language, ‘safe and satisfying sex life’. The word ‘satisfying’ was the first time any kind of sexual rights has been connected to pleasure. The ICPD includes the concept of sexual health, which is explained as “the enhancement of life and personal relations…not merely counselling and care related to reproduction and [STD’s]”[53].
Whilst not always named as sexual health, women’s health relating to sexuality is evident in various ways throughout international law. Sexual health and sexual rights go hand in hand, with the World Health Organisation (WHO) including physical, emotional, mental and social wellbeing as elements of the working definition for sexual health.[56] This definition includes language of “pleasurable and safe sexual experiences free of coercion, discrimination and violence” in addition to affirming sexual rights as a crucial part of sexual health.[57]
The other element of individuals’ rights to sexual healthcare is in discussions of sexually related disease and illness. Although not as prominent as reproductive healthcare, many human rights documents address HIV/AIDS and other STD’s.[70] A preventative approach is generally expressed as the language aims to reduce the impact of women’s ill-health. The Beijing Declaration states that girls are more vulnerable than boys to STD’s due to the “consequences of unprotected and premature sexual relations.”[71] It then goes on to talk about girls’ pressure to engage in sexual activity.[72] It is clear in this language that female vulnerability is reiterated, as opposed to an empowerment of young women and their sexual agency.
Despite the definition of sexual health including pleasure[75], human rights law does not adequately address sexual health outside of the aforementioned aspects. Much of the literature explores the tensions between pleasure and danger in sex.[76] Despite efforts to empower women in health care, human rights law largely reproduces the notion that sexuality outside of (heterosexual) marriage is dangerous.[77]
Nowhere in international human rights explicitly speaks to the rights involved in reproduction and family planning for same sex relationships. In fact, many states have made reservations which declare they do not endorse homosexual sexual behaviour and that sexual rights refer solely to heterosexual relationships.[78] To say that women are sexually empowered through human rights law, would fail to recognise the exclusion of women who do not engage in heterosexual relationships. Human rights law does not address any form of sexual rights outside of male-female sexual relations. Just as women’s rights have the male comparator, sexual rights are based on a heteronormative framework. Even in the realm of same-sex activism, sexual rights have focused on male-to male sexuality.[79] Some academics argue that much of the case law relating to queer sexual rights, has been unresponsive to the rights of lesbian women, reinforcing patriarchal norms and values.[80] In an examination of lesbian rights, Hodson compared case law under the European Human Rights Court, in which one case about male homosexuality framed men’s sexual agency as an “innate, intimate part of their being”, compared to a case of a lesbian couple in which the court relied on medical authorities to declare the applicant’s sexuality and relationship.[81] This again, raises the question of how empowered women can feel under a system which only views sexuality as valid when a man is involved.
Sexual danger in international law has sat on either end of the spectrum. Addressing violations such as sexual violence is necessary in the fulfilment of women’s rights. On the other hand, sexual relations which are not necessarily dangerous in nature, have been observed in human rights law as reinforcing notions of female vulnerability. The concept of ‘dangerous’ sex has justified protections from states which enforce paternalistic laws and maintain power imbalances between genders.[84] As previously discussed, sexual relations outside of heterosexual sex and outside of marriage have traditionally been labelled as abnormal, creating the perception of acceptable and unacceptable sex.
The notion of sexual hierarchies is explained as “a class system in which different sexual practices, expressions, identities and communities are ranked, from the most normative and socially approved to the most stigmatised and despised”.[85] This forms the basis for our understanding of acceptable and unacceptable sex. When advocating for women’s rights, there is often a focus on the harm that women face. Often this involves depicting the image of ‘the victim’. The idea of an innocent and wholesome victim unintentionally supports the power of the sexual hierarchy.[86] The victim-subject is based on gender essentialism, representing the white, western, middle-class, heterosexual woman.[87] In this discourse, intersectional identities are ignored, and power dynamics are reproduced.
We see unacceptable sex mentioned both explicitly, by some states in their reservations in certain sexual practices, and implicitly, in the invisibility of diverse sexuality in human rights law. Many states across the globe have criminalised various types of sexual activity, such as homosexual relations and sex work.[88]Laws that criminalise consensual sexual behaviour can have detrimental effects on individuals, particularly in relation to their contact with justice systems and accessing healthcare.[89] This reinforcement of acceptable versus unacceptable sex leads to discriminatory and regulatory notions of sexual rights. Even within heterosexual relationships, there are many sexual practices which exist beyond the purpose of procreation, for example masturbation, oral and anal intercourse and variations of bondage and eroticism.[90] The lack of discussion on these practices in sexual rights minimises the importance of safety, diversity and enjoyment in empowering sexuality.[91] It is also important to consider how the framework of sexual health can reinforce notions of unacceptable sex. Academics in sexual rights have spoken to the insufficiency of linking sexuality to health as it can lead to the medicalisation of sexuality and/or use health to exclude certain sexual practices as unhealthy.[92]
Internationally, activists throughout time have called for the decriminalisation of sex work.[93] Many states have adopted regulatory measures to reduce harms related to sex work. Nevertheless, women and sex worker activists have argued against regulatory systems, adopting a ‘pro-sex’ outlook.[94] These groups argue that “casual anonymous sex is okay, whether paid for or not”.[95] Conversely, other feminist groups consider sex workers as victims of male oppression.[96] The notion of morality is a key factor in these discussions with one piece of literature arguing that the criminalisation of sex work in Canada draws on paternalistic gender discourse, framing solicitation as a threat to ‘good’ women who may as a result be subjected to harassment.[97] The author maintains that in this dialogue, it is then only ‘good’ women (that is, women who live up to the standards of decent female behaviour) who deserve protection by the state.[98] This mentality reflects gendered stereotypes of women and stigma associated with any woman who is sexual, let alone one who is sexually empowered.
If the argument for regulation stems from the protection of women, the situations in which women are at risk need to be analysed. Where the concern is violence, the issue needs to be recharacterized as an issue of those who perpetuate it. The underlying factors which contribute to violence against women, that is power imbalances and negative perceptions of women, must be the target of regulation and reform. Instead the focus on demonising women who choose to engage in sex work only reinforces discriminatory attitudes against women. Overs puts it suitably when highlighting that the woman’s role in the relationship between sex worker and client, is categorised into a homogeneous label, whilst no word exists to depict the client.[99] It is no surprise that women who engage in sex work are criminalised and degraded, when their clients (who are typically men) are not.[100] CEDAW’s General Recommendation No.38 on Trafficking in Women & Girls has been criticized by some feminists as regressive in recognising women as autonomous beings with rights and reason, instead viewing them as vulnerable beings in need of protection from the “evils of prostitution”.[101]Additionally, heightening sex workers vulnerability to violence and abuse including by the criminal justice system.[102] It is argued by these feminists that it is patriarchal attitudes which induce exploitation, causing trafficking, and that the conflation of sexual exploitation (which is unclearly defined) with sex work creates impunity for violations of sex worker’s human rights.[103]
The negative connotations associated with sex work increase women’s risk, as there is often a need to hide their actions from healthcare professionals and police due to its unlawful nature.[104] Furthermore, these women often become the target of a range of human rights violations and are not protected by authority, simply because of their status as sex workers.[105] It is impossible to move towards the empowerment of women as sexual beings, if a particular sub-group of women are excluded from that movement. It is also important to consider that many women move to sex work as the only way to financially support themselves and their families.[106] This constitutes once again a need to reflect on the underlying reasons which lead to particular behaviours. That is not to say that a woman’s motive for engaging in sex work should be relevant. In order to achieve empowerment, women should be granted full autonomy and agency over their bodies and sexual relations, including whether or not there is income involved.
Some of the worst violations of human rights globally are those involving sexual violence. Human rights activism on the elimination of violence against women traces back to the beginning of the human rights movement. CEDAW was significant in its focus on eradicating sexual violence[107]. It is well established that gender-based violence stems from power imbalance and inequality between men and women.[108] Across the globe, this violence manifests in various forms including sexual harassment, forced prostitution, FGM, trafficking, sexual abuse and rape. Human rights law aims to protect women from these violations. This paper affirms the absolute importance of enforcing various measures to prevent such horrific acts. It is also important though to address the foundational concerns which lead to this violence. It is with no doubt that stereotypes and microaggressions about women lead to perceptions which permit men to assert power, domination and control over women. The Beijing Declaration stresses the failures in educating young men on women’s self-determination[109]. Additionally, that women’s rights to privacy, confidentiality, respect and informed consent are not considered in sexual relations.[110] MacKinnon claims that “women are more likely to be property than own any”, highlighting the historic (and ongoing) perceptions of women as objects, rather than autonomous beings in their own right.[111]
The private/public dichotomy is key in human rights protections against sexual violence. Activism has been victorious in highlighting the violence that many women suffer in the private sphere and the obligation of states to prevent this violation, however some argue that the construction of the victim-subject has not empowered women.[112] The United Nations General Assembly adopted the Declaration on the Elimination of Violence against women, in recognition of the necessity to eliminate gender-based violence as part of CEDAW’s aim to eliminate discrimination against women.[113] The CEDAW Committee also employed various General Recommendations relating to different aspects of violence against women.[114] General Recommendation No.19 emphasises the attitudes and stereotypes which place women as subordinate to men; perpetuating violence or coercion under the justification of protection of women.[115] Significantly, CEDAW also lays out in this general recommendation the propagation of pornography and depictions of women as sexual objects leading to gender-based violence.[116] This sexualisation of women has damaging effects. It is important though, that in order to combat this portrayal of women as sexual objects, women’s sexual agency is not suppressed, resulting in women being labelled negatively when they do engage in consensual sexual behaviours and thus creating disempowering regulations around women’s sexuality.
General Recommendation No.35, updating No.19, is substantial in acknowledging the intersectional identities of many women and the various factors that impact women of diverse identities, including disability, ethnicity/race, Indigeneity, socioeconomic status, sex work, LGBTQIA+ identity, women in armed conflict and more.[117] We see a change in the language traditionally used to talk about violence against women in this general recommendation. Rather than language of vulnerability and women’s victimisation, the CEDAW Committee speaks to men’s entitlement and privilege, social norms regarding masculinity, asserting male control or power, enforcing gender roles and unjust punishing what is considered to be unacceptable female behaviour.[118] Understanding gender-based violence as an issue of men, rather than a women’s problem, is critical in reconstructing societal perceptions. Recognising both the implicit and explicit ways in which states accept gender-based violence is crucial in breaking the cycle of violence. Aspects of empowerment are seen throughout this document when acknowledging the need for the participation of diverse women in implementing measures to promote female agency and autonomy.[119] Additionally, highlighting the need to repeal any laws (including religious and Indigenous laws) which allow procedures that focus on virginity (i.e. FGM), legal defences and mitigating factors based on religion or male privilege and laws that deprive women of legal capacity (i.e. guardianship laws, protective custody and immigration laws).[120] This general recommendation, albeit quite recent, has taken a substantial step forward in the empowerment of women in matters relating to sexual and gender-based violence.
We now look to the case of R v Ewanchuck, where a 17-year-old Canadian girl was sexually assaulted, and the perpetrator was acquitted on the defence of implied consent.[121] Justice L’Heureux-Dubé overturned this decision, highlighting the sexualisation of the complainant by the lower courts which denied women’s sexual agency and privileged male sexuality. Cook and Cusack’s dissection of this case finds various sexual stereotypes about women (that is that; women are sexually passive; women should physically resist sexual assault and when they don’t it signals consent; women should dress modestly and when they don’t they are responsible for their assault; women are in a state of perpetual consent; when a woman says no, she is really saying yes or persuade me) and about men (men are unable to control their urges; they are not responsible for sexual misconduct).[122] This case demonstrates how attitudes about women’s sexuality lead to sexual violence. Furthermore, how law which confirms notions of female vulnerability, perpetuates this violence. In order to reduce the risk of women experiencing sexual violence, it is clear that human rights law needs to address this power dynamic. To do this, women must be empowered and not regulated in the name of protection.
The examination of various human rights instruments, including mainstream and women’s rights exhibits a lack of empowerment mechanisms for the advancement of women’s sexuality, and thus a full realisation of women’s human rights. Women’s sexuality is inherently related to sexual rights and human rights law must enhance the promotion of these rights in order to achieve female sexual empowerment. Currently, much of international law regulates behaviours relating to sexuality, maintaining underlying assumptions about sexuality. This paper explored how human rights frame the female subject in society and how this construction perpetuates negative stereotypes about women, hindering the equalisation of power balances between genders. After examining the ways in which aspects of sexuality are addressed throughout international law some key themes were identified; reproductive health and family planning; protection against sexual violence and (minimally) pleasurable sex. International law overwhelmingly addresses reproductive rights as the umbrella for sexual rights. We see a move to the empowerment of women’s reproductive rights and roles within the family, however less so when it comes to discussions of STD’s, safety and pleasure as part of women’s right to sexual health. Lastly the dichotomy of acceptable and unacceptable sex was discussed as sexual danger was examined, highlighting the reinforcement of women’s vulnerability, resulting in paternalistic regulations which prohibit sexual activity seen as criminal, indecent or risky.
It is evident that sexual danger has driven much of the advancement in sexual rights and there is little in terms of a positive affirmation of sexual rights. The tension lies in ensuring women’s inequality which leads to violation and harm is addressed, whilst still empowering women’s sexual desire, agency and autonomy.[123] A comprehensive approach to sexual rights would embody both violations and promotional models.[124] This paper contends that regulation of sexual rights in general needs to be limited and a more empowering approach should be established. Particularly for women, whose sexual identity is often disempowered through discriminatory stereotypes and attitudes. It is also important to note the increased marginalisation of transgender women and gender diverse people, who experience additional regulations and discrimination under human rights law. Sexual rights need to encompass all aspects of sexuality equally and remove stigmas and stereotypes which disadvantage certain subsets of people. In order to achieve full empowerment of women’s sexuality, there needs to be a greater focus on sexual expression and freedom. Women need to be recharacterized under human rights law as sexual beings with agency and autonomy.
[1] Universal Declaration of Human Rights, UNGA Res 217 A (III), UN GAOR, UN Doc A/810 (10 December 1948) (‘UDHR’).
[2] Diane Richardson, ‘Sexuality and Feminism’ in V Robinson and D Richardson (eds), Introducing Women’s Studies (Palgrave, London 1997) 152.
[3] See Christine Bateup, ‘Can Reproductive Rights be “Human” Rights? Some Thoughts on the Inclusion of Women’s Rights in Mainstream Human Rights Discourse’ (2000) 6(2) Australian Journal of Human Rights 33.
[4] Eszter Kismödi et al, ‘Sexual Rights as Human Rights: A Guide for the WAS Declaration of Sexual Rights’ (2017) 29(1) International Journal of Sexual Health 1.
[5] ‘Sexual and Reproductive Health and Research (SRH), including the Human Reproduction Programme (HRP)’ World Health Organisation (WHO) (Web Page, 8 June 2021) <https://www.who.int/teams/sexual-and-reproductive-health-and-research/key-areas-of-work/sexual-health/defining-sexual-health> (‘Sexual and Reproductive Health and Research’).
[6] Declaration of Sexual Rights, World Association for Sexual Health (WAS) WAS Advisory Council (March 2014).
[7] See, eg, WHO, ‘Sexual and Reproductive Health and Research’ (n 5).
WHO states:
Rights critical to the realization of sexual health include:
· the rights to equality and non-discrimination
· the right to be free from torture or to cruel, inhumane or degrading treatment or punishment
· the right to privacy
· the rights to the highest attainable standard of health (including sexual health) and social security
· the right to marry and to found a family and enter into marriage with the free and full consent of the intending spouses, and to equality in and at the dissolution of marriage
· the right to decide the number and spacing of one's children
· the rights to information, as well as education
· the rights to freedom of opinion and expression, and
· the right to an effective remedy for violations of fundamental rights.
[8] Macquarie Dictionary (online at 8 June 2021) ‘regulate’ (def 1).
[9] Ibid ‘empowerment’ (def 1).
[10] UDHR (n 1)
[11]Dianne Otto, ‘Disconcerting “Masculinities”: Reinventing the Gendered Subject(s) of International Human Rights Law’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing, 2005) 105 (‘Disconcerting Masculinities’).
[12] See also Ibid; Bateup (n 3).
[13] UN Women, ‘A Brief History of the Commission on the Status of Women’, Commission on the Status of Women (Webpage, 8 June 2021) <https://www.unwomen.org/en/csw/brief-history>.
[14] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[15] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
[16] Ibid art 2-3; UDHR (n 1) art 2; ICCPR (n 14) 2 art 2–3, 25-26.
[17] UDHR (n 1) art 16; ICCPR (n 14) art 23.
[18] UDHR (n 1) art 25; ICESCR (n15) art 10.
[19] ICESCR (n 15) art 7.
[20] Otto, Disconcerting Masculinities, (n 11).
[21] Ibid.
[22] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature on 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’).
[23] Ibid; Optional Protocol to the Convention of the Elimination of All Forms of Discrimination against Women, opened for signature on 10 December 1999, 2131 UNTS 83 (entered into force 22 December 2000) (‘CEDAW Optional Protocol’).
[24] CEDAW (n 22).
[25] Ibid.
[26] Ibid.
[27] ‘Women’s Rights are Human Rights: New York and Geneva, 2014’ United Nations Human Rights: Office of the High Commissioner (Report, 8 June 2021) <https://www.ohchr.org/documents/events/whrd/womenrightsarehr.pdf> (‘Women’s Rights are Human Rights’).
[28] UN Population Fund, Report of the International Conference on Population and Development, Cairo, A/CONF.171/13/Rev.1 (13 September 1994) (‘ICPD’).
[29] See United Nations Population Fund, ‘Overview’ International Conference on Population and Development (Webpage, 8 June 2021) <https://www.unfpa.org/icpd>.
[30] ICPD (n 28).
[31] United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20 (15 September 1995) (‘The Beijing Declaration’).
[32] See UN Women, ‘The Beijing Platform for Action: Inspiration Then and Now’, The Beijing Platform for Action Turns 20, (Webpage, 8 June 2021) <https://beijing20.unwomen.org/en/about>.
[33] Women’s Rights are Human Rights (n 27).
[34] Ibid.
[35]Bateup (n 3).
[36] Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2010).
[37] Alice M Miller, ‘Sexual but Not Reproductive: Exploring the Junction and Disjunction of Sexual and Reproductive Rights’ (2000) 4(2) Health and Human Rights 68
[38] UDHR (n 1) art 25(2); ICESCR (n 15) art 10(2).
[39] UDHR (n 1) art 25(2).
[40] See ICESCR (n 15) art 10; ICCPR (n 14) art 23; CEDAW (n 22).
[41] The Beijing Declaration (n 31) IV(C).
[42] ICPD (n 28) VII.
[43] Ibid VII A(7.2).
[44] Ibid.
[45] The Beijing Declaration (n 31).
[46] CEDAW (n 22).
[47] Miller (n 37).
[48] See ICPD (n 28); CEDAW (n 22); The Beijing Declaration (n 31); UNGA, Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993) (‘Vienna Declaration’); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).
[49] The Beijing Declaration (n 31); Reducing Violence Against Women and Their Children (Research Informing the Development of a National Campaign), November 2015; Committee on the Elimination of Discrimination against Women, General Comment No.35 on Gender-based Violence Against Women, updating General Recommendation No.19, 67th sess, UN Doc. CEDAW/C/GC/35 (26 July 2017) (‘General Recommendation no. 35’).
[50] See Committee on the Elimination of Discrimination against Women, General Comment No. 12 on Violence against Women, 8th sess, UN Doc.A/44/38 (1989) (‘General Recommendation no. 12’); Committee on the Elimination of Discrimination against Women, General Comment No. 14 on Female Circumcision, 9th sess, UN Doc. A/45/38 (1990) (‘General Recommendation no. 14’); Committee on the Elimination of Discrimination against Women, General Comment No. 15 on Women and AIDS, 9th sess, UN Doc. A/45/38 (1990) (‘General Recommendation no. 15’); Committee on the Elimination of Discrimination against Women, General Comment No. 19 on Violence Against Women, 11th sess, UN Doc.A/47/38 (1993) (‘General Recommendation no. 19’); Committee on the Elimination of Discrimination against Women, General Comment No. 21 on Equality in Marriage and Family Relations, 13th sess, UN Doc. A/49/38 (1994) (‘General Recommendation no. 21’); Committee on the Elimination of Discrimination against Women, General Comment No. 24 on Article 12 – Women and Health, 20th sess, UN Doc. A/47/38 (1999) (‘General Recommendation no. 24’); Committee on the Elimination of Discrimination against Women, General Comment No. 34 on The Rights of Rural Women, 63rd sess, UN Doc. CEDAW/C/GC/32 (7 March 2016) (‘General Recommendation no. 34’); Committee on the Elimination of Discrimination against Women, General Comment No. 38 on Trafficking in Women and Girls in the Context of Global Migration, 77th sess, UN Doc.CEDAW/C/GC/38 (2 November 2020) (‘General Recommendation no. 38’); General Recommendation no. 35 (n 49).
[51] The Beijing Declaration (n 31); ICPD (n 28).
[52] Dianne Otto, ‘Between Pleasure and Danger: Lesbian Human Rights’ (2014)(6) European Human Rights Law Review 618 (‘Between Pleasure and Danger’); Ratna Kapur ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) Harvard Human Rights Journal 1.
[53] ICPD (n 28) VII(a)(7.2).
[54]International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (March 2007) (‘Yogyakarta Principles’).
[55] Ibid.
[56] Sexual and Reproductive Health and Research (n 5).
[57] Ibid.
[58] CEDAW (n 22).
[59] Bateup (n 3).
[60] Vienna Declaration (n 48).
[61] ICPD (n 28).
[62] The Beijing Declaration (n 31).
[63] Aart Hendriks, ‘The Right to Health: Promotion and Protection of Women's Right to Sexual and Reproductive Health Under International Law: The Economic Covenant and the Women's Convention' (1995) 44(3) American University Law Review 1123.
[64] Bateup (n 3).
[65] ICPD (n 28); The Beijing Declaration (n 31).
[66] General Recommendation No. 24 (n 50) 31(c).
[67] ICPD (n 28) VIII(c)(8.25); The Beijing Declaration (n 31) (c)106(k).
[68] Committee on the Elimination of Discrimination against Women, Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc CEDAW/C/OP.8/GBR/1 (23 February 2018) I (1).
[69] Ibid.
[70] See ICPD (n 28) VII (C); The Beijing Declaration (n 31) 83(l).
[71] The Beijing Declaration (n 31) C (93).
[72] Ibid.
[73] General recommendation no. 24 (n 50) 12 (1)(18).
[74] Ibid.
[75] Sexual and Reproductive Health and Research (n 5).
[76] See Otto, Between Pleasure and Danger (n 52).
[77] Ibid.
[78] See The Beijing Declaration (n 31).
[79] Miller (n 37).
[80] Loveday Hodson ‘Sexual Orientation and the European Convention on Human Rights: What of the “L” in LGBT? (2019) 23(3) Journal of Lesbian Studies 383, DOI: 10.1080/10894160.2019.1598208.
[81] Ibid.
[82] Sexual and Reproductive Health and Research (n 5).
[83] Constitution of the World Health Organisation, opened for signature 22 July 1946 (entered into force 7 April 1948).
[84] Hodson (n 79).
[85] Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in CS Vance (ed.) Pleasure and Danger: Exploring Female Sexuality (Boston Routledge, 1984) 267.
[86] Alice M Miller and Carole S Vance, ‘Sexuality, Human Rights and Health’ (2004) 7(2) Health and Human Rights 5.
[87] Kapur (n 52).
[88] Alice M Miller et al, ‘Sexual Rights as Human Rights: A Guide to Authoritative Sources and Principles for Applying Human Rights to Sexuality and Sexual Health’ (2015) 23(46) Reproductive Health Matters 16, DOI: 10.1016/j.rhm.2015.11.007; Miller (n 37).
[89]Miller et al (n 87).
[90] Miller (n 37).
[91] Ibid.
[92] Ibid.
[93] See Eurydice Aroney and Penny Crofts, ‘How Sex Worker Activism Influenced the Decriminalisation of Sex Work in NSW, Australia’ (2019) 8(2) International Journal for Crime, Justice and Social Democracy 50; Cheryl Overs, ‘Prostitution: We Call it Sex Work Now. (A Comment)’ (1989) 6 Lilith: A Feminist History Journal 64.
[94] Overs (n 93).
[95] Ibid.
[96] See Ibid; Aroney and Crofts (n 93)
[97] Leslie Anne Jeffrey, ‘Prostitution as a Public Nuisance: Prostitution Policy in Canada’ in J Outshoorn (ed.) The Politics of Prostitution: Women’s Movements, Democratic States and the Globalisation of Sex Commerce (Cambridge University Press, 2004).
[98] Ibid.
[99] Overs (n 93).
[100] Cook and Cusack (n 36).
[101] ‘A Critique of CEDAW General Recommendation No. 38 on Trafficking in Women and Girls in the Context of Global Migration’ IWRAW Asia Pacific (Webpage, 8 June 2021) < https://www.iwraw-ap.org/wp-content/uploads/2021/01/IWRAW-AP-Analysis-of-CEDAW-GR-38.pdf> (‘Critique of CEDAW General Recommendation No.30’).
[102] Ibid.
[103] Ibid.
[104] Miller et al (n 88).
[105] Ibid; General Recommendation No.19 (n 50).
[106] Cook and Cusack (n 36).
[107] See CEDAW (n 22).
[108] See United Nations Declaration on the Elimination of Violence Against Women GA Res 48/104, UN Doc A/RES/48/104 (23 February 1994) (‘UN Resolution’); General Recommendation No.19 (n 50); General Recommendation No. 35 (n 50).
[109] The Beijing Declaration (n 31) C (93).
[110] Ibid.
[111] Catherine A MacKinnon, ‘On Torture’ in Catherine A MacKinnon (ed), Are Women Human?: And Other International Dialogues (Belknap, 2006) 17.
[112] See Kapur (n 52).
[113] UN Resolution (n 108).
[114] See General Recommendation No. 14 (n 50); General Recommendation No. 19 (n 50); General Recommendation No. 24 (n 50); General Recommendation No. 35 (n 50); General Recommendation No. 38 (n 50).
[115] General Recommendation No. 19 (n 50) 11.
[116] Ibid 12.
[117] General Recommendation No. 35 (n 50) 12.
[118] Ibid 19.
[119] Ibid 28.
[120] Ibid 29 (c).
[121] R v Ewanchuk [1999] 1 SCR 330.
[122] Cook and Cusack (n 36).
[123] Otto, Between Pleasure and Danger (n 52).
[124] Miller (n 37).
II. FRAMING OF WOMEN IN INTERNATIONAL HUMAN RIGHTS LAW
A. Mainstream Human Rights
This is not to say it isn’t necessary to distinguish women from men in international law, as it is impossible to achieve empowerment for women without first acknowledging the patriarchal system in which we live. In discussions of women’s empowerment and equality, it would be counterproductive to undermine the significance of tools which acknowledge and attempt to diminish the marginalisation and oppression of women. In fact, it is this very reason that equality within international law must exist. It is however, important that such hierarchies are not reinforced by the very tools which aim to dismantle them.
In acknowledging the oppression women face, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was established to bridge the gender gap and ensure women bear these universal rights without any form of discrimination.[22] CEDAW and the Optional Protocol to the Convention were significant steps forward in the women’s rights movement.[23] Reaffirming the provisions for equality between men and women in mainstream human rights documents, the convention reaffirms that discrimination on the basis of sex is a violation of humanity’s universal rights.
CEDAW importantly highlights the contributions of women within the family and society, however declares the need to change traditional understandings of the roles of women and men.[24] This is momentous in beginning to deconstruct gender stereotypes within international law and frame women as people in their own right, outside of the family structure. CEDAW then lists 30 articles which mandate the non-discrimination of women in various arenas.[25] Whilst acknowledging the importance of these articles, CEDAW echoes the male comparator seen in mainstream human rights documents, as it uses terminology such as “…equal rights with men…” and “on a basis of equality of men and women…”[26] to depict non-discrimination of women. Through a lens of empowerment, we do not see the reconstruction of women as autonomous rights-bearers, nor do we see a positive affirmation of women’s rights. Rather, Otto’s three female personas are once again reinforced through international law. Notwithstanding, CEDAW is significant in its move beyond equality in the sense of gender-neutral norms and laws, which merely guarantee identical rights to men. Instead, CEDAW uses the language of substantive equality, which recognises there are underlying causes of inequality which need to be addressed[27].
Another revolutionary moment for women in human rights history, is the International Conference on Population and Development and Programme of Action in Cairo (ICPD).[28] The ICPD is arguably one of the most significant human rights documents to set out the necessity of empowering women and fulfilling their human rights.[29] Language of empowerment, control, autonomy and decision making capacity are significant in acknowledging the power imbalances that lead to gender inequality.[30] This discourse set the foundation for future human rights documents which echo the role of power in empowerment. The Beijing Declaration and Platform for Action (The Beijing Declaration)[31] was another defining moment in reinforcing the work of women’s rights activists across the globe and working toward the advancement of rights for women.[32]
B. Women’s Rights
CEDAW importantly highlights the contributions of women within the family and society, however declares the need to change traditional understandings of the roles of women and men.[24] This is momentous in beginning to deconstruct gender stereotypes within international law and frame women as people in their own right, outside of the family structure. CEDAW then lists 30 articles which mandate the non-discrimination of women in various arenas.[25] Whilst acknowledging the importance of these articles, CEDAW echoes the male comparator seen in mainstream human rights documents, as it uses terminology such as “…equal rights with men…” and “on a basis of equality of men and women…”[26] to depict non-discrimination of women. Through a lens of empowerment, we do not see the reconstruction of women as autonomous rights-bearers, nor do we see a positive affirmation of women’s rights. Rather, Otto’s three female personas are once again reinforced through international law. Notwithstanding, CEDAW is significant in its move beyond equality in the sense of gender-neutral norms and laws, which merely guarantee identical rights to men. Instead, CEDAW uses the language of substantive equality, which recognises there are underlying causes of inequality which need to be addressed[27].
Another revolutionary moment for women in human rights history, is the International Conference on Population and Development and Programme of Action in Cairo (ICPD).[28] The ICPD is arguably one of the most significant human rights documents to set out the necessity of empowering women and fulfilling their human rights.[29] Language of empowerment, control, autonomy and decision making capacity are significant in acknowledging the power imbalances that lead to gender inequality.[30] This discourse set the foundation for future human rights documents which echo the role of power in empowerment. The Beijing Declaration and Platform for Action (The Beijing Declaration)[31] was another defining moment in reinforcing the work of women’s rights activists across the globe and working toward the advancement of rights for women.[32]
C. Gender Stereotypes
Human rights law recognises that in order to achieve equality and empowerment, stereotypes which reinforce these inequalities must be extinguished. Stereotyping can lead to harmful outcomes including the denial of an individual’s dignity or the denial of fair allocation of public goods.[36] As such, it could be argued that gender stereotypes hinder the achievement of women’s rights and thus do not allow for their empowerment. We see throughout human rights documents the portrayal of the ‘woman’ as one specific type. Language used throughout these documents situates the ‘woman’ as a cisgender woman in a heterosexual relationship, who’s role is defined by her position in the family as a mother. This language is damaging, not only to the expectations of women universally, but to the women who are disadvantaged at other intersections of their identity as well, for example Black women, queer women, Indigenous women and disabled women. In contrast, when not portrayed in this manner, women in human rights law are presented as the ‘victim’. Whilst important in recognising the abuses that women face globally, this framing leads to a regulation of women’s rights, rather than addressing the underlying causes of such abuse. Although it is critical to name the human rights violations that happen to women, because they are women; the projection of victimhood does not seek to empower women, it seeks to reinforce the cyclical power imbalances that lead to violations in the first place.
This paper is not arguing that women’s rights have not made substantial progress over the years, nor is it saying that international human rights law does not have benefit to women and the achievement of women’s rights and equality. It is contended that human rights law is constructed on the foundation that male is the norm and as a result, women’s rights exist in specific categories relating to their womanhood. These stereotypes then act as a barrier to the advancement and empowerment of women’s human rights.
III. SEXUAL RIGHTS IN HUMAN RIGHTS LAW
A. Reproductive Health and Family Planning
The ICPD which is one of the more progressive human rights documents when it comes to sex, also emphasises the importance of reproductive rights.[42] Although not only addressing reproduction and family planning in its discussion of sexuality, the ICPD talks about equal access to reproductive health care, family planning, sexual health and decision making capacity in relation to sex and reproduction.[43] Notably, ICPD states that “reproductive health…implies that people are able to have a satisfying and safe sex life…”,[44]being a fundamental statement in the advancement of sexuality within human rights law. It should be noted though, that this statement still falls under the realm of rights related to reproduction. The Beijing Declaration similarly discusses sex related to reproduction, however echoes the ICPD terminology of “satisfying and safe”,[45] whereas CEDAW addresses merely reproductive, family planning and maternal rights.[46]
Reproductive rights are important, and no doubt need to exist within human rights law, yet reproduction has consumed much of the conversation around sexual rights, with some academics arguing that sexual rights have become a subset of reproductive rights.[47] Whilst reproduction is an element of sexual rights, sexual rights should and can exist without reproduction. Therefore, whilst there may be an empowerment of women’s reproductive rights, this does not equate to an empowerment of women’s sexuality as a whole.
B. Protection against Sexual Violence
Both the ICPD and Beijing Declaration discuss the increased vulnerability of women to many of these concerns and note the importance of sexual health education and access to services when addressing issues such as AIDS/HIV, STD’s, high risk sexual behaviour and unwanted pregnancies.[51] While not inherently violent, the language of these concerns frame them as ‘dangers’ in which women need protecting from. A promotional and affirmative discussion on women’s sexual rights would address these issues and empower women, rather than reinforcing the perception of women’s vulnerability.
Women’s right to be free from violence and violation of these rights is necessary, however the perception of sex as dangerous for women has allowed for paternalistic laws which fail to promote women’s rights.[52] It is argued that many matters of sexual violence are not a ‘women’s issue’ as such, but in fact are an issue stemming from inequality, power imbalance and control by those who perpetuate it and the attitudes of society which enable it.
C. Satisfying Sex
It is fair to contend that sexual rights as an entirety are not addressed enough throughout human rights law, not just for women. However, when examining the language of all human rights, we know that the language used positions the standard human rights bearer as the man, unless explicitly stated otherwise. As has just been explored, language that is used in relation to sexuality in human rights law, tends to reinforce the negative stereotypes about women and sex, regulating sexuality in women rather than empowering it.
Human rights law has a long way to go for the LGBTQIA+ community. Human rights law is targeted toward the male subject, however even within women’s rights discussion, it is often the cisgender, heterosexual woman subject. The Yogyakarta Principles were established, to apply international law to human rights violations of the LGBTQIA+ community.[54] This document phrases sex more broadly, looking to a person’s sexuality outside of merely male-female reproduction or sexual dangers. It speaks explicitly about sexual attraction, activity, relations and intimacy.[55] Whilst it still has language of regulatory measures, there are many elements of sexual empowerment in this discussion as it recognises the rights and purposes of different sexual behaviours. This is the first real document of international law that speaks to sexual orientation and gender identity as a part of sexuality, and the ways in which human rights law should encompass various features.
After looking at the way women generally are regulated or empowered throughout human rights law and exploring the way sexual rights have appeared in various documents over time, it is now necessary to look at how these different areas interrelate and the degree to which human rights law regulate and empowers women within them.
IV. WOMEN’S SEXUAL HEALTH
A. Reproduction, Abortion and Family Planning
Women’s autonomy is rooted in international law discussions around reproductive health. This initially begun in the form of changing traditional gender roles and achieving equality within the family structure.[58]Feminist critique of international law, argues the public/private dichotomy within human rights law, which claims there is a private sphere free of state interference, results in unchanged power structures within families.[59]Thus, we do not see an empowerment of women, as human rights law often fails to go beyond the public sphere.
The rights of women in reproduction only begun to appear in international law discussions in 1993 at the World Conference on Human Rights in Vienna,[60] followed by the ICPD[61] and Beijing Declaration.[62] The HIV/AIDS crisis in the 1980’s led to considerations around reproductive health in women.[63] Reproductive rights later became about the empowerment of women’s self-determination over their bodies and health.[64]This has included safe and affordable access to healthcare services, sexual education, decisions about fertility and having children and affirming the need to have these rights without discrimination, coercion and violence.[65] Human rights law relating to reproduction and family planning takes on both preventative and responsive approaches as we see a move towards the empowerment of women in their healthcare.
Abortion seems to be where the line is drawn when it comes to empowerment in reproductive health. General Recommendation No.24 on women’s health briefly touches on abortion as it recommends to states to decriminalise abortion where possible[66]. The ICPD and Beijing Declaration speak to the need for healthcare to prevent unsafe abortions, however do not promote abortion stating, “every attempt should be made to eliminate the need for abortion”.[67] Human rights law cannot be seen as empowering, when it empowers women’s bodily autonomy to a point, and then regulates where that self-determination ends. In 2010, the CEDAW Committee received a submission under article 8 of the Optional Protocol, alleging grave and systematic violations of rights under CEDAW, due to restrictive access to and the criminalisation of abortion in Northern Island.[68] The Committee found a number of violations by the state party relating to women’s rights under CEDAW, with societal attitudes and imposed stereotypes on women, contributing to this discrimination and violation.[69] Issues surrounding abortion are not unique to Northern Ireland and reflect a damaging regulation of women’s bodily autonomy and healthcare rights.
B. Sexually Transmitted Diseases
CEDAW’s General Recommendation No.24 on health, again talks about women’s increased likelihood of contracting HIV/AIDS and other STD’s, due to gender inequality and power relations which can mean women are “unable to refuse sex or insist on safe and responsible sex practice” as well as harmful traditional practices such as FGM, polygamy and marital rape.[73] The report highlights state parties obligations to sexual health education and services without prejudice or discrimination.[74] Adopting a healthcare lens to overcoming these issues is useful, however once again the core problem underlying these issues is not considered in their solutions. The language evokes a sense of shame for women who contract STD’s rather than targeting the gender inequality causing it, nor the empowerment of women to manage their health.
C. Pleasure, Safety and Rights
Despite the definition of sexual health including pleasure[75], human rights law does not adequately address sexual health outside of the aforementioned aspects. Much of the literature explores the tensions between pleasure and danger in sex.[76] Despite efforts to empower women in health care, human rights law largely reproduces the notion that sexuality outside of (heterosexual) marriage is dangerous.[77]
Nowhere in international human rights explicitly speaks to the rights involved in reproduction and family planning for same sex relationships. In fact, many states have made reservations which declare they do not endorse homosexual sexual behaviour and that sexual rights refer solely to heterosexual relationships.[78] To say that women are sexually empowered through human rights law, would fail to recognise the exclusion of women who do not engage in heterosexual relationships. Human rights law does not address any form of sexual rights outside of male-female sexual relations. Just as women’s rights have the male comparator, sexual rights are based on a heteronormative framework. Even in the realm of same-sex activism, sexual rights have focused on male-to male sexuality.[79] Some academics argue that much of the case law relating to queer sexual rights, has been unresponsive to the rights of lesbian women, reinforcing patriarchal norms and values.[80] In an examination of lesbian rights, Hodson compared case law under the European Human Rights Court, in which one case about male homosexuality framed men’s sexual agency as an “innate, intimate part of their being”, compared to a case of a lesbian couple in which the court relied on medical authorities to declare the applicant’s sexuality and relationship.[81] This again, raises the question of how empowered women can feel under a system which only views sexuality as valid when a man is involved.
Adopting the WHO’s framework of health (sexual[82] and general[83]) being more than just the “absence of disease, dysfunction or infirmity” and rather a “state of…wellbeing”, sexual rights cannot be protected by human rights law through merely preventing harm associated with sex and regulating sexual behaviours. There needs to be an empowerment of physical, emotional, mental and social wellbeing related to a woman’s sexuality.
V. SEXUAL DANGER AND THE CRIMINALISATION OF SEX
Sexual danger in international law has sat on either end of the spectrum. Addressing violations such as sexual violence is necessary in the fulfilment of women’s rights. On the other hand, sexual relations which are not necessarily dangerous in nature, have been observed in human rights law as reinforcing notions of female vulnerability. The concept of ‘dangerous’ sex has justified protections from states which enforce paternalistic laws and maintain power imbalances between genders.[84] As previously discussed, sexual relations outside of heterosexual sex and outside of marriage have traditionally been labelled as abnormal, creating the perception of acceptable and unacceptable sex.
The notion of sexual hierarchies is explained as “a class system in which different sexual practices, expressions, identities and communities are ranked, from the most normative and socially approved to the most stigmatised and despised”.[85] This forms the basis for our understanding of acceptable and unacceptable sex. When advocating for women’s rights, there is often a focus on the harm that women face. Often this involves depicting the image of ‘the victim’. The idea of an innocent and wholesome victim unintentionally supports the power of the sexual hierarchy.[86] The victim-subject is based on gender essentialism, representing the white, western, middle-class, heterosexual woman.[87] In this discourse, intersectional identities are ignored, and power dynamics are reproduced.
We see unacceptable sex mentioned both explicitly, by some states in their reservations in certain sexual practices, and implicitly, in the invisibility of diverse sexuality in human rights law. Many states across the globe have criminalised various types of sexual activity, such as homosexual relations and sex work.[88]Laws that criminalise consensual sexual behaviour can have detrimental effects on individuals, particularly in relation to their contact with justice systems and accessing healthcare.[89] This reinforcement of acceptable versus unacceptable sex leads to discriminatory and regulatory notions of sexual rights. Even within heterosexual relationships, there are many sexual practices which exist beyond the purpose of procreation, for example masturbation, oral and anal intercourse and variations of bondage and eroticism.[90] The lack of discussion on these practices in sexual rights minimises the importance of safety, diversity and enjoyment in empowering sexuality.[91] It is also important to consider how the framework of sexual health can reinforce notions of unacceptable sex. Academics in sexual rights have spoken to the insufficiency of linking sexuality to health as it can lead to the medicalisation of sexuality and/or use health to exclude certain sexual practices as unhealthy.[92]
A. Sex Work
Internationally, activists throughout time have called for the decriminalisation of sex work.[93] Many states have adopted regulatory measures to reduce harms related to sex work. Nevertheless, women and sex worker activists have argued against regulatory systems, adopting a ‘pro-sex’ outlook.[94] These groups argue that “casual anonymous sex is okay, whether paid for or not”.[95] Conversely, other feminist groups consider sex workers as victims of male oppression.[96] The notion of morality is a key factor in these discussions with one piece of literature arguing that the criminalisation of sex work in Canada draws on paternalistic gender discourse, framing solicitation as a threat to ‘good’ women who may as a result be subjected to harassment.[97] The author maintains that in this dialogue, it is then only ‘good’ women (that is, women who live up to the standards of decent female behaviour) who deserve protection by the state.[98] This mentality reflects gendered stereotypes of women and stigma associated with any woman who is sexual, let alone one who is sexually empowered.
If the argument for regulation stems from the protection of women, the situations in which women are at risk need to be analysed. Where the concern is violence, the issue needs to be recharacterized as an issue of those who perpetuate it. The underlying factors which contribute to violence against women, that is power imbalances and negative perceptions of women, must be the target of regulation and reform. Instead the focus on demonising women who choose to engage in sex work only reinforces discriminatory attitudes against women. Overs puts it suitably when highlighting that the woman’s role in the relationship between sex worker and client, is categorised into a homogeneous label, whilst no word exists to depict the client.[99] It is no surprise that women who engage in sex work are criminalised and degraded, when their clients (who are typically men) are not.[100] CEDAW’s General Recommendation No.38 on Trafficking in Women & Girls has been criticized by some feminists as regressive in recognising women as autonomous beings with rights and reason, instead viewing them as vulnerable beings in need of protection from the “evils of prostitution”.[101]Additionally, heightening sex workers vulnerability to violence and abuse including by the criminal justice system.[102] It is argued by these feminists that it is patriarchal attitudes which induce exploitation, causing trafficking, and that the conflation of sexual exploitation (which is unclearly defined) with sex work creates impunity for violations of sex worker’s human rights.[103]
The negative connotations associated with sex work increase women’s risk, as there is often a need to hide their actions from healthcare professionals and police due to its unlawful nature.[104] Furthermore, these women often become the target of a range of human rights violations and are not protected by authority, simply because of their status as sex workers.[105] It is impossible to move towards the empowerment of women as sexual beings, if a particular sub-group of women are excluded from that movement. It is also important to consider that many women move to sex work as the only way to financially support themselves and their families.[106] This constitutes once again a need to reflect on the underlying reasons which lead to particular behaviours. That is not to say that a woman’s motive for engaging in sex work should be relevant. In order to achieve empowerment, women should be granted full autonomy and agency over their bodies and sexual relations, including whether or not there is income involved.
B. Sexual Abuse and Harm
Some of the worst violations of human rights globally are those involving sexual violence. Human rights activism on the elimination of violence against women traces back to the beginning of the human rights movement. CEDAW was significant in its focus on eradicating sexual violence[107]. It is well established that gender-based violence stems from power imbalance and inequality between men and women.[108] Across the globe, this violence manifests in various forms including sexual harassment, forced prostitution, FGM, trafficking, sexual abuse and rape. Human rights law aims to protect women from these violations. This paper affirms the absolute importance of enforcing various measures to prevent such horrific acts. It is also important though to address the foundational concerns which lead to this violence. It is with no doubt that stereotypes and microaggressions about women lead to perceptions which permit men to assert power, domination and control over women. The Beijing Declaration stresses the failures in educating young men on women’s self-determination[109]. Additionally, that women’s rights to privacy, confidentiality, respect and informed consent are not considered in sexual relations.[110] MacKinnon claims that “women are more likely to be property than own any”, highlighting the historic (and ongoing) perceptions of women as objects, rather than autonomous beings in their own right.[111]
The private/public dichotomy is key in human rights protections against sexual violence. Activism has been victorious in highlighting the violence that many women suffer in the private sphere and the obligation of states to prevent this violation, however some argue that the construction of the victim-subject has not empowered women.[112] The United Nations General Assembly adopted the Declaration on the Elimination of Violence against women, in recognition of the necessity to eliminate gender-based violence as part of CEDAW’s aim to eliminate discrimination against women.[113] The CEDAW Committee also employed various General Recommendations relating to different aspects of violence against women.[114] General Recommendation No.19 emphasises the attitudes and stereotypes which place women as subordinate to men; perpetuating violence or coercion under the justification of protection of women.[115] Significantly, CEDAW also lays out in this general recommendation the propagation of pornography and depictions of women as sexual objects leading to gender-based violence.[116] This sexualisation of women has damaging effects. It is important though, that in order to combat this portrayal of women as sexual objects, women’s sexual agency is not suppressed, resulting in women being labelled negatively when they do engage in consensual sexual behaviours and thus creating disempowering regulations around women’s sexuality.
General Recommendation No.35, updating No.19, is substantial in acknowledging the intersectional identities of many women and the various factors that impact women of diverse identities, including disability, ethnicity/race, Indigeneity, socioeconomic status, sex work, LGBTQIA+ identity, women in armed conflict and more.[117] We see a change in the language traditionally used to talk about violence against women in this general recommendation. Rather than language of vulnerability and women’s victimisation, the CEDAW Committee speaks to men’s entitlement and privilege, social norms regarding masculinity, asserting male control or power, enforcing gender roles and unjust punishing what is considered to be unacceptable female behaviour.[118] Understanding gender-based violence as an issue of men, rather than a women’s problem, is critical in reconstructing societal perceptions. Recognising both the implicit and explicit ways in which states accept gender-based violence is crucial in breaking the cycle of violence. Aspects of empowerment are seen throughout this document when acknowledging the need for the participation of diverse women in implementing measures to promote female agency and autonomy.[119] Additionally, highlighting the need to repeal any laws (including religious and Indigenous laws) which allow procedures that focus on virginity (i.e. FGM), legal defences and mitigating factors based on religion or male privilege and laws that deprive women of legal capacity (i.e. guardianship laws, protective custody and immigration laws).[120] This general recommendation, albeit quite recent, has taken a substantial step forward in the empowerment of women in matters relating to sexual and gender-based violence.
We now look to the case of R v Ewanchuck, where a 17-year-old Canadian girl was sexually assaulted, and the perpetrator was acquitted on the defence of implied consent.[121] Justice L’Heureux-Dubé overturned this decision, highlighting the sexualisation of the complainant by the lower courts which denied women’s sexual agency and privileged male sexuality. Cook and Cusack’s dissection of this case finds various sexual stereotypes about women (that is that; women are sexually passive; women should physically resist sexual assault and when they don’t it signals consent; women should dress modestly and when they don’t they are responsible for their assault; women are in a state of perpetual consent; when a woman says no, she is really saying yes or persuade me) and about men (men are unable to control their urges; they are not responsible for sexual misconduct).[122] This case demonstrates how attitudes about women’s sexuality lead to sexual violence. Furthermore, how law which confirms notions of female vulnerability, perpetuates this violence. In order to reduce the risk of women experiencing sexual violence, it is clear that human rights law needs to address this power dynamic. To do this, women must be empowered and not regulated in the name of protection.
VI. CONCLUSION
The examination of various human rights instruments, including mainstream and women’s rights exhibits a lack of empowerment mechanisms for the advancement of women’s sexuality, and thus a full realisation of women’s human rights. Women’s sexuality is inherently related to sexual rights and human rights law must enhance the promotion of these rights in order to achieve female sexual empowerment. Currently, much of international law regulates behaviours relating to sexuality, maintaining underlying assumptions about sexuality. This paper explored how human rights frame the female subject in society and how this construction perpetuates negative stereotypes about women, hindering the equalisation of power balances between genders. After examining the ways in which aspects of sexuality are addressed throughout international law some key themes were identified; reproductive health and family planning; protection against sexual violence and (minimally) pleasurable sex. International law overwhelmingly addresses reproductive rights as the umbrella for sexual rights. We see a move to the empowerment of women’s reproductive rights and roles within the family, however less so when it comes to discussions of STD’s, safety and pleasure as part of women’s right to sexual health. Lastly the dichotomy of acceptable and unacceptable sex was discussed as sexual danger was examined, highlighting the reinforcement of women’s vulnerability, resulting in paternalistic regulations which prohibit sexual activity seen as criminal, indecent or risky.
It is evident that sexual danger has driven much of the advancement in sexual rights and there is little in terms of a positive affirmation of sexual rights. The tension lies in ensuring women’s inequality which leads to violation and harm is addressed, whilst still empowering women’s sexual desire, agency and autonomy.[123] A comprehensive approach to sexual rights would embody both violations and promotional models.[124] This paper contends that regulation of sexual rights in general needs to be limited and a more empowering approach should be established. Particularly for women, whose sexual identity is often disempowered through discriminatory stereotypes and attitudes. It is also important to note the increased marginalisation of transgender women and gender diverse people, who experience additional regulations and discrimination under human rights law. Sexual rights need to encompass all aspects of sexuality equally and remove stigmas and stereotypes which disadvantage certain subsets of people. In order to achieve full empowerment of women’s sexuality, there needs to be a greater focus on sexual expression and freedom. Women need to be recharacterized under human rights law as sexual beings with agency and autonomy.
[1] Universal Declaration of Human Rights, UNGA Res 217 A (III), UN GAOR, UN Doc A/810 (10 December 1948) (‘UDHR’).
[2] Diane Richardson, ‘Sexuality and Feminism’ in V Robinson and D Richardson (eds), Introducing Women’s Studies (Palgrave, London 1997) 152.
[3] See Christine Bateup, ‘Can Reproductive Rights be “Human” Rights? Some Thoughts on the Inclusion of Women’s Rights in Mainstream Human Rights Discourse’ (2000) 6(2) Australian Journal of Human Rights 33.
[4] Eszter Kismödi et al, ‘Sexual Rights as Human Rights: A Guide for the WAS Declaration of Sexual Rights’ (2017) 29(1) International Journal of Sexual Health 1.
[5] ‘Sexual and Reproductive Health and Research (SRH), including the Human Reproduction Programme (HRP)’ World Health Organisation (WHO) (Web Page, 8 June 2021) <https://www.who.int/teams/sexual-and-reproductive-health-and-research/key-areas-of-work/sexual-health/defining-sexual-health> (‘Sexual and Reproductive Health and Research’).
[6] Declaration of Sexual Rights, World Association for Sexual Health (WAS) WAS Advisory Council (March 2014).
[7] See, eg, WHO, ‘Sexual and Reproductive Health and Research’ (n 5).
WHO states:
Rights critical to the realization of sexual health include:
· the rights to equality and non-discrimination
· the right to be free from torture or to cruel, inhumane or degrading treatment or punishment
· the right to privacy
· the rights to the highest attainable standard of health (including sexual health) and social security
· the right to marry and to found a family and enter into marriage with the free and full consent of the intending spouses, and to equality in and at the dissolution of marriage
· the right to decide the number and spacing of one's children
· the rights to information, as well as education
· the rights to freedom of opinion and expression, and
· the right to an effective remedy for violations of fundamental rights.
[8] Macquarie Dictionary (online at 8 June 2021) ‘regulate’ (def 1).
[9] Ibid ‘empowerment’ (def 1).
[10] UDHR (n 1)
[11]Dianne Otto, ‘Disconcerting “Masculinities”: Reinventing the Gendered Subject(s) of International Human Rights Law’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing, 2005) 105 (‘Disconcerting Masculinities’).
[12] See also Ibid; Bateup (n 3).
[13] UN Women, ‘A Brief History of the Commission on the Status of Women’, Commission on the Status of Women (Webpage, 8 June 2021) <https://www.unwomen.org/en/csw/brief-history>.
[14] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[15] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
[16] Ibid art 2-3; UDHR (n 1) art 2; ICCPR (n 14) 2 art 2–3, 25-26.
[17] UDHR (n 1) art 16; ICCPR (n 14) art 23.
[18] UDHR (n 1) art 25; ICESCR (n15) art 10.
[19] ICESCR (n 15) art 7.
[20] Otto, Disconcerting Masculinities, (n 11).
[21] Ibid.
[22] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature on 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’).
[23] Ibid; Optional Protocol to the Convention of the Elimination of All Forms of Discrimination against Women, opened for signature on 10 December 1999, 2131 UNTS 83 (entered into force 22 December 2000) (‘CEDAW Optional Protocol’).
[24] CEDAW (n 22).
[25] Ibid.
[26] Ibid.
[27] ‘Women’s Rights are Human Rights: New York and Geneva, 2014’ United Nations Human Rights: Office of the High Commissioner (Report, 8 June 2021) <https://www.ohchr.org/documents/events/whrd/womenrightsarehr.pdf> (‘Women’s Rights are Human Rights’).
[28] UN Population Fund, Report of the International Conference on Population and Development, Cairo, A/CONF.171/13/Rev.1 (13 September 1994) (‘ICPD’).
[29] See United Nations Population Fund, ‘Overview’ International Conference on Population and Development (Webpage, 8 June 2021) <https://www.unfpa.org/icpd>.
[30] ICPD (n 28).
[31] United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20 (15 September 1995) (‘The Beijing Declaration’).
[32] See UN Women, ‘The Beijing Platform for Action: Inspiration Then and Now’, The Beijing Platform for Action Turns 20, (Webpage, 8 June 2021) <https://beijing20.unwomen.org/en/about>.
[33] Women’s Rights are Human Rights (n 27).
[34] Ibid.
[35]Bateup (n 3).
[36] Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2010).
[37] Alice M Miller, ‘Sexual but Not Reproductive: Exploring the Junction and Disjunction of Sexual and Reproductive Rights’ (2000) 4(2) Health and Human Rights 68
[38] UDHR (n 1) art 25(2); ICESCR (n 15) art 10(2).
[39] UDHR (n 1) art 25(2).
[40] See ICESCR (n 15) art 10; ICCPR (n 14) art 23; CEDAW (n 22).
[41] The Beijing Declaration (n 31) IV(C).
[42] ICPD (n 28) VII.
[43] Ibid VII A(7.2).
[44] Ibid.
[45] The Beijing Declaration (n 31).
[46] CEDAW (n 22).
[47] Miller (n 37).
[48] See ICPD (n 28); CEDAW (n 22); The Beijing Declaration (n 31); UNGA, Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993) (‘Vienna Declaration’); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).
[49] The Beijing Declaration (n 31); Reducing Violence Against Women and Their Children (Research Informing the Development of a National Campaign), November 2015; Committee on the Elimination of Discrimination against Women, General Comment No.35 on Gender-based Violence Against Women, updating General Recommendation No.19, 67th sess, UN Doc. CEDAW/C/GC/35 (26 July 2017) (‘General Recommendation no. 35’).
[50] See Committee on the Elimination of Discrimination against Women, General Comment No. 12 on Violence against Women, 8th sess, UN Doc.A/44/38 (1989) (‘General Recommendation no. 12’); Committee on the Elimination of Discrimination against Women, General Comment No. 14 on Female Circumcision, 9th sess, UN Doc. A/45/38 (1990) (‘General Recommendation no. 14’); Committee on the Elimination of Discrimination against Women, General Comment No. 15 on Women and AIDS, 9th sess, UN Doc. A/45/38 (1990) (‘General Recommendation no. 15’); Committee on the Elimination of Discrimination against Women, General Comment No. 19 on Violence Against Women, 11th sess, UN Doc.A/47/38 (1993) (‘General Recommendation no. 19’); Committee on the Elimination of Discrimination against Women, General Comment No. 21 on Equality in Marriage and Family Relations, 13th sess, UN Doc. A/49/38 (1994) (‘General Recommendation no. 21’); Committee on the Elimination of Discrimination against Women, General Comment No. 24 on Article 12 – Women and Health, 20th sess, UN Doc. A/47/38 (1999) (‘General Recommendation no. 24’); Committee on the Elimination of Discrimination against Women, General Comment No. 34 on The Rights of Rural Women, 63rd sess, UN Doc. CEDAW/C/GC/32 (7 March 2016) (‘General Recommendation no. 34’); Committee on the Elimination of Discrimination against Women, General Comment No. 38 on Trafficking in Women and Girls in the Context of Global Migration, 77th sess, UN Doc.CEDAW/C/GC/38 (2 November 2020) (‘General Recommendation no. 38’); General Recommendation no. 35 (n 49).
[51] The Beijing Declaration (n 31); ICPD (n 28).
[52] Dianne Otto, ‘Between Pleasure and Danger: Lesbian Human Rights’ (2014)(6) European Human Rights Law Review 618 (‘Between Pleasure and Danger’); Ratna Kapur ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) Harvard Human Rights Journal 1.
[53] ICPD (n 28) VII(a)(7.2).
[54]International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (March 2007) (‘Yogyakarta Principles’).
[55] Ibid.
[56] Sexual and Reproductive Health and Research (n 5).
[57] Ibid.
[58] CEDAW (n 22).
[59] Bateup (n 3).
[60] Vienna Declaration (n 48).
[61] ICPD (n 28).
[62] The Beijing Declaration (n 31).
[63] Aart Hendriks, ‘The Right to Health: Promotion and Protection of Women's Right to Sexual and Reproductive Health Under International Law: The Economic Covenant and the Women's Convention' (1995) 44(3) American University Law Review 1123.
[64] Bateup (n 3).
[65] ICPD (n 28); The Beijing Declaration (n 31).
[66] General Recommendation No. 24 (n 50) 31(c).
[67] ICPD (n 28) VIII(c)(8.25); The Beijing Declaration (n 31) (c)106(k).
[68] Committee on the Elimination of Discrimination against Women, Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc CEDAW/C/OP.8/GBR/1 (23 February 2018) I (1).
[69] Ibid.
[70] See ICPD (n 28) VII (C); The Beijing Declaration (n 31) 83(l).
[71] The Beijing Declaration (n 31) C (93).
[72] Ibid.
[73] General recommendation no. 24 (n 50) 12 (1)(18).
[74] Ibid.
[75] Sexual and Reproductive Health and Research (n 5).
[76] See Otto, Between Pleasure and Danger (n 52).
[77] Ibid.
[78] See The Beijing Declaration (n 31).
[79] Miller (n 37).
[80] Loveday Hodson ‘Sexual Orientation and the European Convention on Human Rights: What of the “L” in LGBT? (2019) 23(3) Journal of Lesbian Studies 383, DOI: 10.1080/10894160.2019.1598208.
[81] Ibid.
[82] Sexual and Reproductive Health and Research (n 5).
[83] Constitution of the World Health Organisation, opened for signature 22 July 1946 (entered into force 7 April 1948).
[84] Hodson (n 79).
[85] Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in CS Vance (ed.) Pleasure and Danger: Exploring Female Sexuality (Boston Routledge, 1984) 267.
[86] Alice M Miller and Carole S Vance, ‘Sexuality, Human Rights and Health’ (2004) 7(2) Health and Human Rights 5.
[87] Kapur (n 52).
[88] Alice M Miller et al, ‘Sexual Rights as Human Rights: A Guide to Authoritative Sources and Principles for Applying Human Rights to Sexuality and Sexual Health’ (2015) 23(46) Reproductive Health Matters 16, DOI: 10.1016/j.rhm.2015.11.007; Miller (n 37).
[89]Miller et al (n 87).
[90] Miller (n 37).
[91] Ibid.
[92] Ibid.
[93] See Eurydice Aroney and Penny Crofts, ‘How Sex Worker Activism Influenced the Decriminalisation of Sex Work in NSW, Australia’ (2019) 8(2) International Journal for Crime, Justice and Social Democracy 50; Cheryl Overs, ‘Prostitution: We Call it Sex Work Now. (A Comment)’ (1989) 6 Lilith: A Feminist History Journal 64.
[94] Overs (n 93).
[95] Ibid.
[96] See Ibid; Aroney and Crofts (n 93)
[97] Leslie Anne Jeffrey, ‘Prostitution as a Public Nuisance: Prostitution Policy in Canada’ in J Outshoorn (ed.) The Politics of Prostitution: Women’s Movements, Democratic States and the Globalisation of Sex Commerce (Cambridge University Press, 2004).
[98] Ibid.
[99] Overs (n 93).
[100] Cook and Cusack (n 36).
[101] ‘A Critique of CEDAW General Recommendation No. 38 on Trafficking in Women and Girls in the Context of Global Migration’ IWRAW Asia Pacific (Webpage, 8 June 2021) < https://www.iwraw-ap.org/wp-content/uploads/2021/01/IWRAW-AP-Analysis-of-CEDAW-GR-38.pdf> (‘Critique of CEDAW General Recommendation No.30’).
[102] Ibid.
[103] Ibid.
[104] Miller et al (n 88).
[105] Ibid; General Recommendation No.19 (n 50).
[106] Cook and Cusack (n 36).
[107] See CEDAW (n 22).
[108] See United Nations Declaration on the Elimination of Violence Against Women GA Res 48/104, UN Doc A/RES/48/104 (23 February 1994) (‘UN Resolution’); General Recommendation No.19 (n 50); General Recommendation No. 35 (n 50).
[109] The Beijing Declaration (n 31) C (93).
[110] Ibid.
[111] Catherine A MacKinnon, ‘On Torture’ in Catherine A MacKinnon (ed), Are Women Human?: And Other International Dialogues (Belknap, 2006) 17.
[112] See Kapur (n 52).
[113] UN Resolution (n 108).
[114] See General Recommendation No. 14 (n 50); General Recommendation No. 19 (n 50); General Recommendation No. 24 (n 50); General Recommendation No. 35 (n 50); General Recommendation No. 38 (n 50).
[115] General Recommendation No. 19 (n 50) 11.
[116] Ibid 12.
[117] General Recommendation No. 35 (n 50) 12.
[118] Ibid 19.
[119] Ibid 28.
[120] Ibid 29 (c).
[121] R v Ewanchuk [1999] 1 SCR 330.
[122] Cook and Cusack (n 36).
[123] Otto, Between Pleasure and Danger (n 52).
[124] Miller (n 37).
