SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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Women are disproportionately the targets of this form of harassment, although men may also face this abuse. While States are obligated, under the rights to non-discrimination and equality, to treat the similar interests of individuals in the same way, they must also treat their significantly different interests in ways that adequately respect and accommodate those differences in line with principles of autonomy, respect for diversity and regardless of gender or racial stereotypes.20 The assumption that all persons can be reached by the same public health messages about sexually transmitted infections constitutes one example of failed formal equality: married adolescent girls, unmarried women, and men who have sex with men may all need specific, tailored outreach and actions to obtain equivalent health information. Human rights, health and children and young people Under international human rights law, states have different responsibilities toward people under 18 years of age from those over the age of 18. This age range in law overlaps with, but functions differently than, the public health/programmatic category of young people (age 15- 24.) While tailoring services to young people does not stop at age 18, the specific legal obligation changes, and young people over 18 assert their rights under the full range of rights treaties and national law. In regard to the access to health services, information and other rights important for sexual health, a rights analysis can highlight the state’s responsibility to ensure these rights to persons under 18 in an age-appropriate, non-discriminatory and effective way. At the same time, the bright line of age 18 does not mean that all persons under 18 are treated identically. Article 5 of the Convention on the Rights of the Child emphasizes that the concept of ‘evolving capacity’ of children. This concept balances the recognition of children as active agents in their own lives, and as rights-bearers with increasing autonomy, while also being entitled to protection in accordance with their vulnerability. In regard to sexual health, it is critical that children be protected from sexual exploitation and abuse, but under 18’s also have specific rights to information about sexuality and sexual health, as well as rights to expression and action contributing to their development. Thus, distinctions between adults and children are not always prohibited forms of discrimination; however, law must provide sufficient protection while not otherwise impeding other rights held by children, such as rights to information and participation. Moreover, under child rights principles, older teens are understood to have greater autonomy rights than younger children, and a rights lens demands that the law should not create distinctions based on gender stereotypes between girls and boys in determining sexualityrelated rights: the age of marriage, for example, should be equal (and 18), while age of sexual consent can be lower than age of marriage, it must be equal for boys and girls. The failure to use law in ways which supports the capacity of girls and boys to be both protected from abuse and empowered to make decisions about sexuality with full information, can increase their vulnerability to preventable health risks and impacts, such as pregnancy as they grow into young adults and leave them unprepared to act as health-literate adults. 1.1 Non- discrimination based on sex 20 [cite Simone Cusack] 16
Equality irrespective of a person’s sex finds concrete basis in the Constitutions of each of the research countries, which contain clauses that affirm such equality and also an obligation on States to prohibit discrimination based on sex. These constitutional guarantees have been further expounded to varying degrees, particularly in relation to women’s equality, in specific legislation of the research countries including laws ensuring equal pay for equal work, enforcing maternity benefits, etc. 21 The courts of the research countries have used their respective constitutional safeguards of equality to uphold women’s right to equality. The Constitution of Indonesia was adopted in 1945. However, a Chapter on Fundamental Rights was introduced in 2000, which recognizes, inter alia, the right to equal treatment before the law, to obtain equal opportunities in government (for citizens), 22 the right to receive facilitation and special treatment to have the same opportunity and benefit in order to achieve equality and fairness23 and the right of every person to be free from, and to protection from, discriminatory treatment based upon “any grounds whatsoever.” 24 Notably, the introduction of this chapter in the Indonesian Constitution occurred through a unique manner of legislative drafting wherein the clauses specifically bestowed rights on both sexes, thereby categorically signifying women’s equality rights (instead of the standard use of the male gender in legal texts). Thus, while Article 21 of the Indian Constitution states that, “no person shall be deprived of his life or personal liberty except according to procedure established by law” (emphasis added), the corresponding provision in the Indonesian Constitution states, “Every person shall have the right to live and to defend his/her life and existence.” 25 (emphasis added). The Law Concerning Human Rights 1999, which establishes the National Human Rights Commission of Indonesia further enshrines key human rights in Indonesian law. Discrimination under this law is defined as “…all limitations, affronts or ostracism, both direct and indirect, on grounds of differences in…sex…, that results in the degradation, aberration, or eradication of recognition, execution, or application of human rights and basic freedoms in political, economic, legal, social, cultural, or any other aspects of life.” 26 Under this law, womens rights are recognized as human rights 27 and the rights of women in marriage are recognized. 28 The law recognizes the obligation of the government to uphold these rights as well as other rights ratified by Indonesia internationally. To some degree, Indonesian legislations reflect these guarantees of equality in the context of women through provisions in their labour law related to maternity benefits 29 or specific legislation on domestic violence. 30 The right to equality in the Indian Constitution of 1950 is enshrined in Article 14 which states that, “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” A similar provision is contained in the 21 See Maternity Benefits Act, 1961 (India), Labour Act 2006 (Bangladesh), Labour Code 2006 (Thailand) 22 Article 28D, Constitution of Indonesia, 1945 23 Article 28H, ibid. 24 Article 28I, ibid. 25 Article28A, ibid. 26 Article 1(3), Law Concerning Human Rights 1999 27 Article 45, ibid. 28 Article 51, ibid. 29 See Act Concerning Manpower, Act of the Republic of Indonesia, Number 13, Year 2003 30 See Chapter 5 on Violence 17
Page 1 and 2: THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4: 6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6: ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8: in the regional reviews. This is a
Page 9 and 10: provide for information and distrib
Page 11 and 12: B. METHODOLOGY In keeping with the
Page 13 and 14: elevant and key laws and judgments;
Page 15: The inability of many sexually stig
Page 19 and 20: The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68:
oth parties and deems all marital p
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female who has not attained 12 year
Page 71 and 72:
Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
Page 75 and 76:
immovable property. The above propo
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consummation of marriage. The incap
Page 79 and 80:
Violence, especially sexual violenc
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gender norms which many remand home
Page 83 and 84:
female or a female to a male. It in
Page 85 and 86:
from other forms of inequality as w
Page 87 and 88:
c. Whereas victims of violence in h
Page 89 and 90:
courts. 350 According to the Commis
Page 91 and 92:
The Act provides for the appointmen
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Rani 383 it was held that a shared
Page 95 and 96:
The Act specifies imprisonment of 6
Page 97 and 98:
property jointly or separately held
Page 99 and 100:
upees or the amount of the dowry wh
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however, is that, of the 10,000 dea
Page 103 and 104:
Addararachchi 439 the court conside
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harassment, the Indian Supreme Cour
Page 107 and 108:
doer’s sexual desire by using doe
Page 109 and 110:
In holding that there was no justif
Page 111 and 112:
coerce or induce female inmates to
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material or detain any person for t
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consensual sexual activity with you
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The fined amount is to be given to
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the State and its citizens is one o
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every person “the right against e
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The law also includes the right of
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eing committed. 570 While prosecuti
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
Page 133 and 134:
that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
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With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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The exchange of information through
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community.” 727 In each case, the
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Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
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“...any interpretation of 'obscen
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“1 (a) Condones or extenuates act
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
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