Women’s Right to Access to Health Care Services in the UPR Process at the UPR Process

Contextualising Women’s Rights in Relation to Access to Health Care Services

For the purposes of this section, women’s right to access health care services includes information and services made available by health authorities such as preventative medical care, reproductive choices, screening procedures, dietary factors, and other information on facilities to maintain health.⁹⁴ Access to such information is guaranteed under article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which contains four interrelated elements, which include the accessibility of health care facilities.⁹⁵ On women’s rights more specifically, the CEDAW places an obligation on states to takeappropriate measures to enable women to ‘access health care services, including those related to family planning ... and pregnancy’.⁹⁶ In fact, the Committee on the Women’s Convention has recommended that states should remove ‘all barriers to women’s access to health services, education and information, including in the area of sexual and reproductive health’.⁹⁷

Despite this apparent consensus amongst states in the review process and the numerous declarations of women’s rights to access health services under international law, women continue to face restrictions when accessing health care services. These restrictions on women’s access to health care are not always necessarily due to the lack of existence of such services. On the contrary, often the traditionally perceived role of women in the private sphere means that a woman’s right to access health care services is more susceptible to restrictions from cultural barriers.⁹⁸ For instance, women are sometimes prevented from controlling their own fertility, subject to nutritional taboos, and traditional birth practices,⁹⁹ and prevented from accessing scientific medicine in favour of traditional remedies during pregnancy; all of which sometimes result in long-term harm or fatality.¹⁰⁰ On this issue, Radhika Coomaraswamy explains that it is often considered that women’s primary duty is to reproduce, and, therefore, any health consequences from the process of childbirth are often explained by fate, destiny, and social and cultural practices, rather than a violation of women’s rights to health services.¹⁰¹ It is primarily this relationship between culture and women’s rights to access health care services, whereby cultural barriers can impede women’s right to access health care, which will be the focus of analysis.

Findings on Women’s Right to Access Health Care Services

Over the two cycles of the UPR process, a total of 225 recommendations were issued to states on women’s right to access health care services over the two cycles of review, with the majority of the recommendations being accepted. This suggests, at least formally, there is a consensus amongst the majority of states that were reviewed in the UPR process on the universal nature of women’s rights to access health care services.

First Cycle of Review

In the first cycle of review a total of 67 recommendations were issued in the first cycle, of which over 92% were accepted. In terms of the dialogue, there were three different forms of recommendations issued by the observer states, and the states under review provided five different forms of responses.

RECOMMENDATION 1

Under this category of recommendation, observer states instructed states under review to ensure that women were provided with adequate access to health care services. The nature of the recommendations can be described as being generic

Women’s Right to Health 111 in nature, as observer states did not make any references to the state’s international obligations in the suggestions made, or provide any specific guidance as to the laws or polices that should be implemented. Instead, the observer states simply raised concerns, or made suggestions, that women should be provided with access to health services. Encapsulating the essence of this recommendation, during the review of Andorra, the Chinese delegate recommended to ‘improve policy on healthcare and provide affordable health care services to women’. In the first cycle, this was the most prevalent form of recommendation. A total of 41 states were issued with a recommendation under this category, of which, only four noted the recommendation. The other 13 states that accepted the recommendation drew references to existing laws (A2) or policies (A3) that were already in place to ensure women have access to health care services. A typical example is the response of Bolivia who provided an A3 response and stated that ‘the Plan of Sexual and Reproductive Health ... is being implemented to respond to the needs of the population, especially women ... Bolivia has strengthened its integral healthcare’.¹⁰² The delegate of Afghanistan was the only state that provided a combined A2 and A3 response as it was stated that the right to health was enshrined in the constitution, and that polices were already in place to expand the public health service and improve maternal health.¹⁰³ The most popular form of response to this category of recommendation was an Al response, whereby the states accepted the recommendation without any further comments.

On the other hand, a total of four states noted the recommendation, of which Suriname, Malta, and Mexico noted the recommendation without any further comments. The delegate of Bosnia and Herzegovina provided an explanation with its refusal to accept the recommendations by stating that ‘gynaecological services at the primary, second and tertiary levels of health care during pregnancy, child birth and after childbirth and other health services are available to meet the needs of women’.¹⁰⁴

RECOMMENDATION 2

Under this category of recommendations, the observer states instructed the states under review to reform domestic legislation to guarantee women’s rights to access health care services. The nature of these recommendations is captured during the review of Myanmar, when the delegate of Canada issued a recommendation to ‘repeal and mend Bill on Population Control and Health Care Bill ... and ensure respect for the human rights of women’.¹⁰⁵ A total of five states were issued with a recommendation of this nature; all of the states in question accepted this recommendation. The states of Angola, Nicaragua, and Timor-Leste accepted the recommendation without any further comments, and thereby provided an Al response. The delegate of El Salvador issued and made reference to existing polices and measures that were already in place.¹⁰⁶

On the other hand, the delegate of Paraguay adopted a distinguished position. The delegate began by stating that the government had taken initiatives focusing on the implementation of women’s right to health; it then went on to addthat Paraguay ‘expects to achieve a significant reduction in the existing cultural, geographic and economic barriers that hinder access to health services’ (UNHRC ‘Paraguay, Addendum’ 2011, A/HRC/17/18/Add.l para 13). The nature of this response is significant as it is the first, and only time, in the two cycles of reviews where a state has recognised the significance of cultural barriers that can potentially impede women’s rights to access health care services. Despite being the most demanding form of recommendation issued, which required the most action by the states under review, it was interesting to note that no state noted this recommendation.

RECOMMENDATION 3

Observer states that issued recommendations under this category drew upon the international human rights obligation of the state under review when making suggestion to ensure that women’s rights to access health care services were protected. A typical example is when the delegate of the Netherlands issued a recommendation to Belize to ‘take further concrete measures to enhance women’s access to health care ... as recommended by the Committee on the Elimination of Discrimination against Women’.¹⁰⁷ This type of recommendation was only issued in the first cycle of review, and was issued to a total of eight states. In response, seven states accepted the recommendation without any further comments. The only state that noted the recommendation was Israel, who provided no further explanation.

Second Cycle of Review

In the second cycle, 158 recommendations were issued with states accepting a total of 87% being accepted. In terms of the nature of the discussions held, the scope was much narrower, with states only issuing two forms of recommendations, both of which were the same from the first cycle. There were five different forms of responses, largely the same as the previous cycle, with an additional form of explanation for not accepting a recommendation in the form of an N3 response.

RECOMMENDATION 1

As with the first cycle, in the second cycle of reviews, recommendations under the first category were most frequently issued, with a total of 49 states being issued with this type of recommendation. Similar to the first cycle, the most prominent response was the Al response, to accept the recommendation without any comments with a total of 23 states opting to provide this response. A total of 22 states provided an A2 response, whereby states made references to existing policies that are in place to ensure women have appropriate access to health care services. An example is when the delegate of Comoros responded by referring

Women’s Right to Health 113 to the government’s existing health policies and stated that ‘huge priorities had been made in ensuring vulnerable persons have access to health care’.¹⁰⁸

On the other hand, a total of four states under review noted the recommendation, of these Lebanon noted the recommendation without any further comments. The states of Antiqua and Barbuda Papua New Guinea, whilst noting the recommendations, made references to existing health policies in place; the delegate of Papua New Guinea explained that ‘health for women is supported and promoted at all levels in the country’.¹⁰⁹ Providing a more defensive response, Kuwait noted the recommendation and explained that ‘all persons, without distinction on the basis of gender, enjoy equality in relation to healthcare’.¹¹⁰

RECOMMENDATION 2

In the second cycle, this recommendation was only issued during the reviews of three states. Bangladesh was the only state that accepted the recommendation, and provided information on existing policy measures that were in place to address the issue.¹¹¹ In contrast, Nicaragua noted the recommendation stating that ‘the national strategy on sexual and reproductive health established strategic objectives’ in relation to women’s health.¹¹² The state of Myanmar also noted the recommendation, and explained that ‘the objective of the law on health protection and coordination regarding population increase was to reduce poverty and promote maternal and child health’.¹¹³

Discussion and Analysis

Over the two cycles of review, just over 90% of all recommendations issued in relation to women’s rights to access health care services were accepted. Based on the large numbers of acceptances of the recommendations on the issue, in the first instance, one may conclude that, at least formally, states share a consensus on the importance of protection of women’s rights to access health care sendees, and to taking appropriate action in the domestic context to ensure that this right is guaranteed. However, on closer examination the nature of discussions held on the issue indicate that the apparent consensus veils the unfruitful dialogue that is held on the issue during state reviews. In light of this, it is argued that complex and multifaceted issues, particularly in relation to cultural barriers that women face in accessing health care sendees, were largely absent during the discussions amongst states in the two cycles of review. There are three main themes that have emerged from the nature of discussions that have been held on women’s rights to access health care sendees over the two cycles of review. Each theme will be discussed separately, with a final section analysing the implications of these findings for the UPR process, and the protection of rights in the domestic context.

In the two cycles of review, the majority of the obsen^rer states when discussing women’s rights to access health care sendees adopted positions by issuing recommendations that were generic in nature. Despite the apparent positive outcomewith the majority of these recommendations being accepted, on closer examination, the recommendations lacked rigour and potency in suggesting significant reforms to be implemented to ensure that women were guaranteed to have sufficient access to health care services. In fact, the nature of the recommendations was so generic, that the suggestions made to implement rights were almost trivial. The issuance of these recommendations is problematic as its generic nature means that the states under review are not directed to implement any specific and significant policies in the domestic context to ensure that women are provided adequate protection of their right to access health care. Going further, the lack of a clear and detailed set of actions in these recommendations means that despite the wide-ranging acceptance, it is difficult to measure the extent to which the recommendations have been implemented both in the national and international context, and in particular, the future cycles of the review process. Consequently, this lack of clarity in the recommendations and commitment by states on actions to be taken to better protect women’s access to health care in the most frequently cited recommendations gives reason to call into question one of the fundamental aims of the UPR process, which is to improve human rights issues and concerns in the domestic context.

When the issue of women’s right to health was the focus of discussions during state reviews, the most frequent position adopted by states under review in response to recommendations was to accept the recommendation. However, a more detailed examination of the positions adopted by states indicates a less positive outcome. For instance, the majority of the states accepted the recommendation without any further explanations. The absence of any further comments by the states in the overwhelming number of instances on the issue firstly indicates unfruitful discussions between the states on further guaranteeing access to health care services for women, which is the sole purpose of the interactive dialogue. Further, the failure to provide a clear response by the states under review means that whilst the recommendations are accepted, it is not clear how it will be implemented in practice in the domestic context. As a result, any progression on the implementation of recommendations will be difficult to monitor, but in addition, it gives reason to doubt whether any substantial or comprehensive reforms will be implemented to better guarantee the right for women.

The second most frequent position provided by states under review in response to recommendations on women’s right to access health care services was that whilst accepting the recommendation, information was provided on measures and polices on the issue that were already in place. This response was frequently issued in relation to the generic recommendations and El Salvador and Bangladesh adopted this response when suggested to reform domestic law to ensure better protection of the right. However, it can be noted that far more states responded in the second cycle by providing information on measures that were already in place. In this way, it can be argued that when generic recommendations were made in the second cycle, states were far more defensive in comparison to the first cycle as rather than remain quiet on the issue they chose to provide

Women’s Right to Health 115 information on the policies in place to provide the protection. These positions adopted by states under review results in an unfortunate outcome. Whilst it is clear that the issue of women’s right to health is clearly, to some extent, an issue of concern, the states under review have failed to adopt any new commitments or policy initiatives to ensure better protection of women’s rights to access health care. In fact, the reference to existing policies would suggest that there is a fair possibility of the lack of any further initiatives being taken in the domestic context to provide better protection of the right. In this way, unfortunately, there is little in terms of substantial outcome from the UPR process, whereby the states have expressed commitments to reforms or implemented new practice to better guarantee the protection.

The subdued nature of responses continued even when the states under review noted the recommendations issued to them. In fact, in all instances when states noted recommendations on the issue, the responses have been one of the following three; to not provide any further explanation, to refer to existing practices or to deny the existence of any form of discrimination on gender. The ramifications of the subdued and defensive positions have resulted in these states not accepting any concrete commitments to improve the guarantee of this right for women as an outcome of being reviewed in the UPR process. For this reason, it can be argued that the promise of improving human rights on the ground through encouraging further promotion and protection of rights of the UPR process can be called into question.

The state of Paraguay provided a distinguished response when issued with recommendations to amend existing laws and policies to ensure the guarantee of women’s right to access health care services. It is the only state in over nearly a decade of discussions on women’s right to access health care in the UPR process, who recognised the significance of cultural barriers in women’s rights to access health care and endeavoured to remove them. No other states, whether in their capacity as an observer state or state under review, recognised the possibility of cultural barriers potentially hindering women’s rights to access health care services. This shows that despite the concerns raised in the academic literature of the culturally influenced barriers that women may face in accessing health care services, states when undertaking reviews or being reviewed in the UPR process largely failed to recognise the cultural norms and values that may impede women’s right to access health care services.

The implications of states failing to recognise the association between culture and women’s rights to access health care services are that there are only superficial, surface-level reviews of states on the issue. This is because some of the underlying and significant reasons as to why women are restricted from accessing health care services were not even raised during the discussions, not to mind being addressed. This absence by states in exploring the complex cultural barriers that often impede women’s access to health care services is disappointing, particularly as it was expected that the dialogical and peer review nature of the review process was an apt platform to raise and discuss controversial and complex issues.¹¹⁴