Lost in translation: the failure of the international reproductive rights norm.

• Author: Yoshihara, Susan

INTRODUCTION

International relations scholars have hailed the transnational reproductive rights movement as a success. (1) The degree to which nations have embraced reproductive rights language in law and policy seems to bear them out. But contrary to what some advocates on both sides of the abortion debate believe, while "reproductive health" language has been adopted in many nations, an international reproductive rights norm has not.

This came to light during the United States Senate debates on whether the United States should ratify the latest U.N. human rights treaty, the Convention on the Rights of Persons with Disabilities (CRPD). (2) High-level bipartisan supporters, including Senators John McCain (R-AZ) and John Kerry (D-MA), as well as dozens of veterans and disabilities groups failed to convince enough senators to join the 126 other countries who had bound themselves to the treaty. Among the major concerns was its inclusion, for the first time in a U.N. treaty, the term "sexual and reproductive health." (3)

Senator Kerry went to great lengths to assure his colleagues that the nation had nothing to fear from the term. Even if it included abortion, it is only used in the treaty in regard to non-discrimination and not to create any new lights. (4) Why was such insistence necessary and why was it unpersuasive?

The reason is that the meaning of the term, transparent in its inception as including abortion, evokes controversy in its ubiquity. Proponents have downplayed its meaning in international debates to promote it among traditional nations, while officials in those countries have claimed to purify it before adopting it into domestic usage. Like trench warfare, heated battles over words occupying mere inches of text have gone on for years. The second reason legislators were wary is that U.N. human rights treaty bodies had already pressured more than ninety countries over 120 times to liberalize their abortion laws using far less controversial language in the treaties, such

Susan Yoshihara ([dagger])

([dagger]) Susan Yoshihara, Ph.D., Fletcher School of Law and Diplomacy, M.A., Naval Postgraduate School, B.S., United States Naval Academy, is senior vice president and research director at Catholic Family & Human Rights Institute (C-FAM). The author is grateful for the research assistance of Elizabeth Charnowski, Maria Kaufmann, Rebecca Oas, and Lucia Muchova, and to those who offered comments on drafts of the Article, including Mary Ann Glendon, Jeremy Rabkin, and Piero Tozzi. This Article provides an original account of the proceedings of the debate over the term "sexual and reproductive health" during the negotiation of the Convention on the Rights of Persons With Disabilities.

as "the right to life." (5) The practice of reinterpreting such rights to include abortion was initiated and propelled by the transnational reproductive rights movement.

In addition to human rights, the movement has fought on a second front: international development. The World Health Organization (WHO) established a program on human reproduction in 1972, (6) promoting abortion as reproductive health. By 1994, the term "reproductive health" was at the center of a major U.N. conference on population in Cairo. (7) While abortion advocates failed to walk away with the declaration of a new international right to abortion, they gained inclusion of abortion as part of reproductive health care, where it was not against the law.

After the Cairo conference, the major international aid and development organizations established reproductive health programs, including United States Agency for International Development (USAID), (8) U.N. Population Fund (UNFPA), (9) Population Council, (10) and Ford and MacArthur Foundations. (11) The term now permeates the literature of these agencies. As a result, countries from every region have incorporated the term in policy documents, a significant number have adopted some of its programs, but far fewer have adopted its core tenet, legal and accessible abortion. (12)

The case is emblematic of a larger phenomenon in which the language of a norm gains near universal acceptance, but state practice and public attitudes do not evolve accordingly. (13) This analysis examines the pursuit of a reproductive rights norm using Martha Finnemore and Kathym Sikkink's articulation of international norm dynamics and political change to identify the reason for this disconnect. (14) The lifecycle of a norm, according to that model, has three stages: norm "emergence," whereby powerful norm entrepreneurs try to convince nations to adopt it; norm "cascade," in which states include it in national laws and policies; and norm "internalization," when domestic debate about the norm stops. (15)

As the United States Senate's vote against ratification of the CRPD demonstrates, domestic debate, even in countries with liberal abortion laws, has not stopped. This analysis finds that the transnational reproductive rights movement has been highly successful in the first phase, less so in the second, and has fallen far short of its goals in the third phase due to strategic overreach and a series of tactical decisions about how to promote its aims.

1. AN UNALIENABLE RIGHT TO FAMILY PLANNING

   Two tectonic shifts in the international political agenda converged at the United Nations in the late 1960s: human rights and overpopulation. Coming of age together in the post-war era as they did, it is little wonder that U.N. campaigns to limit human reproduction and to promote human rights remain conjoined fifty years on.

   In 2012, the U.N. Population Fund's annual report made headlines for declaring contraception a human light. (16) After the 2012 United States presidential election, UNFPA's executive director sent a congratulatory letter to the U.N. ambassador to the United States calling family planning an "unalienable" right, akin to those enshrined in America's founding documents. (17) Missing from the press coverage about the controversial claim was the fact that it was nothing new. (18)

   On Human Rights Day, December 10, 1966, twelve heads of state signed and presented to U.N. Secretary General U-Thant a Declaration on Population, saying they believed "the opportunity to decide the number and spacing of children is a basic human right." (19) They explicitly connected this assertion to the 1948 Universal Declaration of Human Rights. (20) The following year eighteen more heads of state signed on, including Lyndon Johnson, Indira Gandhi, Lee Quan Yew, Ferdinand Marcos, General Suharto, and Marshal Tito. (21) The declaration was the progeny of John D. Rockefeller, III, chairman of the board of the Population Council and the Rockefeller Foundation, an avid and singularly influential population control advocate. World leaders concretized the notion again in the 1968 Tehran Declaration. (22)

   The 1966 Declaration on Population preceded by a week the U.N. General Assembly's adoption of the International Covenant on Economic, Social, and Political Rights (ICESCR), (23) and the treaty would not enter into force until a decade later. Yet, the ICESCR made no mention of family planning, reproduction, population, unwanted pregnancy, unsafe abortion, or maternal mortality. That is not to say that the drafters omitted maternal and child health. To the contrary, the treaty went into detailed requirements such as "[t]he provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy

   development of the child." (24)

   It was not until the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (25) that "family planning" was mentioned in a binding treaty, and then it was included as a term of non-discrimination and not as a right. As in the case of the ICESCR, CEDAW addressed maternal health, requiring states to ensure women have "appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." (26)

   Government leaders were swift to declare a right to family planning in a non-binding way when population growth seemed to threaten international peace and security. While they agreed in binding treaties not to discriminate in matters of family planning, however, they did not recognize it as a right per se.

2. EMERGENCE OF THE REPRODUCTIVE HEALTH NORM

   A norm is defined as "a principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior," or a "pattern or trait taken to be typical in the behavior of a social group"; or a "widespread or usual practice, procedure, or custom." (27) Examples of successful campaigns to change norms through political action include the fight against human slavery in the 1800s and for women's citizenship rights in the early 1900s. Finnemore and Sikkink find that the ideas do not evolve internationally unless promoted by "[n]orm entrepreneurs [who] attempt to convince a critical mass of states (norm leaders) to embrace new norms." (28)

   To be successful, norm entrepreneurs must "frame" the issue, mobilize through various networks, and seize political opportunities such as alliances with influential decision makers. (29) Ensuring norm coherence with the original intent spans the first and second stage, "norm cascade." (30) Norm cascade is "characterized more by a dynamic of imitation as the norm leaders attempt to socialize other states to become norm followers." (31) Finnemore and Sikkink note that the broader public's motivation for accepting the norm in this stage may vary, and that "a combination of pressure for conformity, desire to enhance international legitimation, and the desire of state leaders to enhance their self-esteem facilitate norm cascades." (32)

   The measure of a successful transnational campaign, "norm internalization," is marked by a tipping point. Before...