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Volumn 4, Issue 2, 2000, Pages 69-109

Sexual but not reproductive: Exploring the junction and disjunction of sexual and reproductive rights

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS;

EID: 0033513087     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: 10.2307/4065197     Document Type: Article
Times cited : (59)

References (127)
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    • This article is one element of a larger project to articulate the elements of an autonomous human rights claim to sexual expression and freedom working in conjunction with other activists and theorists globally. The title is meant to suggest other binaries to be explored for overlap and disjuncture. One might be "reproductive but not sexual," which suggests an exploration of the interests and claims by individuals, infertile or not, choosing to engage in traditional reproductive sexual behavior, or by same-sex or heterosexual couples seeking access to reproductive technologies ranging from artificial insemination to more complex technologies. Another might be "sexual but not intimate," a formulation posited in a presentation by Jo Doezema, Institute for Development Studies, University of Sussex, at a seminar hosted on February 22, 1999 by the Program for the Study of Sexuality, Gender, Health and Human Rights, Joseph L. Mailman School of Public Health, Columbia University, which noted that sexual behavior outside the context of intimacy or relationship-based rights is one of the greatest challenges for feminist/rights activists confronting the rights of sex workers.
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    • A significant number of the scholarly articles addressing aspects of sexual rights or calling for the development of a sexual rights framework have appeared in this journal. See R. Parker, "Sexual Rights: Concepts and Action," Health and Human Rights 1997, 2(3): 31-38;
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    • Reproductive and Sexual Rights: A Feminist Perspective
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    • No single list can do justice to the powerful array of voices embarking on this task, but any short list would need to include: S. Correa and R. Petchesky, "Reproductive and Sexual Rights: A Feminist Perspective," in G. Sen, A. Germaine, and L. C. Chen (eds), Population Policies Reconsidered: Health, Empowerment and Rights (Cambridge, MA: Harvard University Press, 1994);
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    • Copelon, R.1    Gruskin, S.2    Toubia, N.3
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    • Sexual Rights: An Emerging Concept
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    • S. Fried and I. Landsberg-Lewis, "Sexual Rights: An Emerging Concept," in K. Askin (ed), Women's Human Rights (London: Transnational Publications, forthcoming);
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    • Sexual Rights: Inventing a Concept, Mapping an International Practice
    • R. Parker, R. Barbosa, and P. Aggleton (eds), Berkeley: University of California Press
    • R. Petchesky, "Sexual Rights: Inventing a Concept, Mapping an International Practice," in R. Parker, R. Barbosa, and P. Aggleton (eds), Framing the Sexual Subject: The Politics of Gender, Sexuality and Power (Berkeley: University of California Press, 2000), 81-1103;
    • (2000) Framing the Sexual Subject: The Politics of Gender, Sexuality and Power , pp. 81-1103
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    • Female Sexual Autonomy and Human Rights
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    • Lai, S.Y.1    Ralph, R.2
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    • Discrimination and Tolerance of Difference: International Lesbian Human Rights
    • J. Peters and A. Wolper (eds), New York: Routledge
    • See also G. Careaga Perez and J. Dorf, "Discrimination and Tolerance of Difference: International Lesbian Human Rights," in J. Peters and A. Wolper (eds), Women's Rights/Human Rights: International Feminist Perspectives (New York: Routledge, 1995);
    • (1995) Women's Rights/Human Rights: International Feminist Perspectives
    • Careaga Perez, G.1    Dorf, J.2
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    • Conceptualizing Private Violence against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective
    • and J. D. Wilets, "Conceptualizing Private Violence against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective," Albany Law Review 1997, 60: 989-1050.
    • (1997) Albany Law Review , vol.60 , pp. 989-1050
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    • Vatican Fights U.N. Draft on Women's Rights
    • 14 June
    • See, for example, the comments from the Vatican referring to the Cairo conference as "basically about a type of libertine, individualistic life style," in "Vatican Fights U.N. Draft on Women's Rights," New York Times, 14 June 1994.
    • (1994) New York Times
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    • Another example is the attack on the ICPD by authorities at Al-Azhar University, Cairo, as encouraging prostitution and undermining parental authority,• see "Muslims Protest U.N. Draft on Population," New York Times, 12 August 1994,
    • (1994) New York Times
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    • Reflections on Emerging Frameworks of Health and Human Rights
    • cited in L. Freedman, "Reflections on Emerging Frameworks of Health and Human Rights," Health and Human Rights 1995, 1(4): 332.
    • (1995) Health and Human Rights , vol.1 , Issue.4 , pp. 332
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    • Indivisible Rights and Intersectional Identities, or, What do Women's Human Rights Have to Do with the Race Convention?
    • For a critique of how simplistic application of this system obscures both the promise of the UDHR and the emerging understanding of intersecting identities, see L. Crooms, "Indivisible Rights and Intersectional Identities, or, What do Women's Human Rights Have to Do with the Race Convention?" Howard Law Journal 1997, 40: 61910.
    • (1997) Howard Law Journal , vol.40 , pp. 61910
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    • Correa and Petchesky (see note 3), p. 107
    • Correa and Petchesky (see note 3), p. 107.
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    • The Invention of Sexuality
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    • J. Weeks, "The Invention of Sexuality," in Sexuality (London: Tavistock Publications, 1986), p. 23.
    • (1986) Sexuality , pp. 23
    • Weeks, J.1
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    • note
    • A vast literature on queer studies, anthropology, sexology, feminist studies, lesbian and gay studies, cultural studies, history, and political philosophy has contributed to this effort. A few of the seminal authors are John D'Emilio, Michel Foucault, Mary Macintosh, Gayle Rubin, Sharon Thompson, Jeffrey Weeks, and Carole Vance.
  • 26
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    • Vance (see note 4), p. 4
    • Vance (see note 4), p. 4.
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    • A Place in the Rainbow: Theorizing Lesbian and Gay Culture
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    • Irvine, J.M.1
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    • Life after Hardwick
    • L. Duggan and N. Hunter (eds), New York: Routledge
    • For an examination of this dilemma in the United States, see N. Hunter, "Life after Hardwick," in L. Duggan and N. Hunter (eds), Sex Wars: Sexual Dissent and Political Culture (New York: Routledge, 1995), p. 96.
    • (1995) Sex Wars: Sexual Dissent and Political Culture , pp. 96
    • Hunter, N.1
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    • Social Construction Theory: Problems in the History of Sexuality
    • Hunter borrows the terms from C. S. Vance's earlier formulation in Social Construction Theory: Problems in the History of Sexuality, presented at the 1988 Conference on Gay and Lesbian Studies.
    • 1988 Conference on Gay and Lesbian Studies
    • Vance, C.S.1
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    • Violence, Sexuality and Women's Lives
    • R. N. Lancaster and M. di Leonardo (eds), New York: Routledge
    • L. L. Heise, "Violence, Sexuality and Women's Lives," in R. N. Lancaster and M. di Leonardo (eds), The Gender/Sexuality Reader: Culture, History, Political Economy (New York: Routledge, 1997), p. 414.
    • (1997) The Gender/Sexuality Reader: Culture, History, Political Economy , pp. 414
    • Heise, L.L.1
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    • New York: Zed Books
    • See also R. P. Petchesky and K. Judd (eds), Negotiating Reproductive Rights: Women's Perspectives across Countries and Cultures (New York: Zed Books, 1998), which discusses a seven-country ethnographic project conducted by the International Reproductive Rights Action Group (IRRRAG) documenting "the local contexts and ways of thinking in which women in their everyday lives negotiate reproductive health and sexual matters" (p. 1). The stories and expressions of sexual selves given by the participating women are an important contribution to questions about the relations of violence and women's experience of sexuality.
    • (1998) Negotiating Reproductive Rights: Women's Perspectives Across Countries and Cultures
    • Petchesky, R.P.1    Judd, K.2
  • 33
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    • note
    • The concept of "sexual minorities" is variously used to include gay, lesbian, transgendered, transsexual, bisexual-identified, and fetishist per-sons, as well as practitioners of sadomasochism (S/M) and sex workers, even though these terms describe different aspects of sexuality, such as choice of object of desire/partner (orientation) and practice (S/M) or sex for money (sex work), which limits neither the partner nor the practice.
  • 34
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    • note
    • One recent example of this approach in the sexual and reproductive rights world can be found in the International Planned Parenthood Federation Charter on Sexual and Reproductive Rights (London: IPPF, 1996), p. 18.
  • 35
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    • Report of the International Conference on Population and Development, 5-13 September 1994, UN Doc. A/Conf/171/13 18 October para. 7.3
    • A list of reproductive rights might include the right to decide responsibly the number and spacing of children. See, for a partial listing, the Programme of Action of the United Nations International Conference on Population and Development, Report of the International Conference on Population and Development, 5-13 September 1994, UN Doc. A/Conf/171/13 (18 October 1994), para. 7.3.
    • (1994) Programme of Action of the United Nations International Conference on Population and Development
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    • Sexual Rights as Human Rights
    • Martin Scheinin makes the additional point that it is a conceptual and doctrinal mistake to "equate a right with one specific provision in a human rights treaty." He postulates that the treaty provisions should be used to identify core obligations of legal rights attached (he uses the metaphor of "strings") to the ratifying State party but also to signal normative obligations connected to other third parties, such as intimate partners, that are enforced by the state. See M. Scheinin, "Sexual Rights as Human Rights," Nordic Journal of International Law 1998, 67: 17-35.
    • (1998) Nordic Journal of International Law , vol.67 , pp. 17-35
    • Scheinin, M.1
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    • Conjuring Up New Human Rights: A Proposal for Quality Control
    • The strategic implications of proclaiming a "new right" versus arguing the application of existing rights to newly emerging facts are vast and contentious. One of the critical issues must be the ability of the existing frame to respond to the new claim or claimant while remaining consistent with its principles of development. Feminists applying gendered analyses to rights frameworks, as well as other activists working on development and rights or indigenous peoples' rights, have critiqued the failure of current rights practice to live up to its own conceptual underpinnings of indivisibility, interrelatedness, and universality, and they have demanded new concepts of rights to reach previously ignored areas. For an alternative perspective, see P. Alston, "Conjuring Up New Human Rights: A Proposal for Quality Control," American Journal of International Law 1984, 78: 607-21.
    • (1984) American Journal of International Law , vol.78 , pp. 607-621
    • Alston, P.1
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    • art. 27, opened for signature 12 August 75 U.N.T.S.287, 305 (Geneva Convention IV)
    • Humanitarian law has also shown a preoccupation with female sexuality in the context of communal honor and personal chastity. The Geneva Conventions, for example, state that women shall be "especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 27, opened for signature 12 August 1949, 75 U.N.T.S.287, 305 (Geneva Convention IV).
    • (1949) Geneva Convention Relative to the Protection of Civilian Persons in Time of War
  • 39
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    • Utrecht: Foundation against Trafficking in Women [STV]
    • International Agreement for the Suppression of the White Slave Trade (Paris, 1904), International Convention for the Suppression of the White Slave Trade (Paris, 1910), International Convention for the Suppression of the Traffic in Women and Children (Geneva, 1921), and UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949). For an analysis of the developments and rights implications of the history of treaty work against "trafficking," see, e.g., L. Lap-Chew and M. Wijers, Trafficking in Women, Forced Labour and Slavery Like Practices (Utrecht: Foundation against Trafficking in Women [STV], 1997).
    • (1997) Trafficking in Women, Forced Labour and Slavery Like Practices
    • Lap-Chew, L.1    Wijers, M.2
  • 40
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    • Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy
    • J. Doezema and K. Kempadoo, New York: Routledge
    • For an analysis of the recent human rights-based focus on force in anti-trafficking work and how it may obscure attention to the human rights abuses against those in prostitution who do not fall within the "forced" category, see J. Doezema, "Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy," in J. Doezema and K. Kempadoo, Global Sex Workers: Rights, Resistance and Redefinition (New York: Routledge, 1998), 34-50.
    • (1998) Global Sex Workers: Rights, Resistance and Redefinition , pp. 34-50
    • Doezema, J.1
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    • G.A. Res. 217A [III], UN GAOR, Res. 71, UN Doc. A/810 art. 16
    • also citing the Universal Declaration of Human Rights [UDHR], G.A. Res. 217A [III], UN GAOR, Res. 71, UN Doc. A/810 [1948], art. 16), but they failed to speak to the gender-specific enabling conditions in law, the economy, or the community necessary to make such concepts of choice meaningful. Also lacking was a conception of the sexually autonomous female outside of marriage.
    • (1948) Universal Declaration of Human Rights [UDHR]
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    • General Recommendation 19, UN Doc. HIR/GEN/1/Rev.2 (29 March 1996)
    • General Recommendation 19, UN Doc. HIR/GEN/1/Rev.2 (29 March 1996).
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    • note
    • Article 16 of the Women's Convention (see note 25) states that women shall have the "same rights to decide freely and responsibly on the number and spacing of their children, and have access to the information, education, and means to do so." This principle is further elaborated in General Recommendation 21, UN Doc. HRIGEN/1/Rev.2 (2 March 1996).
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    • GA res. 44/25, UN GAOR, 44th Sess., UN Doc A/44/25 art. 34 and 35.
    • Convention on the Rights of the Child, GA res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc A/44/25 (1989), art. 34 and 35. The author was present at an NGO meeting hosted by the UN Department of Public Information in 1988 at which a representative of a NGO gay and lesbian youth organization was met with incredulous looks by the drafters and NGO participating organizations when he asked if the treaty encompassed the right of a child to determine her or his sexual identity.
    • (1989) Convention on the Rights of the Child , Issue.49 SUPPL. , pp. 166
  • 49
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    • Dordrecht: Martinus Nijhoff
    • France and the Netherlands, for example, noted that the intent of Article 34 was "not to regulate the sexual life of children but rather to combat their sexual exploitation on the basis of concrete examples." See S. Detrick (ed), The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Preparatoires" (Dordrecht: Martinus Nijhoff, 1992), p. 434. Thanks to Penelope Saunders for bringing this to my attention.
    • (1992) The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Preparatoires" , pp. 434
    • Detrick, S.1
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    • Children Confronting HIV/AIDS: Charting the Confluence of Rights and Health
    • For an example of a progressive use of the CRC to support children's rights to evolving sexual capacity, see D. Tarantola and S. Gruskin, "Children Confronting HIV/AIDS: Charting the Confluence of Rights and Health," Health and Human Rights 1998, 3(1): 60-86.
    • (1998) Health and Human Rights , vol.3 , Issue.1 , pp. 60-86
    • Tarantola, D.1    Gruskin, S.2
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    • note
    • The application of human rights standards to heterosexual and homosexual conduct has been paradoxical. For example, some adult consensual homosexual conduct outside marriage attract rights protections by definition, primarily through privacy rights and, in recent cases, nondiscrimination rights. Conversely, consensual adult heterosexual conduct outside of marriage (defined in various legal systems as adultery or fornication), heterosexual nonreproductive sex (through some sodomy statutes and other "unnatural sexual acts" statutes), and other adult sexual behaviors such as commercial sex work have never been the successful subject of a treaty based rights claim.
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    • Women's Rights as Human Rights: Toward a Re-Vision of Human Rights
    • C. Bunch, "Women's Rights as Human Rights: Toward a Re-Vision of Human Rights," Human Rights Quarterly 1990, 12: 486-98.
    • (1990) Human Rights Quarterly , vol.12 , pp. 486-498
    • Bunch, C.1
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    • note
    • On denials of privacy or equality in family life, see, for example, Abdulaziz, Cabales and Balkandali, ECHR, ser. A (1985). On protection from sexual violence, see X &Y v. The Netherlands, 91 ECHR, ser. A (1985), which applied the established obligation to take positive steps to protect rights in private life to a case of sexual violence (holding that a legal structure that denied a young woman with mental retardation the capacity to seek prosecutorial redress for coercive sexual activity violated her rights to private life) at para. 33 and 34. See also S.W. v. UK, ECHR, ser. A, vol. 335B (1995), and C.R. v. UK, ECHR, ser. A, vol. 335C (1995), in which the Court ruled that the lack of statutory marital rape offenses was not a bar to their prosecution under the common law, as "the essentially debasing character of rape is so manifest . . . [that] the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife . . . cannot be said to be at variance" with the goals of the Convention (para. 42). On sexual content in speech and education, see HRC, Hertzberg v. Finland, Comm. No. 14/61, UN GAOR Hum. Rts. Comm., 37th Sess., Supp. No. 40, UN Doc. A/37/40 (1982), and Handyside v. UK, 24 ECHR, ser. A. On information on access to abortion or contraception, see Open Door Counseling, Well Women Centre and Others v. Ireland, 246 ECHR, ser. A (1992).
  • 54
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    • note
    • Nicholas Toonen v. Australia, UN GAOR, Hum. Rts. Cte., 15th Sess., Case 488/1992, UN Doc. CCPR/C/50/D/488/1992 (April 1994). The Human Rights Committee, which monitors the International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966), is empowered to hear individual complaints through a special protocol. It stated that laws penalizing same-sex male sexual behavior violated Articles 2 (nondiscrimination) and 17 (privacy). This interpretation was made possible by holding that, in the list of prohibited categories of discrimination in Article 2, the word "sex" encompassed "sexual orientation."
  • 55
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    • note
    • Among the cases that stress this point is Rees v. United Kingdom, 106 ECHR (ser. A) (1986), in which the Court held that there are "positive obligations inherent in an effective respect for private life," although it also held that denial of the ability to change sex on a birth certificate for a post-operative transsexual was not a violation of Article 8.6
  • 56
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    • Human Rights Aspects of Transsexualism
    • The European Court and Commission of Human Rights and the European Court of Justice have both addressed the rights of transsexuals. For a summary of the implications of these cases, see G. Niveau, M. Ummel, and T. Harding, "Human Rights Aspects of Transsexualism," Health and Human Rights 1999, 4(1): 134-64.
    • (1999) Health and Human Rights , vol.4 , Issue.1 , pp. 134-164
    • Niveau, G.1    Ummel, M.2    Harding, T.3
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    • note
    • The European Court, however, did not extend privacy protections to prohibit the prosecution of same-sex sadomasochistic behavior. In Laskey, Jaggard and Brown v. UK, 1 ECHR, ser. A (1997), also known as the "Spanner case," the Court accepted the government's rationale that its interference with private life was justified by the interest of protecting public health from "assaultive, injurious" behavior. It also disingenuously stated that it would have reached the same decision if the defendants had been engaged in heterosexual S/M practices.
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    • Aydin v. Turkey, ECHR (25 September 1997); Raquel Martin de Mejia v. Peru, Report No 5/96, Case 10.970, OEA/Ser.L/V/II.911 doc. 7 rev. (1996)
    • Aydin v. Turkey, ECHR (25 September 1997); Raquel Martin de Mejia v. Peru, Report No 5/96, Case 10.970, OEA/Ser.L/V/II.911 doc. 7 rev. (1996).
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    • Rape as a Crime under International Humanitarian Law
    • On sexual violence in armed conflict, see T. Meron, "Rape as a Crime under International Humanitarian Law," American Journal of International Law 1993, 87: 424-28;
    • (1993) American Journal of International Law , vol.87 , pp. 424-428
    • Meron, T.1
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    • Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals
    • and K. D. Askin, "Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals," American Journal of International Law 1999, 93: 97.
    • (1999) American Journal of International Law , vol.93 , pp. 97
    • Askin, K.D.1
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    • New York: Routledge
    • Both the Special Rapporteur on Violence against Women, Its Causes and Consequences and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions have in the last three years begun to highlight the extent to which female sexuality is controlled by coercion and fatal violence. See the Report of the Special Rapporteur, Ms. Asma Jihangir, on Extrajudicial, Summary or Arbitrary Executions (note 38), in which she discusses certain practices "where husbands, fathers, or brothers have gone unpunished after having murdered their wives, daughters or sisters. . . . [T]his practice is resorted to when a woman is believed to have engaged in a sexual relationship with a man . . . " (para. 74). The Rapporteur on Violence against Women has also addressed "violence by the communities because of [women's and girl children's] sexuality and sexual behaviour." Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy (see note 38), para. 8. As rights activists highlight the importance of the formal rights system responding to these kinds of violations, they would do well to heed Uma Narayan's insight that global or outsider activists must be historically and politically acute in the retellings of such abuses, embedded as they are in politics and culture, to avoid simplifying them to "death by culture." U. Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminisms (New York: Routledge, 1997), pp. 83-113.
    • (1997) Dislocating Cultures: Identities, Traditions and Third World Feminisms , pp. 83-113
    • Narayan, U.1
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    • Opinion No. 2/1998 (United Arab Emirates), UN Doc. E/CN.4/1999/63/Add.1 9 November
    • Opinion No. 2/1998 (United Arab Emirates), Opinions Adopted by the Working Group on Arbitrary Detention, UN Doc. E/CN.4/1999/63/Add.1 (9 November 1998).
    • (1998) Opinions Adopted by the Working Group on Arbitrary Detention
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    • Symposium: Shifting Grounds for Asylum: Female Genital Surgery and Sexual Orientation
    • For a recent review of the status of asylum claims based on sexual orientation or gay or lesbian identity, see "Symposium: Shifting Grounds for Asylum: Female Genital Surgery and Sexual Orientation," Columbia Human Rights Law Review 1998, 29: 467-531.
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    • Female Genital Mutilation
    • A. Wolper and J. S. Peters (eds), New York: Routledge
    • Several jurisdictions, including Australia, Canada, France, Sweden, the U.K., and the U.S., recognize potential claims on the grounds that FGM causes severe pain and permanent physical harm. International advocacy on the health rights implicated in FGM, including sexual health rights, has suggested that some notion of sexual rights underpins these asylum decisions as sexual rights decisions, and in some cases the factfinders do frame the claims in this way. But compare the difference in the breadth of rights affected in the analysis in N. Toubia, "Female Genital Mutilation," in A. Wolper and J. S. Peters (eds), Women's Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995) pp. 224-37, with the conceptualization of harm in In re Kasinga, 351.L.M. 1145 (1996) BIA Appeals (13 June 1996) as "a severe bodily invasion" practiced in part "to overcome sexual characteristics of young women of the tribe . . . "(p. 11).
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    • Toubia, N.1
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    • Censorship and Manipulation of Reproductive Health Information: An Issue of Human Rights and Women's Health
    • L. Coliver (ed), London: Article 19
    • See, for example, the description by L. Freedman, "Censorship and Manipulation of Reproductive Health Information: An Issue of Human Rights and Women's Health" in L. Coliver (ed), The Right to Know: Human Rights and Access to Reproductive Health Information (London: Article 19, 1995), 1-31.
    • (1995) The Right to Know: Human Rights and Access to Reproductive Health Information , pp. 1-31
    • Freedman, L.1
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    • note
    • The case law on reproductive rights arising in the regional human rights systems has primarily addressed abortion. See, for example, Dublin Well Woman Centre et al v. Ireland, 246 ECHR, ser. A (1992), or Case 2141 (United States), "Baby Boy case," res. 23 (6 March 1981) doc. 9, rev. 1, OEA/Ser.L./V/II.54 in the Americas.
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    • See D. Otto, "Lesbians? Not in My Country: Sexual Orientation at Beijing World Conference on Women," Alternative Law Journal 1995, 20: 288-90.
    • (1995) Alternative Law Journal , vol.20 , pp. 288-290
    • Otto, D.1
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    • See Parker (note 2), Otto (note 51), and Miller, Rosga, and Satterthwaite (note 2)
    • See Parker (note 2), Otto (note 51), and Miller, Rosga, and Satterthwaite (note 2).
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    • Rights to Sexual and Reproductive Health: The ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women
    • Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 24 (20th sess., 1999) on women and health. Editor's note: See C. Shalev, "Rights to Sexual and Reproductive Health: The ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women," Health and Human Rights 2000, 4(2): 38-66.
    • (2000) Health and Human Rights , vol.4 , Issue.2 , pp. 38-66
    • Shalev, C.1
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    • note
    • For example, the Human Rights Committee recently asked critical questions of Poland regarding access to abortion and reproductive information. Summary record of the 1765th meeting: Poland, 04/08/99, CCPR/C/SR.1765 (SR).
  • 84
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    • Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status
    • For a review of sexual violence claims in the international tribunals, see K. Askin, "Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status," American Journal of International Law 1999, 93: 97-123.
    • (1999) American Journal of International Law , vol.93 , pp. 97-123
    • Askin, K.1
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    • Human Rights and Reproductive Self-Determination
    • See, for example, R. Cook, "Human Rights and Reproductive Self-Determination," American University Law Review 1995, 44: 975-1016;
    • (1995) American University Law Review , vol.44 , pp. 975-1016
    • Cook, R.1
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    • Gender, Health and Human Rights
    • R. Cook, "Gender, Health and Human Rights," Health and Human Rights 1995, 1(4): 350-66;
    • (1995) Health and Human Rights , vol.1 , Issue.4 , pp. 350-366
    • Cook, R.1
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    • Promotion and Protection of Women's Rights to Sexual and Reproductive Health under International Law: The Economic Covenant and the Women's Convention
    • L. Freedman (note 6)
    • L. Freedman (note 6); A. Hendriks, "Promotion and Protection of Women's Rights to Sexual and Reproductive Health under International Law: The Economic Covenant and the Women's Convention," American University Law Review 1995, 44: 1123-44; and
    • (1995) American University Law Review , vol.44 , pp. 1123-1144
    • Hendriks, A.1
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    • The Nature and Scope of Human Rights Obligations Concerning Women's Right to Health
    • D. Sullivan, "The Nature and Scope of Human Rights Obligations Concerning Women's Right to Health," Health and Human Rights 1995, 1: 368-98.
    • (1995) Health and Human Rights , vol.1 , pp. 368-398
    • Sullivan, D.1
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    • Article 7 UN G.A. Res. 2106A(XX)
    • The obligation under Article 5 of the Women's Convention (see note 25) to use "appropriate measures" to modify the cultural beliefs of men and women has interesting potential here. Such measures could shift perspectives on women's lives so that they are no longer defined by their relationship to the ideal of "chaste daughter" or "good mother." Similarly, Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination (Race Convention), UN G.A. Res. 2106A(XX) (1965), could also be used to modify racist assumptions about the sexuality of women or men of different ethnic or racial groups.
    • (1965) Convention on the Elimination of All Forms of Racial Discrimination (Race Convention)
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    • The Sexuality Connection in Reproductive Health
    • R. Dixon-Mueller, "The Sexuality Connection in Reproductive Health," Studies in Family Planning 1993, 24: 269.
    • (1993) Studies in Family Planning , vol.24 , pp. 269
    • Dixon-Mueller, R.1
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    • Gupta (see note 2), p. 55. See also Freedman (note 6); New York: Routledge, and Correa and Petchesky (note 3)
    • Gupta (see note 2), p. 55. See also Freedman (note 6); J. M. Mann, S. Gruskin, M. A. Grodin, and G. J. Annas (eds), Health and Human Rights: A Reader (New York: Routledge, 1999); and Correa and Petchesky (note 3).
    • (1999) Health and Human Rights: A Reader
    • Mann, J.M.1    Gruskin, S.2    Grodin, M.A.3    Annas, G.J.4
  • 92
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    • Gupta (see note 2), p. 55
    • Gupta (see note 2), p. 55.
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    • Violence against Women: Translating International Advocacy into Concrete Change
    • L. Heise, "Violence against Women: Translating International Advocacy into Concrete Change," American University Law Review 1995, 44: 1207-12,
    • (1995) American University Law Review , vol.44 , pp. 1207-1212
    • Heise, L.1
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    • Negotiating the Relationship of HIV/AIDS to Reproductive Health and Reproductive Rights
    • and S. Gruskin, "Negotiating the Relationship of HIV/AIDS to Reproductive Health and Reproductive Rights," American University Law Review 1995, 44: 1191-1206.
    • (1995) American University Law Review , vol.44 , pp. 1191-1206
    • Gruskin, S.1
  • 95
    • 85062121939 scopus 로고    scopus 로고
    • Correa and Petchesky (see note 3), p. 107
    • Correa and Petchesky (see note 3), p. 107.
  • 96
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    • Parker (see note 2), p. 34
    • Parker (see note 2), p. 34.
  • 97
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    • Correa and Petchesky (see note 3), 113-15
    • Correa and Petchesky (see note 3), 113-15.
  • 98
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    • note
    • See Rubin (note 10) for a radical reconceptualization of the good sex/bad sex hierarchy which leaves non-heteronormative sex outside of the framework of traditional feminist discourses on rights and sexuality. Personal communications with Carole Vance and Lynn Freedman have also helped the author to clarify the limitations of rights work that leaves persons "free" to choose a sexual option perceived to be degraded.
  • 101
    • 85062137416 scopus 로고    scopus 로고
    • note
    • Of course, for heterosexual procreative practices, such de-linking relies on key interventions such as contraception and abortion and on rights such as the right to choose not have sex without contraception, which are the staples of reproductive rights and health.
  • 102
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    • note
    • Gupta (see note 2) writes: "[H]ow should we state our cause to ensure the sexual health and human dignity of individuals? We must learn from the experience of the international women's human rights movement. Casting women's right to self-determination as an individual right was immediately used to create a discourse of false polarities and dichotomies . . ." (p. 59).
  • 103
    • 85062142653 scopus 로고    scopus 로고
    • note
    • See note 37 above on the use of health concerns as the basis for intervening in consensual S/M practices. Extensive historical work on the medicalization and regulation of sexuality has demonstrated the dangers of this approach. Ambivalence toward the often very productive strategy of mobilizing around "healthy" sexuality, however, is more subtle. One clear challenge facing a human rights approach to sexual health as an element of sexual rights will be to grapple with the nature of structures that have promoted "enriching" concepts of sexual health without denying rights application to sexual encounters that occur outside of structures of intimacy, if that is what the participants choose, as in the edgy sexual practices of "cruising." Erotic nontraditional but consensual sexuality may not always be so easy to describe once the apparently self-explanatory norms proscribing sex "free of disease" or "free of violence" are used to delimit the parameters of good sex.
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    • Nondiscrimination is one of the fundamental norms of rights. It is found in Article 1.3 of the UN Charter, Articles 1 and 2 of the UDHR (see note 24), Articles 2 and 26 of the ICCPR (see note 34), and Article 2 G.A. Res. 2200 (XXI), UN GAOR, 21st Sess., UN Doc. A/6316
    • Nondiscrimination is one of the fundamental norms of rights. It is found in Article 1.3 of the UN Charter, Articles 1 and 2 of the UDHR (see note 24), Articles 2 and 26 of the ICCPR (see note 34), and Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966).
    • (1966) International Covenant on Economic, Social and Cultural Rights (ICESCR) , Issue.16 SUPPL. , pp. 49
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    • The Public Health-Human Rights Dialogue
    • Boston: International Federation of Red Cross and Red Crescent Societies and Harvard School of Public Health
    • It is also found in Article 3 of the ICCPR and Article 3 of the ICESCR with regard to equality of men and women, as well as in Article 2 of the CRC (see note 28). Nondiscrimination on specific bases is also contained within the Race Convention (see note 58) and the Women's Convention (see note 25). The limits on a government's ability to restrict rights is bounded by a jurisprudence evaluating whether the limitation or restriction is necessary to secure the rights and freedoms of others or to meet the just requirements of public order, morality, and the general welfare or specific needs in times of emergency. Each of these limitations is subject to a review, determining whether it is the least invasive alternative and whether it is proportionate and consistent with the goals of the human rights treaty system. For a summary of legitimate restrictions relevant to health rights in particular, see International Federation of Red Cross and Red Crescent Societies and François-Xavier Bagnoud Center for Health and Human Rights, "The Public Health-Human Rights Dialogue," in AIDS, Health and Human Rights: An Explanatory Manual (Boston: International Federation of Red Cross and Red Crescent Societies and Harvard School of Public Health, 1995), pp. 39-47.
    • (1995) AIDS, Health and Human Rights: An Explanatory Manual , pp. 39-47
  • 106
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    • Introduction
    • UN Doc. HR/PUB/91/1 UNCHR/UNITAR: Geneva
    • The seminal statement setting out these obligations is found in A. Eide, "The New Economic Order and the Promotion of Human Rights," in a Report by the Special Rapporteur on the Right to Food, UN Doc. E/CN.4/Sub.2/1987/23, para. 66-69. The concept has been widely accepted throughout human rights work. See, for example, P. Alston, "Introduction," in Manual on Human Rights Reporting, UN Doc. HR/PUB/91/1 (UNCHR/UNITAR: Geneva: 1991).
    • (1991) Manual on Human Rights Reporting
    • Alston, P.1
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    • Princeton: Princeton University Press
    • See W. Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995) for a U.S.-focused development of this idea, in part derived from Foucault's work on sexuality and power.
    • (1995) States of Injury: Power and Freedom in Late Modernity
    • Brown, W.1
  • 109
    • 85062142069 scopus 로고    scopus 로고
    • Correa and Petchesky (see note 3), p. 107
    • Correa and Petchesky (see note 3), p. 107.
  • 110
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    • note
    • Correa and Petchesky (see note 3) group these imperatives as "ethical content: bodily integrity, personhood, equality, and diversity" (pp. 113-18). Copelon, Gruskin, and Toubia (see note 3) group the human rights concerns as autonomy/capacity to make decisions, health/healthful conditions, non-discrimination/diversity, and participation/empowerment (pp. 7-27).
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    • Sexual Preference as a Suspect (Religious) Classification: An Alternative Perspective on the UnConstitutionality of Anti-Lesbian/Gay Initiatives
    • See, for example, Article 18 of the ICCPR (note 34), which states in part that everyone has the right "to have or adopt" a religion or belief of his or her choice and recognizes the link between religious identity and the freedom to manifest this belief. However, the Declaration of Human Rights in Islam, which does not hold the status of a government treaty but is nonetheless politically significant as a governmentally organized consensus statement (however disingenuous or nonrepresentative its processes), reiterates the conventional governmental position that the freedom to change religion is not a right. This example is not meant to imply that sexual expression analogous to religious expression, although some commentators are now making this argument. See D. A. J. Richards, "Sexual Preference as a Suspect (Religious) Classification: An Alternative Perspective on the UnConstitutionality of Anti-Lesbian/Gay Initiatives," Ohio State Law Journal 1994, 55: 491-552.
    • (1994) Ohio State Law Journal , vol.55 , pp. 491-552
    • Richards, D.A.J.1
  • 112
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    • note
    • M. Scheinin (see note 20) argues that the private manifestation of sexuality has been accepted as protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature by the Council of Europe on November 4, 1950; entered into force on 3 September 1953) and Article 17 of the ICCPR (see note 34) but notes that not all consensual activity falls within absolute protections of private life. Recall that although S/M practices, as noted above, were held to be part of private life, health concerns were held to justify state intervention. Similarly, sex work has been found to be outside the sphere of private life protections, and adultery laws have not to the author's knowledge been challenged as violations of private life.
  • 113
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    • The Principle of Equality or Non-Discrimination in International Law
    • A. F. Bayevsky, "The Principle of Equality or Non-Discrimination in International Law," Health Rights Law Journal 1990, 11(1-2): 1-34.
    • (1990) Health Rights Law Journal , vol.11 , Issue.1-2 , pp. 1-34
    • Bayevsky, A.F.1
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    • Strasbourg: N. P. Engel
    • See also M. Nowak, CCPR Commentary: UN Covenant on Civil and Political Rights (Strasbourg: N. P. Engel, 1993) for a discussion of Article 17 privacy rights as "Identity, Integrity, Intimacy, Autonomy and Communication." Scheinin also notes Nowak's analysis as indicative of the reach of private life to public practice.
    • (1993) CCPR Commentary: UN Covenant on Civil and Political Rights
    • Nowak, M.1
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    • Tolerance and Homosex: A Policy of Control and Containment
    • W. Morgan and K. Walker, "Tolerance and Homosex: A Policy of Control and Containment," Melbourne University Law Review 1995, 20: 206.
    • (1995) Melbourne University Law Review , vol.20 , pp. 206
    • Morgan, W.1    Walker, K.2
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    • The Many Faces of Sexual Consent
    • See W. Eskridge, "The Many Faces of Sexual Consent," William and Mary Law Review 1995, 37: 47-67, for a discussion of the various conditions that invalidate consent, such as coercion, age, kinship, extramarital activity, mental disability, same-sex status, economic inducement, and form of sex (S/M, sodomy). Rubin's discussion of sex laws and hierarchies of good and bad sex challenges many assumptions of status around which policies, including human rights policies, are made (see note 10).
    • (1995) William and Mary Law Review , vol.37 , pp. 47-67
    • Eskridge, W.1
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    • Girl Lured off the Internet
    • 25 October Columbia School of Public Health
    • Judith Levine voiced this formulation in a presentation entitled Girl Lured Off the Internet, given in the Seminar on Sexuality, Gender, Health and Human Rights, 25 October 1999, Columbia School of Public Health.
    • (1999) Seminar on Sexuality, Gender, Health and Human Rights
    • Levine, J.1
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    • note
    • For example, removing sexuality from the penumbra of reproduction may serve as a reminder that many older, post-menopausal women wish to exercise sexual autonomy and need rights protection. An important collaborative seven-country study by the International Reproductive Rights Action Group (IRRAG) found that many older women in countries as diverse as Nigeria, Brazil, and the U.S., after they produced their fami-ly, expressed "a sense of entitlement in reproductive and sexual decision making." Petchesky and Judd (see note 16), p. 210.
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    • Femininity as Subversion: Reflections on the Muslim Concept of Nushuz
    • D. Eck and D. Jain (eds), Philadelphia: New Society Publishers
    • Freedman (see note 6) discusses the work of Fatima Mernissi, among others, on the implications of the Qur'anic concept of nushuz (women's rebellion) in relation to the fear of individualism as explaining "much about the rise of religious extremism and its focus on the behavior of women in some parts of the world today" (p. 346, note 28). See F. Mernissi, "Femininity as Subversion: Reflections on the Muslim Concept of Nushuz," in D. Eck and D. Jain (eds), Speaking of Faith (Philadelphia: New Society Publishers, 1993), p. 250.
    • (1993) Speaking of Faith , pp. 250
    • Mernissi, F.1
  • 120
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    • Dignity, Community and Human Rights
    • A. AnNa'im (ed), Philadelphia: University of Pennsylvania Press
    • R. E. Howard, "Dignity, Community and Human Rights," in A. AnNa'im (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992) 81-102, for her provocative insights into lack of direct correlation between traditional concepts of dignity and justice and human rights.
    • (1992) Human Rights in Cross-Cultural Perspectives: A Quest for Consensus , pp. 81-102
    • Howard, R.E.1
  • 122
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    • New York: St. Martin's Press
    • See C. Howland (ed), Religious Fundamentalisms and the Human Rights of Women (New York: St. Martin's Press, 1999) for examples of women arguing for rights, including sexual rights, within and outside or in distinction from religious traditions.
    • (1999) Religious Fundamentalisms and the Human Rights of Women
    • Howland, C.1
  • 123
    • 85062124288 scopus 로고    scopus 로고
    • Freedman (see note 6), p. 338
    • Freedman (see note 6), p. 338.
  • 124
    • 85062121666 scopus 로고    scopus 로고
    • Fried and Landsberg-Lewis (see note 3)
    • Fried and Landsberg-Lewis (see note 3).
  • 125
    • 85062142280 scopus 로고    scopus 로고
    • Narayan (see note 41), pp. 43-55
    • Narayan (see note 41), pp. 43-55.
  • 126
    • 85062138090 scopus 로고    scopus 로고
    • note
    • One example is the 1998 Declaration of Human Rights from a Gender Perspective: Contributions to the 50th Anniversary of Universal Declaration of Human Rights by the Latin American and Caribbean Committee for the Defense of Women's Rights (CLADEM), which includes the following formulation of sexual and reproductive rights: "All human beings have the right to autonomy and self-determination in the exercise of their sexuality, which includes the right to sexual pleasure, the right to freedom of sexual orientation, the right to education and freedom of information on sexuality. . . ." Also notable in this field is the IGLHRC/Lesbian Rights Caucus petition (see note 51). Profamilia's current campaign on sexual and reproductive health (Programa de Cooperación Sur-Sur en Salud Sexual y Reproductiva en Latinoamérica y el Caribe) includes a module on health and rights for explicit application across a diverse group of women.
  • 127
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    • Parker (see note 2), p. 35, citing Rosalind Petchesky's work
    • Parker (see note 2), p. 35, citing Rosalind Petchesky's work.


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