Rewriting Human Rights Decisions
Edited by Eva Brems and Ellen Desmet
Chapter 9: Developing the full range of state obligations and integrating intersectionality in a case of involuntary sterilization: CEDAW Committee, 4/2004, AS v Hungary
In this chapter, the author has rewritten a CEDAW case concerning coerced sterilization of a Roma woman. The CEDAW Committee established violations of three CEDAW provisions. Article 10(h) CEDAW obliges states to ensure access to information and advice on family planning. Article 12 CEDAW concerns access to health care services, including those related to family planning, as well as ‘appropriate services in connection with pregnancy, confinement and the post-natal period’. Article 16(1)(e) CEDAW states the equal right of men and women ‘to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’. This rewriting exercise, which draws inspiration from ECtHR cases as well as from concluding observations of CAT, CERD and HRC, has two objectives: (1) beefing up the legal reasoning; and (2) adding a minority rights perspective (intersectionality). Under the first objective, the rewrite adds an explicit positive state obligation of a preventive nature, as well as a positive state obligation to investigate, and expands the references to external sources. Under the second objective, the rewritten text emphasizes two dimensions of the minority experience, by adding a cultural perspective, and an emphasis on vulnerability and marginalization.
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