Conceptualising restrictions on abortion and involuntary sterilisation procedures as torture or cruel, inhuman or degrading treatment

The notion that international law is a gendered legal system which prioritises those matters that disproportionately affect men above those matters that disproportionately affect women provides the context for this thesis, which contemplates a gendered approach to the right to be free from torture and other cruel, inhuman or degrading treatment (CIDT). Accordingly, this thesis challenges the essentialism inherent in the traditional, male-centric conceptualisation of torture and CIDT by conceptualising restrictions on women’s reproductive freedom within the framework of the right to be free from torture and CIDT. Consequently, this thesis contributes to a feminist understanding of international human rights by examining restrictions on reproductive freedom through the lens of the right to be free from torture and CIDT. In order to achieve this objective, this thesis asks and answers the following key question: Can restrictions on reproductive freedom be categorised as torture? It answers this question by analysing each element of the definition of torture set out in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.* After concluding that both restrictions on abortion and involuntary sterilisation procedures frequently fall within each element of the article 1 definition of torture, this thesis proceeds to consider whether, if one of the elements of torture is not established in a given situation, restrictions on reproductive freedom can be categorised as CIDT. Ultimately, it concludes that in many cases, all of the elements of the definition of torture will be established in the case of both restrictions on abortion and involuntary sterilisation procedures. However, it also acknowledges that in some cases, an element will be missing. Where the missing element is the element that distinguishes torture from CIDT, the conduct in question will constitute CIDT. Where a different element is missing, the conduct will constitute degrading treatment if it is particularly humiliating. If the necessary level of humiliation is absent, then it will not constitute torture, inhuman treatment or degrading treatment. Through this analysis, this thesis makes a significant contribution to international legal scholarship. While there have been indications at the international human rights level that at least some restrictions on reproductive freedom violate the prohibition of torture and CIDT, there has been no thorough, systematic analysis of how, why and which restrictions on reproductive freedom constitute torture or CIDT. This thesis provides such an analysis and constructs a normative framework thereby extending the current trajectory of incorporating women’s concerns into the international legal framework along its logical path. In addition, while the scholarship to date has traditionally viewed restrictions on abortion and involuntary sterilisation procedures as completely separate issues, to be addressed in different ways and fora, this thesis adds to the literature by demonstrating the commonalities between both of these forms of restrictions on reproductive freedom and by considering them through the lens of the right to be free from torture and CIDT.