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VI. International Legal Standards

International human rights law addresses violence against women and girls directly, establishing a duty on the part of the state to prevent sexual and domestic violence and to effectively prosecute and punish those who perpetrate it.  Authoritative interpretations of international human rights law furthermore suggest that all women have the right to decide independently in matters related to abortion, without interference from the state or others. 

Children enjoy special protections under international law.  The child is recognized as an active subject of rights, who must be allowed to exercise her rights independent “in a manner consistent with the evolving capacities of the child”²⁶¹and who must be heard in all matters that affect them.²⁶²  At the same time, international law acknowledges the potential vulnerability of the child and provides special guarantees to protect “the best interests of the child”²⁶³ and  “to protect the child from all forms of sexual exploitation and sexual abuse.”²⁶⁴ 

This report indicates that Mexico falls short of its international obligations in all of these aspects.  All human rights treaties to which Mexico is a party, including CEDAW, the Convention on the Rights of the Child, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), and the American Convention on Human Rights, are directly applicable in Mexico, and take precedence over state laws.²⁶⁵ 

International Law and Violence against Girls and Women in Mexico

International human rights law applicable in Mexico establishes violence against women—including sexual violence—as a form of discrimination²⁶⁶ and as a human rights violation in its own right.²⁶⁷  For girls under eighteen, the Convention on the Rights of the Child furthermore establishes an obligation on the part of state parties to “protect the child from all forms of physical or mental violence … including sexual abuse” as well as from “all forms of sexual exploitation and sexual abuse.”²⁶⁸ 

International law and authoritative interpretations of the law also recognize that violence prevents women and girls from exercising their human rights and that violence against women is closely related to violence against children in the home.²⁶⁹  This connection was highlighted in 2003 by Susana Villarán, then-special rapporteur on women’s rights for the Inter-American Commission on Human Rights, in her report on the violence in Ciudad Juárez in Mexico:

Violence against women is, first and foremost, a human rights problem.  It has been accorded priority in the region as such, with the conviction that its eradication is essential to ensure that women may fully and equally participate in all spheres of national life.  Violence against women is a problem that affects men, women and children; it distorts family life and the fabric of society, with consequences that cross generations.  Studies have documented that having been exposed to violence within the family during youth is a risk factor for perpetrating such violence as an adult.  It is a human security problem, a social problem and a public health problem.²⁷⁰

In light of this, and as a party to central human rights treaties on women’s human rights, Mexico has an obligation to take all appropriate legal, administrative, and social measures as may be needed to “prevent, punish and eradicate violence against women,”²⁷¹ to provide “adequate protection” against “family violence and abuse, rape, sexual assault and other gender-based violence,”²⁷² and to protect children from all forms of violence.²⁷³  In addition, all persons under Mexican jurisdiction have the right to prompt judicial protection and relevant remedies for violations of their human and constitutional rights.²⁷⁴ 

The CEDAW Committee,²⁷⁵ which monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),²⁷⁶ has repeatedly expressed its concern with Mexico’s failure to prosecute and punish cases of violence against women.  The Committee on the Rights of the Child, which monitors the implementation of the CRC, has made a similar statement with regard to the “serious problem” of physical and sexual abuse of children both within and outside the family in Mexico.²⁷⁷

In 1998, the CEDAW committee recommended that state laws on violence against women be adjusted to conform with national laws.²⁷⁸  The Committee also recommended a number of actions to ensure accountability for violence against women, including legal action, training judicial, law enforcement and health personnel, awareness-raising, and strengthening victims’ services. ²⁷⁹  In 2002, the committee repeated its pleas in this regard, expressing “great concern at the violence against women in Mexico, including domestic violence, which continues to go unpunished in several states.”²⁸⁰  Specifically, the committee requested that Mexico “take steps to ensure that women victims of such violence can obtain reparation and immediate protection” and “to train health-care workers, police officers and staff of special prosecutors’ offices in human rights and dealing with violence against women.”²⁸¹

In 2003, two CEDAW experts visited Mexico to conduct an inquiry into the abduction, rape, and murder of women in Ciudad Juárez, Chihuahua.  The committee experts concluded that the situation in Ciudad Juárez constituted a clear violation of the CEDAW convention, ²⁸² and noted that they had been notified of similar patterns of violence elsewhere in Mexico.²⁸³ 

The Inter-American Commission on Human Rights, the entity which until recently was the main overseeing body monitoring the implementation of the Convention of Belém do Pará,²⁸⁴ referred to the prevailing impunity for violence against women in Mexico in a 1998 report, and recommended that Mexico “adopt such urgent and effective measures of a juridical, educational and cultural nature as required to put an end to domestic violence against women, a serious problem that affects Mexican society.”²⁸⁵

These measures were still lacking in 2003, when the special rapporteur on women’s rights for the Inter-American Commission on Human Rights released a report based on her investigation of the Mexican government’s response to the violence against women in Ciudad Juárez.²⁸⁶  In her report, the special rapporteur noted that “there remains a significant tendency on the part of some officials to either blame the victim for placing herself in a situation of danger, or to seek solutions that emphasize requiring the victim to defend her own rights.”²⁸⁷  The special rapporteur further lamented the general impunity for domestic and sexual violence and its contribution to continuing violations of women’s human rights:

[Domestic and sexual] violence … has its roots in concepts of the inferiority and subordination of women. When the perpetrators are not held to account … the impunity confirms that such violence and discrimination is acceptable, thereby fueling its perpetuation. … [T]he Commission has emphasized that the failure to effectively prosecute and punish indicates that the State in effect condones it.  …  It creates a climate that is “conducive to domestic violence” because society sees no will on the part of the State to take effective action against it.²⁸⁸

In 1999, the Committee on the Rights of the Child expressed concern that “physical and sexual abuse [against children]—within and outside the family—is a serious problem in [Mexico]” and recommended, inter alia “that law enforcement be strengthened with respect to such crimes, [and] that adequate procedures and mechanisms to deal effectively with complaints of child abuse should be reinforced in order to provide children with prompt access to justice.”²⁸⁹

Human Rights Watch’s research for this report indicates that, in many states, the legal framework to prevent and punish violence against women and girls continues to be nonexistent or seriously deficient, and certainly below minimum international standards. 

International Law and Abortion after Rape or Incest

Where abortions are legal, they must be safe: public health systems should train and equip health service providers and take other measures to ensure that such abortions are not only safe but accessible.
—U.N. Special Rapporteur on the Right to the Highest Attainable Standard of Health²⁹⁰

Authoritative interpretations of international law recognize that obtaining a safe and legal abortion is vitally important to women’s effective enjoyment and exercise of their human rights, in particular rights to equality, life, health, physical integrity, and the right to decide on the number and spacing of children.²⁹¹  These interpretations sustain the conclusion that decisions about abortion belong to a pregnant woman alone, whether she was raped or not, without interference by the state or others.  Any restrictions on abortion that unreasonably interfere with a woman’s exercise of her full range of human rights should be rejected. 

The 1994 ICPD Programme of Action²⁹² was the first international consensus document to put forward the idea that abortion services, where legal, need to meet certain standards.   The ICPD Programme of Action states “[i]n circumstances where abortion is not against the law, such abortion should be safe.”²⁹³  Since 1994, U.N. treaty bodies have consistently linked a pregnant woman’s right to decide about abortion without interference with her right to nondiscrimination and to equal enjoyment of other human rights.  Treaty bodies have been particularly emphatic that abortion should be legal, safe, and available for rape victims, and have recommended that Mexico amend its laws to facilitate access to abortion.

U.N. Treaty Body Concern with Legal Obstacles to Abortion after Rape or Incest

U.N. treaty bodies have expressed particular concern with legislation that restricts access to legal and safe abortion after rape and incest.  It is noteworthy that Mexican state laws do not allow for abortion after incest, in a prima facie contravention of international law as interpreted by these treaty bodies.

Moreover, international human rights law protects the right to noninterference with one’s privacy and family,²⁹⁴ as well as the right of women to decide on the number and spacing of their children without discrimination.²⁹⁵  These rights can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state.  In the case of a pregnancy resulting from rape or incest, abortion is the only way for a woman or girl to exercise this right.

The CEDAW Committee has often recommended that states parties review legislation prohibiting abortion to meet their obligation to eliminate discrimination against women,²⁹⁶ as set out in detail in its General Recommendation No. 24 on women and health: “When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.”²⁹⁷ 

In its concluding remarks on Colombia the CEDAW Committee has expressed the view that restrictive abortion laws are contrary to the rights to nondiscrimination, health and life:

The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. No exceptions are made to that prohibition, including where the mother’s life is in danger or to safeguard her physical or mental health or in cases where the mother has been raped. …  The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention [the right to health care without discrimination].²⁹⁸

In 1998, moreover, the CEDAW Committee recommended to Mexico “that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”²⁹⁹

The Human Rights Committee has likewise noted with concern the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives, and has recommended the review or amendment of punitive and restrictive abortion laws.³⁰⁰   In 2004, the Committee recommended the review of Colombian laws restricting abortion after rape and incest:

[The Committee] is especially concerned that women who have been victims of rape or incest or whose lives are in danger as a result of their pregnancy may be prosecuted for resorting to such measures (art. 6) [the right to life].  The State party should ensure that the legislation applicable to abortion is revised so that no criminal offences are involved in the cases described above.³⁰¹

In the case of Chile, where abortion has been illegal in all circumstances since 1986, the Committee noted that clandestine abortions can be a threat to women’s lives, a statement that is relevant for Mexico where many rape victims—despite their right to a legal abortion—still see themselves forced to undergo clandestine and sometimes unsafe operations:

The criminalization of all abortions, without exception, raises serious issues, especially in the light of unrefuted reports that many women undergo illegal abortions that pose a threat to their lives. … The State party is under a duty to take measures to ensure the right to life of all persons, including pregnant women whose pregnancies are terminated. …. The Committee recommends that the law be amended so as to introduce exceptions to the general prohibition of all abortions.³⁰²

In the case of Peru, the Committee went further to note that the penal code provisions of that country—which subject women to criminal penalties even when the pregnancy is the result of rape--are incompatible with the rights to equal enjoyment of other rights protected by the International Covenant on Civil and Political Rights (ICCPR), life, and freedom from torture and other cruel, inhuman, or degrading treatment or punishment, as protected by the ICCPR:

It is a matter of concern that abortion continues to be subject to criminal penalties, even when pregnancy is the result of rape.  Clandestine abortion continues to be the main cause of maternal mortality in Peru. … The Committee once again states that these provisions are incompatible with articles 3 [equal enjoyment of rights], 6 [right to life], and 7 [right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment] of the Covenant and recommends that the legislation be amended to establish exceptions to the prohibition and punishment of abortion.³⁰³

In its 2001 concluding observations on Guatemala—a country with stricter restrictions on abortion than those in Mexico—the Human Rights Committee noted that “the State has the duty to adopt the necessary measures to guarantee the right to life (art. 6) of pregnant women who decide to interrupt their pregnancy by providing the necessary information and resources to guarantee their rights and amending the legislation to provide for exceptions for the general prohibition of all abortions except where the mother’s life is in danger.”³⁰⁴

The Committee on the Rights of the Child has in its 2003 General Comment on adolescent health and development placed particular emphasis on the physical and mental health risks related to early pregnancy, and has urged States parties to provide adequate services, including abortion services where they are not against the law:

Adolescent girls should have access to information on the harm that … early pregnancy can cause, and those who become pregnant should have access to health services that are sensitive to their rights and particular needs. States parties should take measures to reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents. Young mothers, especially where support is lacking, may be prone to depression and anxiety, compromising their ability to care for their child. The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, including … safe abortion services where abortion is not against the law.³⁰⁵

The Committee on the Rights of the Child has also, in concluding observations on specific countries, expressed concern with the illegality of abortion for underage rape victims.  In 2001, the Committee noted with regard to Palau: “The Committee notes that abortion is illegal except on medical grounds and expresses concern regarding the best interests of child victims of rape and/or incest in this regard. … The Committee recommends that the State party review its legislation concerning abortion, with a view to guaranteeing the best interest of child victims of rape and incest.”³⁰⁶

U.N. Treaty Body Concern with Administrative Obstacles to Abortion after Rape or Incest

In addition to a general concern with restrictive abortion laws, the U.N. Human Rights Committee has expressed its concern with obstacles to abortion where it is legal.  These statements have referred to situations similar to those exposed in this report, and therefore are relevant for Mexico.

In 2000, for example, the Committee noted with regard to Argentina: “The Committee is concerned that the criminalization of abortion deters medical professionals from providing this procedure without judicial order, even when they are permitted to do so by law.”³⁰⁷  In its General Comment on the right to equal enjoyment of civil and political rights, the Human Rights Committee also requested that governments provide information in their periodic reports about access to safe abortion for women who have become pregnant as a result of rape, as relevant to its evaluation of the implementation of this right.³⁰⁸

The right to information, certainly as it relates to the right to health, includes both the negative obligation for a state to refrain from interference with the provision of information by private parties and a positive responsibility to provide complete and accurate information necessary for the protection and promotion of reproductive health and rights, including information about abortion.³⁰⁹  Human rights law further recognizes the right to nondiscrimination in access to information and health services, as in all other services.³¹⁰  Women stand to suffer disproportionately when information concerning safe and legal abortion is withheld.

The American Convention on Human Rights mandates judicial protection for human and constitutional rights—which in Mexico include the right to abortion after rape or incest—and stipulates that state parties to the Convention will ensure a prompt and adequately enforced judicial remedy for violations of such rights.³¹¹  Where rape and incest victims have limited access to legal abortion after rape, this right has arguably been infringed.