Implementation of International Human Rights Law: A Discourse Theoretical Study Illustrated by the Right to Family Planning in Indonesian Law
Abstract: Discourse theory methodology provides an alternative and novel framework for human rights implementation as a topic of legal research. By conceptualising implementation of international human rights norms in a national legal context as a play of discourses competing for hegemony, it becomes possible to explore the workings of human rights constructions as well as where and how implementation fails or succeeds. This study offers an example of human rights implementation approached through discourse theory methodology, using the right to family planning in Indonesia as an illustrative case. Since the introduction in 1998 of the democratic reforms known as Reformasi, Indonesia has undergone significant legal reform, including in the field of human rights and family planning related law. The right to family planning is constructed in the International Human Rights Domain by a discourse on sexual and reproductive health. In addition, it is given content and meaning by a discourse on autonomy, whereby the right to family planning is constructed as a right to make informed decisions on the number, spacing and timing of children, and to be free from violence and coercion. Through this construction, the right to family planning is established as an individual-based right, and women enjoy a special position hereto. In contrast, in the Indonesian Law Domain the right to family planning is constructed by a health discourse and a discourse on the prosperous family. The right to family planning is thus constructed as a health-related right, and a right to form and develop a prosperous family. The relevant subjects are primarily married individuals and family members. Individuals in their own capacity are thereby excluded by the discourses as rights-holders with respect to family planning. Women are identified as the primary users of contraception, but decision-making rests equally with both spouses. In the Reform Domain, as exemplified by draft Indonesian legislation, there are two dominating discourses that construct the right to family planning: one on reproductive health and one on the qualitative family. There is also an emerging discourse on autonomy. ‘Reproductive rights’ and ‘reproductive health’ are central to the reconstructed right to family planning. However, the discourses still position married persons as the relevant subjects and exclude unmarried persons as rights-holders. In conclusion, the right to family planning has become more inclusive in scope, but is still restricted in terms of who is considered relevant as a rights-holder. Three main conclusions regarding human rights implementation can be drawn from this case study. First, the implementation process of international human rights norms into a national legal system is not as direct or uncomplicated as it is sometimes perceived in the modernity paradigm. Second, inclusion of key words or ‘umbrella definitions’ such as ‘reproductive health’ and ‘reproductive rights’, without the equivalence chain of the international human rights discourses, gives an impression of human rights implementation, but actually serves to mask the discrepancies between the construction in the International Human Rights Domain and the national domain. Because of their inclusiveness, umbrella definitions run the risk of becoming ‘empty’. Third, this situation is made possible by, and due to, the construction of the right in the International Human Rights Domain itself. Hence, the present study illustrates how maximisation or proliferation of human rights does not necessarily serve its intended purpose of extending the scope of the right so as to benefit as many individuals as possible.
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