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Sovereignty of state, body and life – The limits of states legislative capabilities in regards to abortion – Part 2

The future of abortion is more likely to be determined by the development of public morality in the states than by a logical development of previous case-law. Photo: Liv&Rätt

This is part 2 of two of the essay Sovereignty of state, body and life – The limits of states legislative capabilities in regards to abortion published at the University of Uppsala.

4 Abortion under UN treaties

Of the international human rights treaties the ones from UN are the most widely ratified, with the International Covenant on Civil and Political Rights (hereafter ICCPR) and Convention on the Elimination of All Forms of Discrimination Against Women (hereafter CEDAW) having near universal participation. These treaties do not mention abortion so any such right must be provided implicitly. This is where interpretations of the committees become important, especially some recent “views” (which are similar in shape to judgements) adopted by the Human Rights Committee (hereafter HRC) interpreting ICCPR as giving a right to abortion. It should also be mentioned that the ICCPR implies some protection of the unborn in article 6 § 5. The UN Committee on the Elimination of Discrimination against Women recommends legalizing abortion in its non-binding documents.21

Before we go into the actual decision of HRC we must ascertain the binding force of its views. The HRC is not called a court and does not name its conclusions as judgements. The HRC ambiguously expresses its powers as being not “that of a judicial body” but that it “exhibit some important characteristics of a judicial decision” including “the determinative character of the decisions”.22 Unlike the judgements of actual courts however neither the ICCPR or the Optional Protocol to the International Covenant on Civil and Political Rights (hereafter ICCPR protocol 1) state that the decisions of the HRC are legally binding, only that the convention itself is binding. It should be noted that the ICCPR protocol 1 does not expand the binding force of the HRC decisions, but only enables individual citizens to communicate possible violations of the ICCPR. This can be compared to the ECHR where article 46 explicitly requires states to abide by the judgements of the ECtHR.

My conclusion is therefore that the views and general comments of the HRC are not legally binding but, being charged with monitoring if states adhere to the covenant, its views are highly authoritative. This conclusion follows from that the HRC, even in its own view, is not a judicial body and if its views would be legally binding it would in fact become just that, namely a judicial body or court, in everything but name. This position is further strengthened by the fact that states, even democratic states such as France, sometimes choose not to accept the HRC views.23 It must be pointed out however that even if the HRC views are not legally binding the ICCPR still is. This mean that states must adhere to the HRC views in so far as they correctly interpret the ICCPR, which should be a presumption. This conclusion may be at odds with HRC: s own view concerning its binding force.24 HRC: s statements does not make clear whether the obligation to follow its views is based upon a legal requirement to follow the view itself ipso jure or simply because HRC considers its interpretation of ICCPR to be correct. HRC does argue however that an obligation to cooperate with the committee arises from the “principle of good faith”25, a principle which according to the ICJ does not create an obligation where it would not otherwise exist.26

The crucial thing determining whether a state is bound to obey a HRC-view is thus to examine whether or not the view reflects an obligation existing prior to the view was adopted by interpreting the treaty according to the VCLT section 3. This follows from the principle of sovereignty which means that a state cannot be bound without consent.

This brings us to the actual cases. In earlier views the HRC had found that denying a woman an abortion when this should be granted under national law was a breach of several ICCPR provisions, including article 7.27 In 2016 however the committee found that Ireland breached ICCPR provisions by failing to provide abortion to a woman with a child likely to die in her womb (but the woman’s life was not endangered).28 The great difference compared to earlier cases is that Irelands refusal was in accordance with national law, whilst in earlier cases the abortion should have been provided according to national law. If the view taken by the HRC correctly interprets ICCPR the consequences are immense due to the near universal participation in ICCPR.

HRC claims that Ireland breached article 7 and submitted Mellet to cruel, inhuman or degrading treatment by a combination of factors such as not granting her an abortion, that the only way to attain an abortion was by traveling abroad, by not informing her about abortion options abroad and by the stigma due to abortion being criminalised. In my view this interpretation is not compatible with the provision to interpret the treaty in good faith and in the ordinary meaning of terms as required by VCLT article 31 § 1. To start with article 7 forbids the state from subjecting anyone to cruel treatment but in this case the state has not commissioned any treatment. The state’s action is one of omission, and is not self-evident that article 7 impose a positive obligation. The second problem is that it is highly questionable if a provision against torture and similar treatment reasonably could or would have been understood as obliging Ireland (or any other state) to kill a dying child in its mother’s womb at the time the state consented to the provision. In my view this could not have been the case. Interpreting article 7 so extensively is questionable according to the wording itself, but especially considering the very large number of states (90) prohibiting abortion under similar circumstances it is unreasonable to assume that states have agreed to such an obligation when they ratified the covenant.

The same problems regarding positive obligation and state consent applies to the committees reasoning about article 17 (right to privacy). HRC also found however that Ireland’s decision to interfere with Mellets decision to have an abortion by preventing her from having it in Ireland was arbitrary and therefore violated her right to privacy. HRC: s view is remarkable considering that the Irish law is the very opposite of arbitrary being instead very predictable about allowing abortion only when the mother’s life is under threat. The wording of article 17 brings the thought to interference for reasons of state security, such as surveillance, searches and so on, and these are the kind of examples given in the general comment.29 The use of “arbitrary” in article 17 as an alternative to unlawful suggests a case where the state lawfully may interfere with anyone and does so in a random manner. This is certainly not the case with Ireland however whose interference (if an omission may adequately be called interference) by not allowing abortion unless there is a threat to the life of the mother is anything but random, being clearly defined and strictly followed. The committee also fails to explain why the balance in Irish law between the right of the mother and the protection of the foetus cannot be justified.

In the end HRC also found that Ireland violated article 26 due to discrimination between the healthcare provided after a termination of pregnancy due to miscarriage and the healthcare provided after termination of pregnancy due to abortion. Since this application does not directly affect the ability of the state to prohibit abortion as such it falls outside of the scope of the essay and will not be further analysed.

The conclusion is that the view adopted by the HRC in Mellet v. Ireland regarding access to abortion does not reflect obligations existing in ICCPR prior to the view and therefore neither Ireland nor any other state are bound by its conclusions. So far Ireland has agreed to pay compensation to Mellet and provide her with psychological treatment but has yet to make any commitment to change its law.30 It remains to be seen how Ireland and the other 90 states having similar laws, almost all parties to ICCPR, will react to the view.

5 Abortion under European regional law

5.1 The European Union

Unlike the ECtHR the European Court of Justice (hereafter ECJ) have not dealt much with the issue of abortion. The ECJ have declared that abortion is a service within the meaning of article 60 of the Treaty establishing the European Economic Community, now replaced by article 57 of the Treaty on the Functioning of the European Union, but at the same time the court also declared that a state may supress information on abortion services abroad when the clinics who provide the service are unconnected to those spreading the information.31 Indirectly this case recognizes that an EU member state may choose to ban abortion within its own boundaries. It remains unclear however if a state that bans abortion in its own territory may restrict access to abortion services in another EU-state where such activities are legal.32 This is due to a lack of case law regarding abortion in EU-law and contradictory case law regarding restriction of services which are illegal in one member state but legal in another.33

5.2 The Council of Europe

Just like most of the treaties mentioned above the ECHR does not mention abortion explicitly. Despite this the ECtHR and the European Commission of Human Rights (hereafter commission, between 1954 and 1998 admissibility was determined by the commission) have dealt with several cases concerning abortion. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine does not intend to cover the issue of abortion however which was made clear in the preparatory works.34

It should be pointed out that unlike the HRC views discussed above the states are bound to follow the decision of the ECtHR according to ECHR article 46 § 1. Considering the discussion of the principle of sovereignty above it can be questioned if a state is really bound even if the court would act ultra vires, that is to say outside of its legal framework. The court states that the ECHR is a living document and as such it is in an evolutionary process.35 Personally I am highly critical to this approach which may result in states being bound by things they clearly did not agree to when becoming parties, violating the principle of sovereignty and thereby the democratic institutions the state represent. An example of this is how criminalisation of male homosexuality was declared a breach against article 8 despite such laws existing in several states at the time of signing the convention in 1950.36 In some cases however the commission used the laws of the states in 1950 to interpret whether states had agreed to cover abortion in article 2 ECHR, the same method I used above while interpreting the ICCPR and HRC: s view Mellet v. Ireland.37 Regardless if the ECtHR have acted ultra vires or not in a specific case the fact is that states in general abide by the decisions in accordance with ECHR article 46 § 1. My conclusion is therefore that the states themselves consider the judgements of ECtHR to be binding even in cases where the court may be acting ultra vires.

Regarding the unborn the ECtHR and the commission have rejected that the foetus is protected by the ECHR. In several cases where fathers have sought to prevent their wife’s or partners legal abortion, the commission have declared the application inadmissible and rejected the use of article 2, 3, 8, 9 claiming that the issue of abortion fell within the states margin of appreciation.38 In the case Evans v. UK the court even refused embryos a continued development despite the genetical mother, whose embryos had been created in vitro and not yet implanted into the uterus, wanted to proceed but the genetical father withdrew his consent in accordance with a written contract and UK-law. In the interesting case Vo v. France a mother claimed that article 2 should mean that a doctor could be prosecuted for unintentionally causing her foetus death but the court avoided the question if the foetus is protected under article 2.39

The conclusion from the cases above is that the unborn does not have any protection from an abortion under ECHR, at least not when this process is legal under national law. This does not mean however that the states must provide abortion. In the case Brüggemann and Scheuten v. Germany the commission declared an application inadmissible when the applicant requested an abortion contrary to national law and also rejected a right to practice abortion in Jean-Jacques Amy v. Belgium. The ECtHR did not recognize a right to abortion in in Silva Monteiro Martins Ribeiro v. Portugal and have in a number of cases respected the part of the Irish constitution that bans abortion except in order to save a mother’s life.40 There are many cases however showing that when abortion is legal the state must make sure that abortion really can be accessed.41 The same goes for medical tests which women use to determine whether they wish to have a legal abortion.42

My conclusion is therefore that the ECHR does not provide a right to abortion where no such right exists under national law. When abortion is legal in the state however the right to abortion under national law must be a right in reality rather than theory and as such accessible. In A, B and C v. Ireland the court found a violation of ECHR not because of a right to abortion under article 8 but because C could not have her possible right to an abortion under national law assessed.43 It remains unclear however how the ECtHR would handle a case where the state would ban abortion even if the pregnancy threatens the life of the mother, since no such case have appeared before the court.44

Another aspect worth mentioning is abortion abroad. In the case Open Door and Dublin Well Woman v. Ireland, which concerned a similar issue as the ECJ Grogan case above, the ECtHR found that Irelands restrictions on spreading information of abortions services abroad pursued a legitimate aim but was disproportionate and thus a breach under article 10.45 It must be noted however that this conclusion was affected by that obtaining abortion abroad was not criminal (or at least not punishable) under Irish law.46 It is therefore possible that the court would come to a different conclusion had abortion been criminalized for all citizens regardless of territorial limits. It should also be noted that the ECtHR: s decision implicitly leaves open the possibility that a state may criminalize abortion abroad.

6 Conclusions

The purpose of this essay was to examine if there is a right to abortion under international law and whether a European state may ban or limit abortion. The conclusion is that there is no international law binding upon European states requiring them to provide abortion. This is because no right to abortion follow from international custom and the only treaty providing a right to abortion is the Maputo Protocol which has no European parties. The result is therefore that any state not bound by the Maputo Protocol article 14 may limit abortion if it so wishes. If a right to abortion exists under national law however, international treaties like the ECHR and the ICCPR require that this right is not merely theoretical but accessible in reality. This limits the freedom of states in so far that they cannot restrict abortions in an arbitrary or incoherent manner. However a complete ban such as that in Malta is neither arbitrary nor incoherent.

It remains to be seen how the international law will develop in this area. It is interesting to note how the HRC have chosen to stand in the vanguard advocating a right to abortion when the ECtHR have been more cautious. Perhaps this is due to the fact that the HRC views are more often ignored and not binding anyway and therefore the HRC may be more willing to act like a lobby group compared to the ECtHR whose judgements are binding and the court also have a respectable reputation among states to protect.

In my own opinion the future of abortion is more likely to be determined by the development of public morality in the states than by a logical development of previous case-law. In the wake of secularization the traditional Christian ethics where duty rather than consequence determined what was right have largely been replaced by utilitarian ethics where value is determined by pleasure, thus allowing the killing of unborn presumably unable to experience sorrow and elderly or sick presumably unable to experience joy. The philosophy upon which the public opinion depends will ultimately determine the national laws, the content of future international treaties and the composition of judges in the international courts.

 

21 CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health) § 31.c.
22 General Comment No 33 – The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights § 11.
23 See General Comment No 33 – The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights § 18; Sitaropoulos, Nikolaos, “States are Bound to Consider the UN Human Rights Committee’s Views in Good Faith”, Oxford Human Rights Hub, 11 March 2015 (8 December 2016), http://ohrh.law.ox.ac.uk/states-are-bound-to-consider-the-un-human-rights-committees-views-in-good-faith/; compare with Zampas, Christina, Gher, Jamie, “Abortion as a Human Right – International and Regional Standards”,  Human Rights Law Review 8:2, Oxford University Press 2008 p. 253.
24 General Comment No 33 – The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights §§ 14-15.
25 General Comment No 33 – The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights § 15.
26 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, Z.C.J. Reports 1988, p. 69 § 94.
27 United Nations, Human Rights Committee, Communication No. 1153/2003 (K.L. v Peru); United Nations, Human Rights Committee, Communication No. 1608/2007 (L.M.R. v Argentina).
28 United Nations, Human Rights Committee, Communication No. 2324/2013 (Mellet v Ireland).
29 General Comment No. 16: Article 17 (Right to Privacy) – The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation § 8.
30 Leahy, Pat, “Government will not give UN commitment to change abortion laws”, The Irish Times, 30 November 2016 (8 December 2016), https://www.irishtimes.com/news/social-affairs/government-will-not-give-un-commitment-to-change-abortion-laws-1.2887535.
31 C-159/90 Grogan.
32 Craig, Paul, De Burca, Grainne, EU Law – Texts, Cases and Materials, 5 edition, Oxford University Press 2011 p. 797.
33 Craig, Paul, De Burca, Grainne, EU Law – Texts, Cases and Materials, 5 edition, Oxford University Press 2011 p. 797-798.
34 Council of Europe, Directorate General of Legal Affairs, Steering Committee on Bioethics (CDBI) Convention on the protection of Human Rights and Dignity of the Human Being with regard to the application of Biology and Medicine: Convention on Human Rights and Biomedicine, CDBI/INF (2000) 1 Provisional, p. 135.
35 See e.g. Tyrer v. UK § 31 and Vo v. France § 82.
36 Dudgeon v. UK; Norris v. Ireland.
37 X v. UK § 20; Brüggemann and Scheuten v. Germany § 64.
38 X v. UK; R.H. v. Norway and Paton v. UK.
39 Vo v. France §§ 85, 95.
40 A, B and C v. Ireland and Open Door and Dublin Well Woman v. Ireland.
41 A, B and C v. Ireland concerning C, Tysiąc v. Poland and P and S. v Poland.
42 A.K v. Latvia and R.R. v. Poland.
43 A, B and C v. Ireland §§214, 222, 253, 267-268.
44 See also Zampas, Christina, Gher, Jamie, “Abortion as a Human Right – International and Regional Standards”,  Human Rights Law Review 8:2, Oxford University Press 2008 p. 261-262.
45 Open Door and Dublin Well Woman v. Ireland §§ 63, 80.
46 Open Door and Dublin Well Woman v. Ireland §§ 72-74.

 

Lucas Eriksson, LL.M. Master of Laws at the University of Uppsala

 

 

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