This is part 1 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.
1.1 Aim and limits
The aim of this essay is to examine whether there is a right to abortion under international law including European regional law. Conversely the aim is to examine if and how a European state is able to limit or ban abortion under international law. Regional international law outside of Europe will only be dealt with in so far it explicitly gives a right to abortion or protects the foetus from conception. Since European states do not force abortion upon women the question whether a state may do abortions without consent will not be dealt with.
For the purposes of this essay the term abortion will be used for terminating a pregnancy where the development of the offspring is taking place in the mother, thus excluding destruction of human organisms produced in vitro that have not yet been placed within a woman’s womb. This limitation is in order limit the size of the essay rather than as a statement of the differences between abortion of a pregnancy and abortion outside of a pregnancy.
Despite rapid scientific advances the issue of abortion is not a new one. The practice was known and practiced in the pagan Roman and Greek societies alongside infanticide, but opposed by Hippocrates and the Christians.1 Abortion was made illegal in the Christian west and remained so until limited legalisation took place in the west during first half on the 20th century and widespread legalisation began around the 1970s. In Eastern Europe USSR made abortion available on demand from 1920 and abortion became very common in communist countries from the 1950s onward (despite USSR restricting abortions during 1936-55).2 Today abortion is legal in most countries under some circumstances and legal on demand in most European countries. Whilst abortion is most common in secularized countries, even forced upon in communist China, the main forces opposing the growth of abortion is found in religious countries, especially in Latin America and Islamic world.3
In Europe abortion is illegal without exceptions in Malta and the Vatican City whilst being severely restricted in Poland and Ireland. At the same time abortion is commonly proclaimed as a human right which makes the question of its status under international law relevant today especially in context of the Polish government’s recently defeated attempt to restrict abortion even further.4 Even Russia, succeeding the USSR as one of the most liberal countries regarding abortion, has begun restricting abortion since 2011.5
1.3 Method and material
The main principle in international law is sovereignty, which means that a state is free to do as it wishes within its own boundaries.6 This also means that a state cannot be put under any international legal obligation without consent.7 The freedom of the states is only limited by their commitments under international law meaning that unless abortion is regulated in international law the states themselves are free to decide whether to allow or ban abortions. The presumption is thus that a state may choose to ban abortion unless prevented to do so by an accepted source of international law. This presumption serves as a starting point for the essay.
The essay will examine whether applicable international custom, international treaties or general principles of law places any obligation upon the states in this matter. Whilst not all international lawyers agree upon what the sources of international law are, no one really doubts that the ones listed in the Statute of the International Court of Justice (hereafter ICJ-Statute) article 38 are among them.8
The method used for examining international custom will be a comparative study of the law of nations whilst the method used for international treaties will be an interpretation the text following the rules of interpretation laid out in Vienna Convention on the Law of Treaties (hereafter VCLT) Section 3 and judicial decisions by courts such as the European Court of Human Rights (hereafter ECtHR) which states have agreed is legally binding.9
Since the aim is to determine actual binding international law any non-binding documents will be treated with care. This includes soft law documents such as recommendations of monitoring bodies, unless the content of these documents have become part of binding international law. This is especially important if these documents are made long after the states ratified the convention and thus not necessarily reflecting what the states actually agreed to be bound by, remembering the principle of sovereignty.
The essay will first examine whether there is an independent right to abortion under international law. If no such general right exists, then the essay will examine if such a right may be derived from other rights, and under which circumstances such a right may be claimed under international law.
2 Abortion under international custom
An international customary obligation upon the state may grant a right to an individual; in fact one oldest of the customary obligations, the prohibition of slavery, does exactly that. According to the ICJ-Statute article 38 § 2 an international custom is evidenced by a general practice accepted as law. This means that for a right to abortion to be a part of international custom it must both be in general practice and accepted by the states as an obligation under international law.10 It should be noted that the mere fact that a state breaks against international custom does not ipso facto mean that there is no customary obligation. If that would be the case then custom would never impose an obligation. The important prerequisite is rather that the states believe that they are under obligation. Thus the fact that a state allows abortion does not necessarily mean that they do so out of customary obligation, in fact many if not most rights that states grant their citizens under national law are not due to customary obligation.
According to a UN-report in 2013 abortion was illegal without exceptions in 6 countries, four in Latin America and two in Europe.11 In another 49 or 50 countries (see footnote about South Sudan) abortion was only allowed in order to save a woman’s life, however in 21 of these countries this exception is not stated explicitly in the law but follows indirectly from principles of criminal law.12 An additional 34 countries allowed abortion only for preserving the mother’s health.13 These criteria are interesting because they all balance the mother’s and the child’s right to health, implying that these states in some sense regard the unborn child as a person whose life is worthy of protection. When abortion is allowed for other reasons such as rape or foetal disability the implication is the opposite since a person’s right to life hardly can depend upon the crime of his or her father or on disability. According to the same UN-report abortion was legal on demand in 58 countries.14
The conclusion of the high number of states severely restricting abortion means that there is no right to abortion on demand under international custom. The fact that 6 countries ban abortion also shows that there is no international custom giving right to abortion even if there is a threat to the life of the woman, considering that states cannot be bound by international law without consent.15 This is especially true since the listing of the national law does not specify if the states that do allow abortion do so due to a sense of international obligation, part of the second criteria in the ICJ-Statute article 38 § 2, or simply because the state finds it prudent.16 The same conclusion is implied by that a right to abortion is not provided in any international treaties except the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereafter the Maputo Protocol) article 14 which is ratified by 36 nations of which several has made reservations regarding the article. At the same time it must be pointed out that the fact that 58 countries allow abortion on demand proves that the foetus does not have any rights under international customary law, at the very least not during the early stages of the pregnancy.
The International Court of Justice (hereafter ICJ) has been open to the possibility of regional custom, binding only states in a particular region.17 Turning to Europe abortion is illegal under any circumstance in two states (Malta and the Vatican City State) and legal only for saving the woman’s life in an additional three states (Ireland, Andorra and San Marino, the latter only allow it indirectly due to principles in criminal law).18 This shows that even though the majority of European states allow abortion on demand there does not appear to exist a regional custom obliging states to provide abortion. This is further enhanced by a (non-binding) resolution from the Parliamentary Assembly of the Council of Europe from 2008 inviting member states to decriminalize abortion, not on the basis of any pre-existing obligation but on the claim that bans on abortion leads to clandestine abortions and abortion tourism.19
3 International treaties explicitly mentioning abortion
If a right to abortion follow from any treaty binding upon European states, the obligation must be implicit because the only international treaty explicitly providing a right to abortion is the Maputo Protocol. This protocol is binding upon member states of the African Union that have ratified it and not made a reservation regarding article 14 (which several states have done). Article 14 § 2.c of the protocol puts an obligation upon states to allow abortion when the child is conceived through “sexual assault, rape, incest” and “where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus”.
The only treaty explicitly giving the unborn a right to life from conception, at least “in general” according to its wording, is the American Convention on Human Rights article 4 § 1.20 The provision prevents abortion, at least abortion on demand, due to that the article states that no one should be deprived of life arbitrarily whilst claiming that life begins at conception. The convention parties are all located in Latin America and the Caribbean (Mexico made a reservation against article 14). This means that the convention is of no direct importance for a European state.
1 See Oath of Hippocrates, available at https://www.nlm.nih.gov/hmd/greek/greek_oath.html, 7 February 2012 (5 December 2016) and Didache 2:2 available at http://www.newadvent.org/fathers/0714.htm unknown publication date (5 December 2016).
2 See the statistics of abortions in Russia/USSR and compare with USA: Johnston, Robert, “Historical abortion statistics, Russia”, 13 September 2015 (27 December 2016), Johnston’s Archive, http://www.johnstonsarchive.net/policy/abortion/ab-russia.html; Johnston, Robert, “Historical abortion statistics, United States”, Johnston’s Archive, 24 April 2016 (27 December 2016), http://www.johnstonsarchive.net/policy/abortion/ab-unitedstates.html. Regarding USSR policy see LaFraniere, Sharon, “Abortions Lead to Widespread Infertility”, The Moscow Times, 25 February 2003 (27 December 2016), http://old.themoscowtimes.com/news/article/tmt/240209.html/.
3United States Department of State, Country Reports on Human Rights Practices for 2015 – China (includes Tibet, Hong Kong, and Macau), p. 54; Mosher, Steve, “Fact-Check: No, Hillary, China has not stopped doing forced abortions”, National Right to Life News Today, 26 October 2016 (4 December 2016) http://www.nationalrighttolifenews.org/news/2016/10/fact-check-no-hillarychina-has-not-stopped-doing-forced-abortions/#.WB_W-vnhCUm/; Tozzi, Piero, International Law and the Right to Abortion, Catholic Family and Human Rights Institute 2010 p. 9.
4 Center for reproductive rights, Safe and Legal Abortion is a Woman’s Human Right, publication date unknown (4 December, 2016) https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_fac_safeab_10.11.pdf; Unknown, “Poland abortion: Parliament rejects near-total ban”, BBC News, 6 October 2016 (5 December 2016), http://www.bbc.com/news/world-europe-37573938.
5 Kishkovsky, Sophia, “Russia Enacts Law Opposing Abortion”, The New York Times, 15 July 2011 (27 December 2016), http://www.nytimes.com/2011/07/15/world/europe/15iht-russia15.html.
6 See among others the Charter of the United Nations article 2 § 1 and 7; SS Lotus  Publ. PCIJ, Series A, no. 10.
7 Klabbers, Jan, An Introduction to International Organisations Law, 3 Edition, Cambridge University Press 2015 p. 21-22. Under this presumption it is hard to explain how a new state becomes bound by international custom existing prior to its creation. This criticism has been brought forth against some international rules by many former colonies unwilling to be bound by rules they have not participated in creating.
8 Abass, Ademola, Complete International Law, 2 edition, Oxford University Press 2014 p. 28; Klabbers, Jan, International Law, Cambridge University Press 2015 p. 24-25.
9 See ECHR article 46 § 1.
10 Abass, Ademola, Complete International Law, 2 edition, Oxford University Press 2014 p. 34-35.
11 United Nations, Department of Economic and Social Affairs, World abortion policies, United Nations 2013.
12 United Nations, Department of Economic and Social Affairs, World abortion policies, United Nations 2013; The UN report does not give any data for South Sudan but the nation seem to allow abortion only if the woman’s life is threatened, however it is unclear when this law came into effect, Stopes, Maria, “South Sudan”, Women on Waves, publication date unknown (6 December 2016), https://www.womenonwaves.org/en/page/5209/south-sudan.
13 United Nations, Department of Economic and Social Affairs, World abortion policies, United Nations 2013.
14 United Nations, Department of Economic and Social Affairs, World abortion policies, United Nations 2013.
15 Klabbers, Jan, An Introduction to International Organisations Law, 3 edition, Cambridge University Press 2015 p. 21.
16 Abass, Ademola, Complete International Law, 2 edition, Oxford University Press 2014 p. 34 ff.
17 Colombian-Peruvian asylum case, Judgment of November 20th 1950: I.C. J. Reports 1950, p. 266, see p. 276-277; Case concerning Right of Passage over Indian Territory (Merits), Judgement of 12 April 1960: I.C.J. Reports 1960, p. 6, see p. 44.
18 United Nations, Department of Economic and Social Affairs, World abortion policies, United Nations 2013.
19 See §§ 4, 7 of the resolution 1607 (2008), Access to safe and legal abortion in Europe.
20 The words “in general” could be interpreted very differently, but considering the catholic influence in Latin America the purpose may be to allow medical treatment that result in the unintended death of the foetus which is allowed by the Catholic Church, see Catholic Answers, What’s the difference between direct and indirect abortion?, Unknown publication date (27 December 2016), http://www.catholic.com/quickquestions/whats-the-difference-between-direct-and-indirect-abortion.
Lucas Eriksson, LL.M. Master of Laws at the University of Uppsala