08 May Is the an International Human Right to Have an Abortion? Amnesty International Seems to Think So.
08.05.09
|
21 Comments
This is obviously not an objective source, but it is interesting to see the trends in international human rights law advocacy overseas. Abortion used to be a no-no subject for NGOs like Amnesty, and still is for some groups like Human Rights First. But, if this report is correct, Amnesty International has gotten off the fence on this question. I don’t mean to criticize them for adopting a pro-abortion rights view, but as a legal and political matter in the United States, this is going to be used by domestic anti-abortion groups as another reason to oppose U.S. participation in international human rights treaties.
This really is old news, Prof. Ku. Whether one agrees or not with the ‘new’ policy, one should at least check on the facts before quoting only the least objective source available on the matter… A quick search for the word ‘abortion’ in the organization’s main website (www.amnesty.org) would have revealed that the policy of the organization changed in the Summer of 2007, and that very interesting debates occurred then — including the Vatican’s threat to ‘withdraw’ funds from the organization, and AI’s reply that they never accepted money neither from the Vatican nor from other states. Amnesty International never stated that there is an international human right to have an abortion, and the suggestion that this is the case is plainly intellectually dishonest. Amnesty has a policy on sexual and reproductive rights which includes access to abortion under certain circumstances. From the policy document summary: “Amnesty International’s actual policy, however, standing alongside its long-standing opposition to forced abortion, is to support the decriminalisation of abortion, to ensure women have access to health care when complications arise from abortion and to defend women’s access to abortion, within reasonable gestational limits, when their health or human rights are in danger.” This… Read more »
I am Austin Ruse, president of the Catholic Family and Human Rights Institute, publisher of the Friday Fax, where the report Professor Ku cited first appeared. You can read the story, along with our other work at http://www.c-fam.org. We stand by our story.
AI has intervened in the Dominican Republic’s constitutional battle and has made the case not that there is an obligation under customary international law, rather that DR has a treaty obligation to keep abortion legal. This is an accurate representation of AI’s intervention in DR and is based on the statements and reinterpretations made by the treaty monitoring bodies of various UN treaties (mainly the Convention on the Elimination of All Forms of Discrimination Against Women and on at least one of the 1966 implementing treaties of the Universal Declaration of Human Rights).
I would be interested to hear if Mr. Messineo rejects these interpretations of these hard-law treaties used by AI in the DR situation.
Also, Professor Ku, we at C-FAM not such bad guys. You might find that we have a great deal in common, perhaps not on the social issues but likely on questions of national sovereignty.
Best,
Austin Ruse
President
C-FAM
To add to what Francesco said, you can read the Amnesty statement at http://www.amnesty.org/en/library/asset/AMR27/003/2009/en/6ae4feb6-9b32-41f0-8803-50a7c8818f13/amr270032009en.html . With all due respect, Mr. Ruse, your own characterization of Amnesty’s position is somewhat misleading. Amnesty is not arguing that there is a right to abortion on demand. What it is arguing is that a COMPLETE ban on abortion can violate the human rights of the mother, if the pregnancy was caused by rape or incest, or is endangering the health or life of the mother. No matter how anti-abortion or pro-life you may be, surely you must realize that there is a qualitative difference between situations where pregnancy was imposed on a woman against her will, through the commission of an incredibly traumatic crime, or situations where the woman must risk her own life or health to carry a child to term, from situations where pregnancy is just the result of simple carelessness. That difference is most certainly legally relevant. There is no human rights body or court in the world that would, in my view, not require states to decriminalize abortion in such circumstances. You will have noted that in their statement, Amnesty cites opinions of the Inter-American Commission of Human Rights and… Read more »
Dear Mr Ruse, thank you very much for taking the time to address my comments. Just some added points of clarification. The main point I was making was that this position of Amnesty International on sexual and reproductive rights was not a ‘new’ one, but one stemming from an internal policy decision reached in 2007 after a long and heated internal debate inside the organization, and that therefore Prof. Ku was wrong in talking about this as if there had just been a change in AI’s policy. Further, I said that if one wanted to talk about this change in policy, one could not link only to one side of this argument, but an objective analysis of what AI actually says was needed. Saying that AI thinks there is an international human right to abortion is just plain untrue. With due respect, most people who criticized AI for its change in policy back in 2007 completely failed to address the internal democratic process of the organization. AI as a movement of almost two million members worldwide followed its own rules involving international meetings and national AGMs where members from all the dozens of countries making up the organization decided on… Read more »
No one here is denying the crux of our report, that AI takes the position that the Dominican Republic and other nations that have signed certain international treaties are now treaty bound to keep abortion or make abortion legal. First, no international treaty even mentions abortion. Second, only one international treaty even mentions reproductive health (the treaty on disabilities and then only as a category of non-discrimination). Third, no international treaty that mentions reproductive health defines it as including abortion. This means that AI comes to its position on abortion as a human right through the never-intended-to-be-binding comments of the monitoring bodies attached to the CEDAW and other treaties. These bodies have taken it upon themselves in some cases to reinterpret hard-law treaties that sovereign states took years to negotiate and that the body of states parties has never agreed to. Perhaps you think this is a good thing for integrity of human rights and international law. We do not.
You do not need to be against abortion to be opposed to these types of maneuvers.
Mr. Messineo and Mr. Milanovic seem to have accepted the semantics of Amnesty’s top brass – that AI’s position is different from outright promotion of abortion. AI’s own staff has been candid about the need for such doublespeak, however. At the Women Deliver conference, a 2007 UN-sponsored pro-choice conference in London, Kate Gilmore, AI’s deputy executive secretary general, and Stephanie Schlitt, reproductive rights coordinator AI’s international secretariat, were applauded by Human Rights Watch (HRW), the Center for Reproductive Rights (CRR), International Planned Parenthood, Catholics for Choice, Family Care International and other abortion advocates for joining the campaign to promote abortion rights. Neither of them protested such recognition. Stephanie Schlitt explained at the Women Deliver conference that there was a distinction between the wording of AI’s policy statement and those of the other organizations in order to satisfy those AI members who opposed an outright pro-choice stance during the internal negotiations on the matter. But she then went on to explain that this would not in any way limit AI’s partnering with the organizations. For example, she announced that AI would immediately partner with CRR to get abortion recognized as a human right through litigation, using existing human rights… Read more »
With regard to Mr. Francesco Messineo’s assertion that “Amnesty International never stated that there is an international human right to have an abortion,” and the suggestion that I have been “intellectually dishonest” (!!), I offer the following points for your consideration. 1) As recently as 2005, Amnesty took the position in its published works that “There is no generally accepted right to abortion in international human rights law.” See, e.g., Amnesty International, “Women, Violence and Health,” Feb. 18, 2005. 2) Following its policy change in 2007, however, Amnesty adopted a different position. For example, in the informal amicus brief it circulated in the Mexican Supreme court case that upheld Mexico City’s liberalized abortion law, Amnesty took the position that “[R]epealing the legal reforms of the…Federal District Penal Code [liberalizing access to abortion] will, in fact, result in violations of Mexico’s international human rights obligations.” (“Postura de Amnistia Internacional sobre la Accion de Inconstitucionalidad 146/2007, y su Acumulada 147/2007, ante la Suprema Corte de Justicia de la Nacion,” ¶ 4.) 3) If there is no right to abortion under international law – the Amnesty position circa 2005 – what then is the source of such obligations which Amnesty was touting… Read more »
I would like to make a small contribution by recalling the context in which AI recently stated its position concerning the constitutional debate in the Dominican Republic. It has been inferred indirectly by the commentators herein, but it has also been ignored in the posts of Austen Ruse. The debate in Dominican Republic did not concern the legalisation of abortion (such as it was the case of Mexico City legal reform), it concerned therapeutic abortion, for cases where the life of the mother was under threat due to health reasons, or where the pregnancy was a result of rape. I do think for some it does make a difference when taking stances on this issue, and when legislating about the rights of the citizens, including mothers, any constitution must protect.
Again, it is certainly true that there is no such thing as a general right to abortion in international human rights law, a la Roe v. Wade. To the extent that AI argues that there is one, it is wrong to do so. But at least when it comes to the Dominican Republic report referred to in the quoted article, AI did NOT argue there was a general right to abortion, but that there was a right to therapeutic abortion in some very specific circumstances, such as rape, incest or threat to the life of the mother.
The latter right does not depend on the (non-)existence of the former. It can be derived, for instance, from the right to life of the mother herself. Indeed, it can exist even if a state is unambiguously dedicated to the protection of the right to life of the child from conception. See, e.g., the famous decision of the Supreme Court of Ireland in Attorney General v. X at http://www.bailii.org/ie/cases/IESC/1992/1.html.
What we reported was that AI claims there are treaty obligations related to abortion. There aren’t any for any reason; rape, incest, life or health of the mother or for any other reason. To arrive at AI position, one has to distort a proper understanding of human rights treaties such as CEDAW and ICCPR.
Yes, we know how the CEDAW monitoring committe got to that conclusion, by extrapolating a right to abortion from a right to health. That is understood and is an old trick. But it still stands that 1) no UN treaty mentions abortion and 2) only one UN treaty mentions reproductive health, and 3) no UN treaty defines reproductive health as including abortion. Surely, we can agree that if there is going to be an new international right to abortion, it should come in a more straightforward and dare i say honest way?
So, if I get you right, the only way that a specific result can be reached in the interpretation of a (human rights) treaty is if the treaty in express terms deals with that specific situation and mandates that specific result. You do realize that this is not exactly how treaty interpretation works, especially when treaties are couched in general and abstract terms? You do realize that the only reason that lawyers have jobs is because a legal system can never, ever function that way? You do realize that, say, the US Bill of Rights or the ECHR, both of which are quite brief instruments, have produced case law dealing with thousands upon thousands of applications of very, very general terms to concrete situations, most of which could not have been and were not foreseen by the drafters of the instruments? Just by way of example: a pregnant woman is told by her doctor that there is a 90% chance that she will die if she carries the child to term. Abortion is the only indicated treatment. She does not want to risk her own life for the life of her own unborn child, but is told by the doctor… Read more »
Regarding Ms. Ruiz Verduzco’s comments: again, the line between a right to abortion and a right to theraputic abortion is a distinction without a difference in terms of UN human rights law. The term “theraputic abortion” is defined in various medical sources. One standard souce defines it as, “An abortion that is brought about intentionally. Also called an artificial or induced abortion. As opposed to a spontaneous abortion (a miscarriage).” Another similarly defines it as a planned abortion, adding reasons for termination such as potential birth defects in the child, selective reduction in the case of multiple fetuses, or to save the life or preserve the health of the mother. While these reasons may justify abortion in the minds of many, the point here is that they are not covered anywhere in binding UN human rights law as AI asserts. Mr. Milanovic argues that a right to abortion “can be derived” from the existing human right to life. But UN human rights law does not include abortion in the right to life, even though this is one of the bases upon which abortion advocates claim an international right to abortion. Such advocates also “find” abortion rights in the existing human rights to non-discrimination, freedom of speech, freedom to travel, liberty, personal security, the… Read more »
To further elaborate on the postings by Mr. Milanovic and others, Amnesty’s position statement on the Dominican constitution relies principally on Article 4.1 of the American Convention on Human Rights, subsequent interpretations by the Inter-American Commission on Human Rights and a “comment” attributed to the President of the Inter-American Commission on Human Rights claiming inter alia that criminalization of abortion where pregnancy results from rape “would cause a violation of the obligation of the state to protect the life of the woman.” (In their Mexico brief, Amnesty similarly cited interpretations of various treaties by UN compliance committees as justifying abortion.) Article 4.1, however, states that “Every person has the right to have his life respected. This right [of every person] shall be protected by law and, in general, from the moment of conception.” From the syntax, it is clear that personhood begins at conception. The provision speaks of the “right” of “[e]very person” to have his life respected. The next sentence goes to amplify when that “right” – i.e., that “right” of every person – attaches: from the moment of conception. To read in a right to abortion, such as in cases of rape, disregards the actual text… Read more »
Dear Mr. Tozzi, With respect, this latest exchange just shows how useless and unproductive it is to argue with partisans and ideologues of all stripes, so please take this as my last contribution to this debate. You will not be persuaded even ever so slightly, no matter how powerful the opposing argument, no matter how eminent the authority that is cited against you (which you either ignore, as is the case with the Irish Supreme Court, or dismiss as ‘activist’, as with the Inter-American human rights bodies), nor will you desist from seeing things in black and white, while everybody else sees shades of gray. Yes, it is undoubtedly true that the ACHR protects human life from conception. But this is all that your simplistic, purely textual argument proves. It does not follow from the text of the treaty that the protection given to the yet unborn human life is absolute, and that it can never be balanced with other, equally important considerations. Does the mother not have a right to her own life, by the very provision that you have cited? Can a society, through its criminal law, truly ask of a mother certain to die if she goes… Read more »
Dear Mr. Milanovic,
You might consider sitting down and taking a breather.
Please note that my colleagues and i are not arguing about abortion and we don’t think that this is the forum to do that. What we are arguing is a proper understanding of treaty obligations. We fear that international bodies are subverting a proper understanding of international law by the frankly dishonest application of ideology to binding and in many instances non-binding documents. We would be happy to discuss abortion with you, but perhaps in another forum. We believe that even those who are pro-abortion rights, can and should be concerned at how ideologues are improperly using international instruments to advance their agenda.
Best,
Austin Ruse
It seems to me that there is a methodological disagreement at issue regarding interpretation: Should treaties be interpreted like contracts or criminal law, i.e. read to limit freedom of the states-parties only where the language is explicit? Or should treaties instead be read like civil codes (or, for many today, like constitutions), i.e. creatively developed to solve almost any dispute?
This, I think, underlies the above lack of comprehension between the two sides, their mutual understanding of conflicting opinions regarding abortion itself being in fact unusually felicitious.
I’ve read the responses of those who have contributed to this topic. It is in my opinion that Mr. Tozzi, and those involved in C-Fam were attempting to explain case law and international treaty obligations. I also notice attacks upon Mr. Ruse and Mr. Tozzi as hopeless idealogue not worthy of financial support. Frankly I am shocked by the likes of Mr. Milanovic. Rape is used as an excuse in hypothetical arguements to anchor the Pro-abortion efforts. It is sad that it is not realized the majority of abortion are not the results of rape. What is so wrong with life beginning at the point of conception being accepted as true. If Mr. Milanovic was never a zygote then he would not be here on Earth today. How can you argue against that? How can it be that we live in a world so eager to destroy a baby that can not even defend itself. All humans on earth are derived from conception. If all embryos were destroyed at birth there would be no humans on Earth. How can this be overlooked? What I do notice is that those who want to destroy zygotes and embyroes are relentless. I commend… Read more »
I have to say I was a bit shocked when I came back to this page and saw the escalation of this discussion, especially in the latest personal attacks on Mr Milanovic which are completely unacceptable. Undoubtedly he was at some point a zygote (and so all of us were), but I really don’t see how this is relevant here. Let’s not derail, please. This started out as a discussion on the position Amnesty International took with regards to sexual and repruductive rights. I claimed that it was a position of 2007, not a new one. And that it was intellectually dishonest to say that AI had argued that abortion was an international human right, as in the title of Prof. Ku’s contribution. So, Mr Tozzi, my beef was with the title of this post, not with you. And despite not being a top brass of Amnesty International – I still dare having my own autonomy of thought despite the many years of work for this organization – I stand by my claim that it is far too simplistic to reduce AI’s position on such a contentious question with the words ‘AI recognizes an international human rights to abortion’. These… Read more »
The thing about the death penalty is that there actually are hard-law treaties that mention it. There is not a single hard-law treaty that mentions abortion and only one treaty that even mentions reproductive health and then not as a right but as a category of non-discrimination for the disabled and even then is not defined as including abortion.
We do understand that some interpret the right to life as a right to abortion and that some interpret the right to health as the right to abortion and I also have no doubt that many are taught in law schools that this kind of creativity. We hold that this kind of creativity is dangerous for genuine human rights since it diminishes respect for the hard-fought decisions of states parties and therefore reduces respect for the rule of law.
By the way, much of this mischief comes from teh CEDAW committee. I will give you a thousand bucks for any member of that committee you can name without looking.
Though it may be rhetorically effective, it is a false dilemma to pit the right to life of the mother against that of her unborn child. As a real world matter – not some concocted hypothetical about a doctor telling a woman there is a 90% chance she will die if she does not have an abortion – such choices are extremely rare. They occur in the rare case of ectopic pregnancies, where a fertilized ovum lodges in the fallopian tube and does not pass to the uterus and attach to the uterine wall. If the child were to continue to develop in the tube, the tube would burst, and death to both the mother and child would result. Under such circumstances, I don’t think anyone would fault a mother or her doctor from a proportionate course of treatment – removal of the blocked portion of the tube – that has as an unintended and indirect result the death of the child (what ethicists refer to as the “double effect”). Beyond this rare situation, where do we see the life of the mother truly be at risk if she were to bear her child to term? Abortion proponents at… Read more »
Mr Ruse, the kind of ‘creativity’ you refer to is called ‘treaty interpretation’. It is regulated by the Vienna Convention on the Law of Treaties (1969) [see the interesting discussions here on OJ a few weeks ago on entire books devoted to the subject], and it is, indeed, what is taught in law schools around the globe (and what I would teach my students). The text of ‘hard law treaties’ [a definition which would make most international lawyers working in dualist countries happy, btw] is only ONE very important element to take into consideration when understanding the full range of obligations that ‘sovereign nations’ have agreed to be bound by when they became parties to a treaty. It is the starting point of legal analysis, not the end of the story. But let’s agree to disagree on this one. This will be my last comment on this topic. Peace on Earth to men (and women)(*) of good will. (*) I can’t help but noticing it is always men who discuss so solemnly and self-assuredly about abortion. Women, both those who are pro-choice and those who are pro-life, usually have a higher and wiser idea of the sacrality of conception, sexual… Read more »