08 May Is the an International Human Right to Have an Abortion? Amnesty International Seems to Think So.
08.05.09
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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 is certainly a broader and more complex thing than saying that abortion is an international human right as a matter of law. After all, Amnesty has been campaigning for the abolishment of the death penalty for many years, but it never suggested it is prohibited as a matter of customary international law. Like all NGOs, it uses international human rights law as an argument for some of its policies, and at the same time seeks to change it by proposing new policies. Confusing the two is not helpful…
[*]
Declaration of interest: I have been a member of the organization for many years; I am obviously writing in a personal capacity.
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 the Inter-American Court of Human Rights, as well as the Constitutional Court of Colombia.
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 the fine details of a policy on sexual and reproductive rights. This was a long and difficult debate at the end of which a decision was taken. AI lost members as a result of this – exactly as it happened with any other change in its policy since its inception in 1961. But it survived as an organization and is still among the most respected human rights NGOs around. It’s called democracy. We all kind of like it.
Second, the adoption of this policy by Amnesty International has not made it more or less of a ‘politicized human rights organization’ (as Mr Piero Tozzi describes it in the piece you referred us to) than it was before. It is political to ask for the death penalty to be abolished (as AI does). It is political to ask states to ratify certain human rights treaties (as AI does). It was political to contribute to the debate which then led to the Torture Convention (as Amnesty and dozens of other hr NGOs did). It was political to campaign for the establishment of an International Criminal Court (ditto). Basically, any campaigning activity is political. Human rights are quintessentially political. But Amnesty is independent from political parties: it answers to its members in its own democratic process. And more crucially, AI is independent in its activity of research on human rights abuses in the world, which is professionally conducted by a team of researchers working in many countries in the world.
As to some of these political campaigns on human rights, AI will and does work with the Catholic world. As to others, there are different positions. Despite the anathemas of the Vatican in 2007, I seem to understand that a lot of cooperation on specific issues still goes on around the world (I think of refugee rights, for instance). That is, let’s agree that AI has a right to disagree with the Catholic church in this and other issues, and that this has nothing to do with tainting or impairing the cause of human rights worldwide. (Last time I checked, the church was not the depositary of the definition of what human rights are; nor was Amnesty International).
As to the intervention in the Dominican Republic, I refer you to my friend Marko’s post. What AI is arguing as a matter of law is that “international human rights law and the [Dominican] Constitution as it is currently in force already protect prenatal life” but that his obligation has to be given effect “in a manner compatible with the rights of women, including their rights to life and health”. This is not arguing that there is an international human right to abortion. This is arguing that all human rights are inter-dependent and that it is necessary to take the rights of all subjects involved into consideration when speaking of human rights. Something constitutional courts and international human rights courts do every day.
Finally, I’d like to say that nothing I wrote should be read as implying what my personal views on abortion are, which I think are irrelevant to this debate.
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 treaties. Schlitt, like her HRW and CRR counterparts, admitted that the treaties are silent on abortion, but like them she agreed that if skillfully argued in courts, a critical mass of UN officials and judges would, and perhaps already has, create(d) recognition of a new right to abortion.
The need to continue to pacify AI members who oppose AI’s pro-abortion stance was also clear in Schlitt’s remarks. She argued that the US Catholic Bishop’s statement regarding AI’s change of policy was sympathetic to the policy change. When I called to confirm this with the bishops’ office, they told me her remarks were out of context and out of line. I confronted Ms. Schlitt in person, who immediately informed Ms. Gilmore, about what the bishop’s office said and suggested that AI must desist the deception. No doubt AI staff continues to try to have it both ways, however. Intellectual honesty requires we judge AI’s policies on what it does and not just what it says.
Susan Yoshihara, PhD
Director, International Organizations Research Group
VP/Research, C-FAM
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 after its 2007 policy switch? Did what was commonly understood to be the basis of obligations in international law change so radically in two years?
4) As I think Prof. Ku would agree, there are generally two sources of international obligations– treaty law, and customary international law. Principally, a nation is bound by international law to the extent that either the terms of treaties it freely entered into and ratified so bind it, or a nation has accepted certain norms that have evolved into “customary” ones. (See generally, Restatement (Third) of the Foreign Relations Law of the United States § 102(1)(a)).
5) Regarding treaties, there is simply no mention of abortion made in any of the global UN treaties. (There is mention in one regional African treaty, the Maputo protocol, but none in any global treaties that some point to as containing a “right to abortion,” like the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, etc., that are germane to the points made here.)
6) Where a treaty is silent upon a subject, countries are free to legislate as they wish on a host of contentious social issues — a principle recognized with regard to abortion in paragraph 8.25 of the Programme of Action of the International Conference on Population and Development (Cairo 1994), which states that “Any measures or changes related to abortion within the health system [of any country] can only be determined at the national or local level according to the national legislative process.” (Abortion proponents often misinterpret this document to claim a right to abortion under international human rights law.)
7) At the time such treaties were negotiated, many nations had legislation outlawing abortion and they intended to leave those laws unaffected. Laws in many countries continued to protect the unborn or criminalize abortion long after the treaties at issue were ratified, and until recently, no one dared suggest that countries had somehow agreed (unbeknownst to their negotiators when the treaties were crafted and unbeknownst to the policy makers who ratified the documents) to alter core domestic legislation. Thus there is no “right to abortion” under international human rights treaty law.
8) With respect to customary international law, while its parameters are a little more imprecise than those clearly defined by treaty law, it is not an open-ended concept whose substantive content can be supplied by radical activists and NGOs.
9) As readers of this blog no doubt know, customary international law is defined as “a general and consistent practice of states followed by them from a sense of legal obligation,” per the Restatement.
10) What constitutes an “obligation” imposed by customary international law should be accepted willy-nilly – certain acts clearly violate customary international law norms, like violation of “safe conducts,” infringements of the rights of ambassadors, and piracy on the high seas. (See the Supreme Court’s discussion in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).) CIL does not, however, include a right to abortion, since there simply is no “general and consistent practice of states followed by them from a sense of legal obligation” with regard to the practice.
11) Abortion proponents like the Center for Reproductive Rights like to say that there is a trend toward abortion liberalization among the nations of the world globally, and that therefore a new “custom” is emerging. First of all, that is not what customary international law is, and a show-of-hands of nations’ laws on abortion is rather a survey of the domestic laws of nations, not a snapshot of “evolving” customary norms. But even if it were related to CIL, there are plenty of nations around the world that do not see abortion as a “right,” but rather a criminal matter, and hence no “custom” exists.
12) Indeed, according to CRR, as of last year 69 countries around the world either prohibit abortion outright or allow it only to save a mother’s life, and another 34 countries only allow it to preserve the physical health of the mother. Other nations have varying degrees of limitation on the practice, with only 56 of the world’s 196 nations falling into the category that CRR deems to allow abortion “without restriction as to reason.”
13) Moreover, there are also countertrends that are evident – witness the constitutional and penal law reforms under consideration in the Dominican Republic that would enhance protections for unborn human life, which was what prompted this whole lively debate in the first place.
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For a further elaboration on the above themes, you can look at the informal amicus brief that the International Organizations Law Group, the Catholic Family and Human Rights Institute’s public interest legal arm, circulated in the Mexico City case available on the c-fam website, as is an article I did recapping the final decision in the Mexico City case.
Pax,
Piero A. Tozzi
Director, International Organizations Law Group
EVP & General Counsel, Catholic Family & Human Rights Institute (C-FAM)
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 that the penal law of the state concerned prohibits abortion under all and any circumstances. That penal law is of course a state action that triggers the state’s obligations under applicable human rights law, since it is in essence commanding the woman to suffer a 90% risk of death, through no fault of her own, on pain of criminal punishment. Are you seriously telling me that the woman does not have an arguable Article 6 ICCPR claim? Seriously? Just because Article 6 does not mention the word ‘abortion’?
I again refer you to the decision of the Supreme Court of a very, very Catholic Ireland, interpreting its own Constitution which expressly protected the right to life from conception – a decision which, I might add, survived several attempts to overturn it by constitutional amendments via popular referenda.
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 highest attainable standard of health, protections against torture, and so on.
Re-interpreting these existing rights to include a right to abortion, or any other new right, undermines the entire body of international law. UN human rights treaties were painstakingly negotiated by nations. When NGOs, UN bodies, judges or other activists re-interpret these same rights with new meanings, whatever the new meanings, they erode the consent upon which the treaties, and international law, are based. Nations do not know from year to year what their obligations are under the treaties.
Far too few countries respect the genuine rights they agreed to uphold when they ratified these treaties. Distorting them further only undermines, and does not advance, the project of human rights.
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 of the treaty language.
Amnesty International’s reading of “obligations” under the ACHR is thus inconsistent with the actual text of the ACHR, as well as traditional canons of treaty construction, as articulated in the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
Thus rather than an application of “general and abstract” terms of a treaty to concrete situations, as Mr. Milanovic suggests, there seems to be a deliberate disregard of the actual text of the treaty by Amnesty and its supporters to foist a favored policy outcome on the sovereign people of sovereign nations.
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 through with her pregnancy to sacrifice her own, full developed life, for what is at best the potential life of the unborn child? Can a society truly expect, say, a 14-year old girl who was raped and traumatized by her father, whose pregnancy was imposed on her against her will, to bear the child to term? I again (and again, and again) refer you to the judgment of the Irish Supreme Court, based on a provision of the Irish Constitution very similar to the ACHR.
It is quite frankly insulting at a very basic level that rather than seen as offering a reasonable interpretation of a given treaty in good faith, those who disagree with your (in all honesty incredibly extreme) position are accused of deliberately disregarding the text of the treaty and subverting the sovereignty of nations. I am not sure that you realize just how counter-productive this truly fundamentalist stance of yours is to the advancement of your pro-life agenda (and this goes equally, btw, for the partisans on the other, pro-choice side, who refuse to acknowledge that abortion can ever be anything but the choice of the woman concerned). By arguing in such unqualified terms that the human rights of a woman denied an abortion by the state are NEVER implicated, even if her pregnancy resulted from rape or incest, and even if she is certain to die if she bears the child to term, you will have alienated far, far more people than you will have persuaded.
Frankly, if I was a Catholic and a donor to your organization, I would be cancelling all of my cheques the instant after reading through this discussion. Kind regards,
Marko Milanovic
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 the efforts of C-Fam, because Mr. Milanovic C-Fam would protect you if you were a zygote. If Mr. Milanovic was an embryo.. C-Fam would stand up for you and would want you to be born. Be honest with yourselves…If abortion is to “protect” rape victims….then why is the abortion rate so high? why does abortion take place so often. Could it possibly be because of the obscene amount of socialized sex encounters. Where is the discussion on the after-effects of abortions? The crying, the mental anguish the regret… why is this not a topic? People let me tell you … If man is left in charge of his own destiny … we have our current world crises. I commend Mr. Tozzi for his efforts. For arguing for children that can not speak. It should hurt one’s heart if you realize you couldn’t help an child come to life. But, then again there’s Mr. Milanovic… what truly is the science behind being soooo staunchly in support if going inside a women and removing something attached to her that is also a little person itself? Do pro-abortion love their kids??? If so then take a second to imagine if the child was aborted how would that feel? What in life is better than your own child? I really like to know.
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 are words aimed at creating a straw man and then distroying it, which is, well, a rethorical device, not intellectual debate. And rethorical devices we saw along all of this discussion, with a few exceptions.
Mr Milanovic tried to offer a legal analysis. It is one with which I fully agree and the only one in this page that I find is compatible with how I was taught international law (and law generally) works.
But then again I may be wrong. Perhaps there are some subtleties of the right to life I have missed. Perhaps, C-FAM thinks it should be recognized as so absolute a right as to not being ever comparable with the other rights to life of other people. For example, criminal law provisions on self defence and necessity should never apply under any circumstances to anyone at all. So that if someone were to be threatened at gunpoint, he or she could not shoot back. This is a moral (not a legal) question on which I respect a multitude of positions, but the law seems to me to be, rightly or wrongly, somewhere else at the moment.
So, to recap. International human rights law recognizes the right to life. Mr Milanovic is – correctly – arguing that this right to life, like every other right, even if it applied before birth, it would not exist autonomously like a Leibnizian monad, but would still be put into relation with other rights, including those of the mother. So that in the situation in which someone needs an abortion for medical reasons, or to stay alive, this would not necessarily contradict the right to life of the baby-to-be. I think most lawyers would agree, despite the good efforts of C-Fam, that this is a different legal argument than saying that ‘there is a right to abortion’.
One unrelated question, in fine: is C-Fam against the death penalty? Are Amnesty International’s campaigns to abolish the death penalty also against the sovereignty of the United States of America?
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 the UN and elsewhere seek to expand a right to abortion in the developing world under (fabricated) claims that liberalized abortion regimes will lead to a reduction in maternal mortality. We know, however, that the surest way to reduce maternal mortality in the developing world is through common-sense measures like providing clean water, antibiotics, skilled birth attendants and emergency obstetric services. In addition to taking the life of an unborn child, surgical and chemical abortions under unsanitary conditions in the developing world can lead to serious complications, endangering the life and health of the mother. Beyond this, there is tremendous psychological harm to women who undergo abortions – a fact that proponents ignore or downplay. Is it perhaps an unwillingness to provide the resources necessary to ensure healthy outcomes for both mother and child, to truly tackle the problem of maternal mortality, which motivates some to propose abortion as a “solution” for women in the developing world?
To sum up, we at C-FAM care about both mothers and children, and see our position as affirming the dignity of all, including both mother and child. Those interested in the issue might also take a look at our latest C-FAM briefing paper, “Removing the Roadblocks from Achieving MDG 5: How Faulty Definitions of ‘Abortion,’ Safe Abortion,’ and ‘Unsafe Abortion’ in Reproductive Health Indicators for Global Monitoring Lead to Miscalculating the Causes of Maternal Mortality,” by Donna Harrison, MD, an ob-gyn. As with all our material, it is available for free on our website.
Peace to all.
Piero
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 rights, and life more generally.