Abortion: how can states protect themselves from the activism of international organisations?

International judicial and quasi-judicial bodies have undertaken to affirm the existence of a broad right of access to abortion, even though this practice was a criminal offence in most countries at the time the relevant treaties were written. How can a state eager to protect human life limit the risk of being ordered to legalise abortion extensively? This text aims to answer that question by suggesting that governments formulate an "interpretative declaration”.

This proposal is based on identifying the weak point in the arguments which claim that there is a right to abortion, namely the confusion between the holder and the scope of the right to life. International bodies allow abortion, and thereby reduce the scope of the right to life, by excluding the unborn child from the category of those who hold a right to life. (I) Against this reasoning, States could affirm in an interpretative declaration that they interpret the notion of "person" as applying to the unborn child. Such a statement is easy to formulate (II) and would produce several effects, the main one being to make it clear to international jurisdictions and bodies that they are not authorised to interpret international instruments for the protection of human rights in such a way as to limit or undermine rights already guaranteed in a country’s domestic legal order. In addition, the recognition of the unborn child as a person or human being would hinder the assertion by these authorities of a subjective right to abort the being in question (III).

I. The asserted right to abortion’s weakness: the confusion between the holder and the scope of the right to life.

Over the past twenty years, United Nations committees and international jurisdictions have gradually developed an obligation for States to legalise abortion, at least in certain circumstances. To do this, these authorities have excluded the prenatal period of human life from the scope of the right to life, while correlatively extending the scope of rights relating to respect for private life, to include abortion. For example, the European Court of Human Rights (ECHR) asserts that “Article 2 of the Convention [on the right to life] is silent as to the temporal limitations of the right to life”[1] Similarly, the Inter-American Court of Human Rights states that “the protection of the right to life is not absolute (…), but rather gradual and incremental according to its development”.[2] Finally, the Human Rights Committee deleted all references to the unborn child from the text of its General Comments No. 36 on the right to life, while including references to abortion.[3] This is also the case with other United Nations committees[4] which recommend the liberalisation of abortion, as well as the World Health Organisation, a body which has published guidelines on abortion[5] which recommend its complete and unconditional liberalisation.

International bodies thus affirm the existence of an obligation that weighs more and more heavily on States to legalise abortion ever more broadly, making it all the more difficult for States to resist this international pressure.

Admittedly, international jurisdictions and bodies can legitimately focus their interpretation on the scope of rights by modifying the scope of their application. But the situation is very specific when it comes to the right to life, because the interpretation aimed at allowing abortion is not so much about the scope of the right as about the definition of its holder. It is by denying, at least implicitly, that the unborn child is a holder of the right to life that abortion is made possible while formally respecting this right. This approach results from the inability of international bodies to create an exception to the right to life, because there is already an exhaustive list of such exceptions in international texts. Furthermore, the creation of an exception to the right to life for abortion was rejected when the Universal Declaration was drafted.[6] Put simply, international bodies act upstream of the right to life, directly on the definition of its holder, because they cannot create any exception, including for abortion.

This approach is based on the premise that there is a doubt as to the applicability of the right to life before birth. The ECHR thus declares that in the absence of “European consensus” on “the scientific and legal definition of the beginnings of human life”, it is unable “to answer the question of whether the unborn child is a ‘person’” within the meaning of the European Convention.[7] This premise gives rise to doctrinal controversies from which it seems impossible to escape because opinions are so polarised. In fact, efforts to demonstrate and convince that the right to respect for life, as guaranteed in international law, benefits the unborn child have met with little success.[8]

However, another approach can be considered by States wishing to protect the lives of unborn children. Rather than seeking to prove that the right to life applies from before birth, States have the option of asserting it by responding to the doubt expressed by the international authorities at the basis of their reasoning. This assertion concerns a question of fact, rather than of law: that is why the ECHR recognises that this is a matter for States to decide when it declares that they can “legitimately choose to consider the unborn child as a person and protect his life”[9]. Put simply, it would be enough to take the ECHR at its word. After all, the laws of several countries - particularly European countries -  recognise the unborn child as a person or subject of law.

This affirmation could be formulated through an interpretative declaration.

II. The interpretative declaration: terms and admissibility

Rather than ceding to international bodies the power to redefine the holder of the right to life, governments have the ability to go ahead with a definition pre-emptively, by formulating an “interpretative declaration”. Such a declaration would consist of a State Party to a treaty formally informing the depositary of that treaty that it interprets the notion of “person” or “human being” holding the right to life under that treaty, as applying to the human being from before birth, or from a specifically determined moment, for example from conception.

Terms

The implementation of such an interpretative declaration is straightforward and has been set out by the International Law Commission in its Guide to Practice on Reservations to Treaties (2011).[10] According to this guide, a unilateral statement “purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions”. It is formulated by a person “who is considered to represent a State”, “at any time”, preferably in writing, and they “should, as far as possible, be able to provide reasoning”. It can be formulated with respect to any treaty, including those which exclude the possibility of formulating reservations, “unless the interpretative declaration is prohibited by the treaty.”

States make many interpretative declarations relating to various treaties.[11] For example Tunisia, when signing the Convention on the Rights of the Child in 1990, which provides for “appropriate legal protection [of the ‘child’], both before and after birth”, declared that the provisions of this Convention, in particular article 6 guaranteeing the right to life, “shall not be interpreted as impeding the application of legislation (…) relating to the voluntary termination of pregnancy.” France and Luxembourg made almost identical declarations. Conversely, Argentina stated that "the word ‘child’ should be understood as any human being from the moment of conception until the age of 18. Likewise, Guatemala recalled that, according to its constitution, “The State guarantees and protects human life from the moment of conception, as well as the integrity and security of the person.” As for Ecuador, it reaffirms that it “particularly supports the ninth preambular paragraph which emphasises the need to protect the child before birth”.[12]

Admissibility

 An interpretative declaration is valid if it does not constitute a reservation, i.e. if it does not restrict the scope of application of the clause in question, in other words if it does not revise the treaty[13] (like reservations do).  A reservation for example nullifies the applicability of a clause or reduces its scope.  The Commission and later the European Court of Human Rights[14] have stated that reservations differ from declarations in that, one the one hand, a reservation constitutes a condition for the State’s consent and, on the other, that its goal is to “exclude or modify”[15] the juridical effect of certain clauses.  An interpretative declaration which aims to specify notions, such as person or human being who have the right to life, does not reduce the range of this right and therefore does not constitute a reservation.[16]

"An interpretative declaration composed in this way would not indirectly extend the scope of application of the right to respect for life, or modify it, contra legem. In other words, it would be consistent both with the letter and the spirit of the treaties. " The State is not withdrawing from any of its obligations concerning the right to life by formulating such a declaration.  Moreover, in virtue of the principle of subsidiarity in the international system of human rights protection, States are free to grant a higher level of human rights protection in their domestic legal systems than that which is guaranteed at the international level, which is subsidiary and minimal.  This is the situation in which States find themselves which recognise and protect human life before birth.

III.      The effect of an interpretative declaration

All interpretative declarations constitute an “element to be taken into account in interpreting the treaty in accordance with the general rule of interpretation of treaties”, according to the International Law Commission. 

Unlike a reservation, an interpretative declaration is not binding on other State parties to a treaty; but it must be respected and taken into account by the international jurisdictions and interpretative human rights bodies in a complaint against the State that issued the said declaration.  However, this interpretative declaration – in virtue of the specific nature of its content – acquires a supplemental binding force with respect to international bodies when it is considered in the light of the principle according to which international human rights law must not be interpreted in such a way as to limit or violate the rights guaranteed in the domestic legal order.  This principle of international law is laid out in Articles 5.2 of the International Covenant on Civil Political Rights and the International Covenant on Economic, Social and Cultural Rights[17], Article 41 of the International Convention on the Rights of the Child[18], Article 53 of the European Convention on Human Rights^[19], Article 27 of the  Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, as well as Article H of the Revised European Social Charter[20], among others.  Thus, European and international human rights law fixes a minimal common basis for the protection of rights and liberties which States are required to ensure, while also being able to go beyond them. [21]  The result is that jurisdictions and international bodies cannot impose an interpretation of the notion of “person” or “human being” on a State which has formulated such a declaration if that interpretation had the effect of reducing the protection of the right to life in the domestic legal order.

Concomitantly, an international human rights norm is obligatory in domestic jurisdictions only if there is no more favourable provision in domestic law. International human rights law has primacy over national law only if it offers a higher level of protection of rights and freedoms.

So the European Court of Human Rights could not invoke the absence of a guarantee of the right to conscientious objection against military service in the text of the European Convention to condemn states which do guarantee it.  In the same way, a judge in a country which does guarantee this right in its internal legal order cannot invoke the absence of an international guarantee to argue against domestic law.  The European Court of Human Rights cannot invoke doubts about the applicability of the right to life before birth to condemn countries which offer a higher level of protection.

This interpretative declaration would also produce other effects.  The most obvious would be to demonstrate explicitly that there is no consensus between states on the question of who has the right to life.  Another effect would be to prevent violations of the right to life before birth from being considered subjective rights, because no one can dispose of the right to existence of a person or a human being.  Indeed, abortion can be a subjective right to dispose of one’s body only if the unborn child is ignored.  It follows that such an interpretative declaration would be an obstacle, at least theoretically, to the claim that there is a right to abortion, in the sense of being able to dispose of the life of the child in utero.  Indeed, as soon as one recognises the unborn child as a subject which enjoys the right to the respect for life, an attack on its life is possible, besides the exceptions explicitly provided for in the treaties, only unintentionally[22], that is as a secondary effect of an act which aims at a proportionate good, namely the life of the mother.  This is what the Supreme Court of the United States ruled in Dobbs v. Jackson in 2022: abortion cannot be a right under provisions for the protection of private life because it “destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’” (paragraph 3).

Governments whose constitution or legislation protect human life before birth, or who accord the status of person or subject of law to the unborn child, can easily formulate such a declaration by stating that this is their understanding of the notion of “person” or “human being” and that this understanding has never been contested by the other State parties.

In Europe, such an initiative could in particular be of interest to Italy, Hungary and Poland. Moreover, under the Vienna Convention on the Law of Treaties, if several parties to a treaty file similar interpretative declarations, such declarations become evidence of “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, and become a primary source to interpret the treaty context (VCLT, art. 31(3)(b)), at least in regard to those nations.

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[1] ECHR, Vo v France, GC, n° 53924/00, 8 July 2004, § 75.

[2] Inter-American Court of Human Rights, Artavia Murillo et al v. Costa Rica. 28 November 2012. Series C No. 257, § 264.

[3] Christophe Foltzenlogel, Observation générale sur le droit à la vie : Des mois de gestation pour aboutir à l’avortement, Compte rendu annoté de la 2e lecture des paragraphes 8 et 9 de l’Observation générale n° 36 du Comité des droits de l’homme, European Centre for Law and Justice.

[4] See C-Fam, Evidence of Systemic and Unlawful Abortion Promotion by UN Secretariat, Agencies, and other Entities, September 2022.

[5] WHO,  Human Reproduction Programme (‎HRP)‎, Abortion care guideline, 2022.

[6] Travaux préparatoires, E/CN.4/AC.1/SR.35, p. 1535.

[7] ECHR, A, B et C v. Ireland [GC], n° 25579/05, 16 December 2010, § 237.

[8] See for example the numerous contributions submitted in this vein to the Human Rights Committee and ignored by it in the revision of the General Observations on the right to life.

[9] ECHR, A. B. C., v. Ireland, GC, n° 25579/05, 16 December. 2010, § 222, confirming Vo v. France, GC, n° 53924/00, 8 July 2004.

[10] https://legal.un.org/ilc/reports/2011/english/addendum.pdf

[11] See here the list concerning the European Convention on Human Rights https://www.coe.int/en/web/conventions/full-list?module=declarations-by-treaty&numSte=005&codeNature=0

[12] United Nations, Convention on the rights of the child: signatures, Ratifications, Reservations and Declarations.  https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.fr.pdf 

[13] International Court of Justice, Advisory Opinion of 18 July 1950, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, p. 229, https://www.icj-cij.org/public/files/case-related/8/008-19500718-ADV-01-00-EN.pdf or Judgement of 27 August 1952, Case concerning the rights of Nationals of the United States of America in Marocco, p. 196: https://www.icj-cij.org/public/files/case-related/11/011-19520827-JUD-01-00-EN.pdf

[14] ECHR, Belilos v. Suisse, n° 10328/83, 29 April 1988.

[15] European Committee on Human Rights, Temeltasch against Switzerland, n° 9116/80, 5 May 1982.

[16] In this respect, it is legitimate to doubt the validity of the ‘declarations’ made by France, Luxembourg and Tunisia in respect of the Convention on the Rights of the Child in that their goal is to restrict the definition of the right to life in order to permit abortion.  They are in fact more like reservations.

[17] International Covenant on Civil and Political Rights, Article 5.2, “There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”

[18] “Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: (a) The law of a State party; or (b) International law in force for that State.”

[19] European Convention on Human Rights, Article 53 : “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.”

[20] “The provisions of this charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected.”

[21] F. SUDRE, Droit européen et international des droits de l’homme, Paris, PUF, 2008, p. 202 et 203.

[22] Article 2 of the European Convention on Human Rights stipulates that “No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”