UN Committee Says, Right-to-Life Means Right-to-Abortion

Yuval Shany, Jerusalem law professor

by Stefano Gennarini: The “right-to-life” clause in an important UN human rights treaty must now include a right to abortion. So says a committee of experts charged with monitoring compliance with the International Covenant on Civil and Political Rights, which most states have ratified.

The committee says governments must decriminalize abortion in all circumstances and “remove existing barriers that deny effective access by women and girls to safe and legal abortion including barriers caused as a result of the exercise of conscientious objection by individual medical providers,” according to the committee which monitors the implementation of the UN treaty on civil and political rights, ratified by the United States in 1991.

“History will judge to what extent we have succeeded in rendering a normative statement for generations to come,” said Jerusalem-based law professor Yuval Shany as the committee adopted the legal commentary last week in Geneva.

Shany, who steered the drafting of the commentary described the general comment, as the document is known, as possessing a “deep humanitarian sensibility.”

In addition to decriminalizing abortion, the committee tries to impose an obligation on states to “provide safe, legal and effective access to abortion” any time a pregnancy might lead to “substantial pain or suffering.” The committee also promotes the notion that “termination of life” is a way to allow persons to “die with dignity” and an abolitionist approach to the death penalty.

All of the experts on the committee who took the floor praised Shany, describing the general comment as a watershed moment. Of the eighteen members of the committee, only one sounded a note of discord, and he was swiftly and harshly reprimanded by other members.

“This language will imply legalization of abortion without restriction which in itself will deny the right to life of the unborn baby,” said Ambassador Ahmed Amin Fathalla somberly, the Chair of the committee.

He added, permitting abortion “with no criteria or restrictions or conditions” under the pretext of free choice and privacy would result in giving higher status to the right to personal autonomy than the right to life and that the committee’s approach “ignores all medical evidence” of when the life of a child might begin.

Fathalla’s intervention was made after he thought all other members of the committee who wanted to speak had an opportunity to do so. But as soon as Fathalla mentioned abortion other members angrily raised points of order to interrupt him.

“I don’t feel this is the time or place to give our subjective views and to criticize,” complained Tunisian professor Yadh Ben Achour.

“Perhaps this is not the right time,” said French legal scholar Olivier De Frouville.

Harshest of all, Sarah Cleveland, a U.S. law professor elevated to the committee by U.S. President Barak Obama, accused Fathalla and said he had “egregiously abused the spirit of this conversation and the position of chair.”

“I have the right to make a statement as a member of the committee,” Fathalla retorted, explaining that he expected his statement to be on the record of the general comment alongside all other opinions.

The general comment is the culmination of a four-year process. Over one hundred states and non-governmental organizations urged the committee not to interpret the UN civil and political rights treaty as requiring any changes to abortion laws, among these, the United States, Japan, Egypt, and Russia. It is not binding, though committee members like to describe their opinions as “authoritative.”

According to international experts who undersigned the San Jose Articles, there is no international right to abortion under any UN treaty, and when treaty bodies promote abortion as a right they do so illegally, and their actions cannot give rise to any new obligations.

One of the co-drafters and signers of the San Jose Articles, Director General of the European Centre for Law and Justice (ECLJ) Gregor Puppinck told the Friday Fax, “The Committee has clearly exceeded its mandate and violated the rules governing the fair interpretation of treaties in affirming that States parties should legalize abortion, and may permit assisted suicide. To infer rights to euthanasia and abortion from the right to life is contradictory and contradicts the intent of the Convention.”
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Stefano Gennarini, JD, is the Vice President for the Center of Legal Studies at the Center for Family and Human Rights (C-Fam).

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