Human Rights Watch Misstates International Law to Push Legalization of Abortion in Ireland

By Terrence McKeegan, J.D. | January 29, 2010

It’s a sad commentary on our times that one of the largest and best-known “human rights” organizations in the world does not have a proper understanding of the most basic concepts of international law.

Yesterday, Human Rights Watch released a report titled “A State of Isolation: Access to Abortion for Women in Ireland” that claims that Ireland’s laws restricting abortion are a violation of international law and the human rights of women.

Abortion has been illegal in Ireland ever since the Offences against the Person Act of 1861.  In the early 1980s, fearing that an activist Irish Supreme Court might try to overturn government laws in this area, the Eighth Amendment to the Irish Constitution was passed and ratified by popular referendum in 1983.  It states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

HRW makes its claim for a right to abortion in international law in the report as follows:

Authoritative interpretations of international law recognize that obtaining a safe and legal abortion is crucial to women’s effective enjoyment and exercise of their human rights. Since the mid-1990s, the UN treaty bodies that monitor the implementation of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the Convention of the Rights of the Child have produced a significant body of jurisprudence regarding abortion in over 122 concluding observations concerning at least ninety-three countries.

Contrary to the claims of Human Rights Watch, there is no international right to abortion as no international treaty even mentions abortion.  HRW would like the reader to think that compliance committees that oversee international treaties can make “authoritative interpretations” of international law.  But this is patently false, as this excerpt from a legal brief I’ve written on the issue clearly shows.

The reality is that it is ultimately for the States Parties collectively to determine the interpretation of what the rights in a treaty mean, and how they are to be weighed when there is a conflict between them. ( Cf. Christopher C. Joyner, International Law in the 21st Century, Rowman & Littlefield, 2005, pg. 114: “In interpreting a treaty text, the task becomes to ascertain what the text means to the parties collectively…”)

This rule was confirmed by several experts during the first session of the Committee on the Rights of the Child.  According to Youri Kolosov, a professor of international law and a member of the initial Committee, (who has also served on other treaty monitoring committees), “the rule [is] that only States parties [are] entitled to give a formal interpretation of the Convention.” During this same session, another member of the Committee noted that “the Committee was not empowered to interpret the provisions of the Convention.” In this context, both members of the committee meant that while a treaty compliance committee has been given some right to interpret the text of a treaty in order to conduct a dialogue with States, only States Parties have the authority to make an official interpretation that is binding on the States Parties.

To take one example of how States Parties collectively interpret an international treaty, we can look to the Convention on the Rights of the Child.  In his exhaustive study performed for an official submission to the U.N. Study on Violence Against Children in 2005, Bruce Abramson found that of the 176 States Parties that had submitted implementation reports on the CRC, 128 of these State Parties have affirmed that the Convention protects children during the pre-natal period of their lives.  Further, no State Party has expressly denied that the Convention applies prior to birth.

So, contrary to what the “experts” on the various compliance committees wish to read into international treaties, the reality is that States Parties have consistently rejected any interpretation that international law contains a right to abortion, but have instead overwhelmingly agreed that the right to life provisions in international treaties includes the unborn, as most States Parties protect the pre-natal period of children in some way.

Finally, it’s ironic that HRW would try to pick a fight with Ireland on this issue, given the fact that it, like other pro-abortion NGOs and some UN agencies such as UNFPA, have insisted that restrictive abortion laws lead to higher maternal mortality rates.  However, according to UNPFA’s own figures, Ireland has the lowest maternal mortality rate in the world.

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