International Right to Abortion Comes One Step Closer
NEW YORK, June 1 (C-Fam) A guideline on customary international law adopted by the prestigious International Law Commission this month raises the stakes in every UN negotiation related to abortion.
The commission has announced that “all resolutions, decisions and other acts adopted by international organizations or at intergovernmental conferences… may be used as evidence of binding customary international law.” Additionally, it will not matter if the resolutions themselves are legally binding or not.
Pro-life advocates are duly concerned since abortion advocates have long argued that abortion can already be counted as customary international law and is therefore binding on all states. They have had to rely on these “soft-law” claims since abortion appears in no binding treaty or agreement. They have argued for 30 years that the term “sexual and reproductive health” repeated hundreds of times in UN documents has created such a customary right.
When President George Bush adopted Mexico City policy, forbidding U.S. money from supporting abortion overseas, the Center for Reproductive Rights sued in Federal Court making claims of customary international law related to abortion.
The International Law Commission adopted the guidelines this month over the objections of legal experts from the United States and Germany, who questioned the notion of using conduct of international organizations as evidence of customary international law, among other issues, in written comments on the draft rules earlier this year.
“We believe the ILC should not portray its work as a codification of existing customary international law,” said the legal expert of Germany to the United Nations in no uncertain terms.
She said the commission should limit itself to codifying existing international norms and not draft articles for direct use by lawyers and judges in courts all over the world. And she suggested the commission was mixing its mandate to codify existing law with that of aiding the progressive development of new international law.
“When the commission blurs the line between these two mandates it calls into question the very foundation of its legitimacy. It is the states and not the commission that create international law. Therefore, any change of international law must be agreed upon by states, by treaty,” she concluded.
Traditionally, a new rule of customary international law would only be discerned if two elements were proven. First, a practice or custom had to be universal before it could be considered normative. Second, the practice or custom was undertaken with the understanding it was required by an existing norm.
The guidelines lower the bar for identifying new rules. They follow a trend of the International Court of Justice and recent legal scholars to require only a “general” practice of states, not one that is universal. And they push the idea that new norms can emerge quickly, undermining the requirement that a customary norm has to be already existing in order to be identified.
And the guidelines expand what evidence can be adduced for proof. Not only are UN resolutions and the negotiations and adoption of UN resolutions considered evidence of customary international law, also the conduct of international, including UN experts and bureaucrats, can be considered a constitutive element of customary international law.
Even “pronouncements of treaty-monitoring bodies established by virtue of multilateral treaties” can be used according to a compilation of possible evidence by the UN secretariat.