Bench Memos

Sadly, No International Right to Life that Includes the Unborn

For two decades, the radical Left at the United Nations has tried to create an international right to abortion by misconstruing U.N. documents and pushing faulty legal theories. Rita Joseph has taken on this deceitful effort in her new book, Human Rights and the Unborn Child, reviewed favorably at Bench Memos by John Keown, and for that she is to be commended. Yet, perhaps unwittingly, she herself has fallen into the same pattern as the Left in trying to advance an international right to life for the unborn child.

The radical Left claims that customary international law has developed in such a way that it now demands an international right to abortion that is binding on all sovereign states. In support of this proposition, they cite non-binding U.N. reports, resolutions, and committee recommendations. Our response has always been that non-binding documents cannot establish international law. Were it otherwise, U.N. bureaucrats could draft resolution after resolution full of fanciful “rights” that no nation would willingly consent to but which would be binding on all.

They also assert that a right to abortion has been created through the statements of U.N.  committees. This, too, is dangerously wrong. U.N. committees are charged with monitoring compliance with U.N. treaties. State parties must appear every few years to report on how implementation is going. They are peopled with academics and unaccountable busybodies that most people on the globe have never ever heard of. They routinely “interpret” binding documents to mean the opposite of what they say, showing no compunction in trampling on the sovereignty of nations.

Rita Joseph’s contribution to the fight against the anti-life forces at the U.N. is exemplary. I have known and worked with Rita at the U.N. for years. Her knowledge of U.N. documents and negotiations is encyclopedic. Yet the arguments she advances in her new book on behalf of the right to life, ironically and certainly inadvertently, validate our opponents’ tactics in trying to set up a right to abortion.

Three examples.

Rita argues that the Universal Declaration of Human Rights (UDHR) is now considered a part of customary international law, despite the fact that it is a non-binding declaration. She argues that the phrase “right to Life” in that document therefore now binds states to change their laws on abortion. Would that this were the case; history and practice show that it is not. Customary international law only comes into being over decades and even centuries when there is consistent state practice out of a sense of legal obligation. The drafting of the Declaration, and even a cursory look at state practice, shows nothing like universal state practice, especially on the right to life.

As Mary Ann Glendon showed in her masterful work on the drafting of the UDHR, some states, led by Chile and Lebanon, considered explicit protection for the unborn child, while others, led by the Soviet Union, pushed for a ban on capital punishment. In the end neither proposal was adopted, resulting in a general statement on the “right to life” so that states could interpret the document in their own way. Pro-life nations could say “from conception” and pro-abortion countries could say “from birth.” This is the way of international negotiations.

With regard to binding treaties, Joseph asserts the 2006 Convention on the Rights of Persons with Disabilities has established a right to life for the unborn child. It is almost irrelevant what the document says. Just know it was negotiated at a time when many countries in the world had at least some form of legalized abortion. It beggars the imagination that these same states would negotiate and then ratify a document that now binds them legally to change those laws.

Elsewhere, Rita argues that the statements of U.N. committees support the proposition that the right to life includes unborn children. Yet we have fought for years against the idea that these committees have any “authority” to establish treaty interpretations that bind sovereign states. Indeed, in recent years, these kangaroo committees have taken it upon themselves to reinterpret hard-law treaties to include a right to abortion where the treaty itself was silent, and have now directed more than 90 countries to liberalize their abortion laws.

Either non-binding resolutions create customary international law or they do not. Either U.N. committees speak with authority or they do not. Our disagreement with Rita is one of means, not ends. We cannot win this debate by undercutting the very heart of our arguments against the other side. We cannot win by undercutting a proper understanding of how international law and human rights are developed.

Appeals to international law tend to be the last resort of those who cannot get their way domestically. Advocates both pro-life and pro-abortion jump through linguistic hoops precisely because none of these documents do what they say they do. What’s more neither side at this point could obtain a treaty that explicitly grants a right to abortion or a right to life for the unborn.

We do believe that states parties have the right to determine for themselves their own treaty obligations, and there is plenty of language in binding treaties that states parties can use to protect the unborn child from abortion. But then, if a country wanted to do that, why not just do it in their domestic laws? Why invoke the increasingly murky and cockamamie world of international law and human rights? There is no shortcut to making the case domestically and democratically.

— Austin Ruse is president of C-FAM (Catholic Family and Human Rights Institute), a New York– and Washington, D.C. –based research institute that works exclusively on international social policy.

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