This is a post in our series of responses to comments made on our University Times article. It’s the second of a number of responses we plan to make regarding the question of the United Nations and their position on Ireland’s abortion law. Our previous post on this topic discussed the less-than-respectable qualifications of the UN Human Rights Committee, ending with the question as to whether, even if the HRC is a complete mess of an institution, it still got it right on the Irish abortion question.
It didn’t. One reason for this relates to the sources of international law.
The sources of international law are formally recognised by Article 38 of the Statute of the International Court of Justice. The abortion cases pertaining to Ireland are not ICJ cases, but international lawyers take Article 38 as ‘a general guideline of what sources exist in international law in general’.(1) Article 38 reads:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- international conventions, whether general or particular, establishing rules expressly recognised by the contesting States;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognised by civilised nations;
- … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Of these, it’s the first three (a, b and c) that are considered the ‘main’ sources of international law.(2) This post discusses the question of customary international law as it relates to abortion.
A concrete definition of customary international law is hard to establish. In the Fisheries (UK v Norway) case (at 191), it was described as ‘the generalisation of the practice of States’. Lepard provides this definition by amalgamating a series of others:
‘A customary practice among states can evolve into a customary legal norm binding on all states if 1) the practice is consistent among states and endures over some periods of time, and 2) states believe that the practice is legally mandated (a belief referred to as opinio juris sive necessitas or more simply opinio juris’.
He adds that the 1985 Continental Shelf Case (Libya v Malta) reaffirmed these elements in stating that the substance of customary international law must ‘be looked for primarily in the actual practice and opinio juris of States’.(3)
One of the leading textbooks, Brownlie’s Principles of Public International Law, describes customary law as having three ingredients: (i) duration and consistency of practice, (ii) generality of practice, and (iii) that the practice is accepted as law [opinio juris]. Whichever definition you take, it’s clear that what is definitely required for a practice to become part of customary law is consistency. So can we claim a right to abortion based on customary international law?
There have been attempts (for example, this paper by Boland and Katzive and this one by Rahman) to portray abortion legislation around the world as moving incessantly towards liberalisation.(4) Awkward, then, to point to the Dominican Republic, which in 2009 recognised the inviolable constitutional right to life from conception to death. Or to Poland, where a more restrictive law on abortion was adopted in 1993. Or to the US Partial Birth Abortion Ban Act, enacted in 2003 and upheld by the US Supreme Court in 2007 in Gonzales v Carhart. Awkward, too, to note the huge variety in abortion regimes around the world. Here’s a map produced by the pro-abortion organisation Centre for Reproductive Rights (CRR). There’s so much variety, and so little consistency, there. (As an aside, there’s a serious problem with CRR including Australia as a country that allows abortion without restriction as to reason—abortion in Australia is a state matter, not a national one, and while all states allow abortion, grounds, term limits and sanctions differ from state to state. It’s the same in the US). Tozzi points out that:
‘Conceptually, such a show-of-hands tallying of the nations of the world is misguided, as it is really a survey of the domestic laws of various nations, and does not demonstrate a “general and consistent practice of states followed by them from a sense of legal obligation”’.(5)
Consistency, then, that vital ingredient for customary international law, is practically impossible to claim. So many states prohibit or restrict abortion that there can be no customary law recognising abortion as a right. So why do the HRC seem to believe that there is? This touches on something that Thomas Buergenthal, a former judge of the International Court of Justice, picked up on writing extra-judicially on the HRC:
‘The Committee must not let itself be drawn into the political thicket of UN human rights activities. That means that it must work hard to be perceived as being what in reality it is: an independent, non-political body of experts that interprets and applies the [ICCPR] in an objective and legally sound manner. The Committee must therefore take special care that its decisions interpreting and applying the [ICCPR] and Optional Protocol are perceived as being culturally neutral and legally beyond reproach. To satisfy this requirement, the Committee may have to … assure itself that the principles enunciated do in fact have universal applicability’.
Abortion doesn’t have universal applicability. It’s not universal, and countless people around the world wholeheartedly disagree with the taking of pre-born life. This question of cultural neutrality is an interesting one. Looking at the CRR’s map, there seems to be something of a ‘developed v developing’ divide. With the UN so eager to push for abortion, even going so far as to ask why the Irish government have not pressured voters to repeal the Eighth Amendment, it is worth wondering whether the interests of developed countries dominate the UN’s agenda, while the culture and sovereignty of developing nations is considered less worthy of respect.
So, it’s incredibly hard to claim a right to abortion under customary international law. But of course, custom isn’t the only way international law is formed. What about treaties?
We’ll deal with those in the next post.
The Statistics Fairy