Ligia M. De Jesus, Treaty Interpretation of the Right to Life Before Birth by Latin American and Caribbean States: an Analysis of Common International Treaty Obligations and Relevant State Practice at International Fora

• Citation: Vol. 26 No. 2
• Publication year: 2010

TREATY INTERPRETATION OF THE RIGHT TO LIFE BEFORE BIRTH BY LATIN AMERICAN AND CARIBBEAN STATES: AN ANALYSIS OF COMMON INTERNATIONAL TREATY OBLIGATIONS AND RELEVANT STATE PRACTICE AT INTERNATIONAL FORA

Ligia M. De Jesus*

INTRODUCTION 600

1. RELEVANT INTERNATIONAL LAW ON A PRENATAL RIGHT TO LIFE

   IN LATIN AMERICA AND THE CARIBBEAN 601

2. INTERNATIONAL STATE PRACTICE ON THE APPLICATION OF THE

   CRC AND THE AMERICAN CONVENTION ON HUMAN RIGHTS 606

   1. Regional Interpretation of the CRC’s Protection of Life Before Birth 606

   2. Regional Interpretation of the American Convention on Human Rights 614

   3. Consistent Regional Opposition to the Creation of Abortion Rights 617

      1. Inexistence of International Abortion Rights 617

      2. Promotion of the Creation of International Abortion Rights by Non-Judicial Human Rights Bodies 622

      3. Latin American and Caribbean States’ Opposition to the

Creation of International Abortion Rights 626

CONCLUSION 634

* Associate Professor, Ave Maria School of Law, Naples, Florida; LL.M. (Harvard Law School).

INTRODUCTION

It has been argued that the Convention on the Rights of the Child (“CRC”)1 and the American Convention on Human Rights (“American Convention”)2 mandate the legalization of abortion3 as a human rights obligation,4 particularly in developing countries where abortion is considered a crime, such as in most of Latin America and the Caribbean region.5 However, an appropriate application of international norms of treaty interpretation reveals that these treaties actually recognize and protect the unborn child’s right to life and health in a comprehensive manner and are incompatible with the creation of abortion rights,6 at either the regional or international level.

1. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

2. Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention]. As of 2012, the following states have ratified the American Convention: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. Non-parties in

   the Caribbean and Latin American region are: Antigua and Barbuda, Bahamas, Belize, Cuba, Guyana, St. Kitts and Nevis, St. Lucia, and St. Vincent and the Grenadines. Signatories and Ratifications: American Convention on Human Rights, ORG. AM. STATES, http://www.oas.org/dil/treaties_B-32_American_Convention_on_ Human_Rights_sign.htm (last visited Oct. 8, 2012) [hereinafter American Convention Signatories and Ratifications].

3. By “abortion” this article refers to any intentional or voluntary act resulting in the death of a fetus or

   embryo destruction, such as elective, voluntary abortion, clearly distinguishable from a “miscarriage” or “stillbirth.” See Mary V. Rorty & JoAnn V. Pinkerton, Elective Fetal Reduction: The Ultimate Elective Surgery, 13 J. CONTEMP. HEALTH L. & POL’Y 53, 58 (1996) (“[I]t is the request of the mother that makes an abortion elective, not the characteristics of the fetus.”). Embryo destruction includes embryonic death, loss, disposal and so-called “embryo reduction” resulting from the use of reproductive technologies. Id. at 55–56 (using the term “embryonic reduction” for multi-fetal pregnancy reduction).

4. See infra Part III.C.

5. For the purposes of this paper, “Latin America and the Caribbean” will include states in the geographic region that have ratified both the CRC and the American Convention: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. 1 UNITED NATIONS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-

   GENERAL: STATUS AS AT 1 APRIL 2009, at 389–91, U.N. Doc. ST/LEG/SER.E/26, U.N. Sales No. E.09.V.3

   (2009) [hereinafter SIGNATORIES AND RATIFICATIONS OF MULTILATERAL TREATIES]; American Convention Signatories and Ratifications, supra note 2. This category does not include foreign territories in the geographic region, such as Puerto Rico, Guadeloupe, or French Guyana.

6. For the purposes of this paper, “abortion rights” will allude to the alleged existence of a human right to

   all forms of abortion and alleged rights to procreate through reproductive technologies that cause embryo destruction or fetal death. See, e.g., Christina Zampas & Jaime M. Gher, Abortion as a Human Right— International and Regional Standards, 8 HUM. RTS. L. REV. 249 (2008) (examining a woman’s right to abortion in the context of international human rights standards).

   International norms of treaty interpretation, as stated in the Vienna Convention on the Law of Treaties (“Vienna Convention”),7 establish that the ordinary meaning of the terms in a treaty can be determined by, among other things, “[a]ny subsequent practice in the application of the treaty which

   establishes the agreement of the parties regarding its interpretation” and “[a]ny relevant rules of international law applicable in the relations between the parties.”8 This Article documents evidence of the above as it pertains to the interpretation of the CRC and the American Convention by Latin American and Caribbean states.

   
   

   Even though all of the information presented in this Article may support an argument for the existence of an emerging norm of customary international law in favor of the unborn child’s right to life,9 an analysis of whether current state practice and opinio juris rise to the level of regional custom10 is beyond the scope of this Article, which instead focuses on treaty interpretation only.

   
   

   1. RELEVANT INTERNATIONAL LAW ON A PRENATAL RIGHT TO LIFE IN LATIN AMERICA AND THE CARIBBEAN

      
      

      Treaty law is a primary source of international law according to Article 38 of the Statute of the International Court of Justice.11 Two international treaties stand out for their recognition of a right to life from conception and their general protection of life, health, and development before birth: the American Convention and the CRC.12

      
      

7. Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.

8 Id. art. 31(3)(b)–(c)

1. International custom is a source of international law where it is “evidence of a general practice accepted as law.” Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055; see also Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para. 64 (July 8); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, para. 184 (June 27);

   Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1985 I.C.J. 13, para. 27 (June 3).

2. Regional and local custom can be a source of customary international law. See Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6, 23, 39 (Apr. 12); Haya de la Torre Case (Colom. v. Peru), 1951

   I.C.J. 71, 81 (June 13). The former established that “constant and uniform practice” practiced by the states in question, along with express agreement (as opposed to tacit assent inferred from lack of opposition) is required for the recognition of a regional norm of customary international law, thus setting a higher threshold that is difficult to meet, albeit not impossible. See Right of Passage Over Indian Territory, 1960 I.C.J. at 40, 42–43.

3. Statute of the International Court of Justice, supra note 9, art. 38.

4. See CRC, supra note 1, pmbl.; American Convention, supra note 2, art. 4.

   All Latin American and Caribbean states ratified the CRC.13 The preamble of the CRC affirms the CRC’s application to the unborn child “before as well as after birth,”14 and Article 6(2) requires that states parties “ensure to the maximum extent possible the survival and development of the child.”15 At the regional level, the American Convention on Human Rights, ratified by all Latin American and Caribbean states, explicitly recognizes the right to life from conception in Article 4(1), which states that “[e]very person has the right to have his life respected . . . from the moment of conception.”16

   
   

   In addition, Latin American and Caribbean states have ratified other international human rights treaties, both global and regional, that protect pre- natal life, health, and development. For instance, all Latin American and Caribbean states have ratified the International Covenant on Civil and Political

   Rights,17 which prohibits imposing the death penalty on pregnant women in

   Article 6(5).18 Similar bans on imposing the death penalty on pregnant women can be found in the American Convention in Article 4(5),19 and in international humanitarian law instruments ratified by nearly all Latin American and Caribbean states, such as Article 6(4) of Additional Protocol II to the Geneva Conventions.20 Article 14 of the Geneva Convention (IV) Relative to the

   
   

5. SIGNATORIES AND RATIFICATIONS OF MULTILATERAL TREATIES, supra note 5, at 389–91. The United

   States and Somalia continue to be the only countries in the world that have signed but not ratified the CRC. Id.

6. CRC, supra note 1, pmbl. (quoting Declaration of the Rights of the Child, G.A. Res. 1386 (XIV), U.N. Doc. A/RES/1386 (XIV) (Nov. 20, 1959)). Inter-American Commission on Human Rights (“IACHR”)

   member Luis Demetrio Tinoco Castro stated that this paragraph in the U.N. Declaration of the Rights of the Child inspired the Inter-American Juridical Committee that drafted the American Declaration on the Rights and Duties of Man by expressly recognizing that “the human being exists, has rights, and needs protection, including legal protection, in the period preceding his birth.” Baby Boy v. United States, Case 2141, Inter-Am. Comm’n H.R., Report No. 23/81, OEA/Ser.L./V/II.54, doc. 9 rev. 1 (1980–1981) (Luis Demetrio Tinoco Castro, Comm’r, dissenting), available at http://www.cidh.org/annualrep/80.81en...