NEW YORK, January 10 (C-FAM) The high court of the Salta province in Argentina became the latest in the effort to create an international right to abortion.
In December, the court cited the opinions of UN experts that monitor human rights agreements to claim a right to abortion for a 14-year old raped by her stepfather.
The ruling is a cautionary tale about the power of so-called “soft law.” Even though UN expert opinions are non-binding they are used to challenge national laws.
UN experts on treaty monitoring committees routinely tell countries to liberalize their abortion laws, even though there is no international right to abortion. No UN treaty mentions abortion — international law and global health experts stated as much in the The San Jose Articles.
Abortion groups want national courts to recognize these opinions because they believe an international right to abortion can be developed by way of custom. The scheme is based on an untested legal theory and cases where courts have struck down abortion laws because of non-binding opinions from UN experts are few. The high courts of Chile, Mexico and Peru, have declined to give any weight to the committee opinions on abortion. But Argentina is proving a fertile ground for these claims.
A lower court judge denied the 14-year old girl an abortion arguing from the Inter-American on Human Rights, a binding treaty that explicitly recognizes the right to life of unborn children from the moment of conception. But the high court of Salta gave credence to the UN experts.
The Salta case corroborates the apprehension of U.S. senators who do not want to ratify UN human rights treaties that could empower UN bureaucrats and activist judges to promote an international right to abortion. The U.S. Senate is considering whether to ratify the UN Disabilities treaty. Its monitoring experts have already released controversial opinions on abortion even though the treaty has only been in force for just over two years. The fears of senators are not limited to abortion.
Despite its significant influence, the United States cannot effectively control the development of new international norms through the UN human rights system or legal development in other countries, according to international law experts who testified before the Senate Foreign Relations Committee in November.
No one country can prevent the development of a customary norm of international law, Timothy Meyers of the University of Georgia told Senators in November. The best a country can do is prevent the application of a particular norm or certain provisions in a treaty in an unforeseen way, he said. Even then, it would find itself in the uncomfortable position of being at odds with how other nations understand their obligations under international law.
The Salta court followed the lead of the Argentine Supreme Court in a similar decision last year. The effect of these rulings is limited on the other 23 Argentine provinces because they cannot bind lower courts or compel legislative change. The galvanizing effect of Pope Francis’ election on the pro-life cause in Argentina is an obstacle to any legislative changes.