Amnesty Ireland are again misinterpreting human rights law by claiming that abortion is a human right recognised under international law. This time they’ve enlisted the help of two of Amnesty International’s leading legal advisors to help buttress their case, namely Jaime Todd-Gher and Christina Zampas.
In the letter pages of The Irish Times the duo recently objected to Breda O’Brien’s point in her weekly column that abortion is not a human right under international human rights law. In part, O’Brien based her claim on a 2008 law review article Todd-Gher and Zampas themselves co-authored and in which they admit that human rights committees “are not judicial bodies and their concluding observations are not legally binding.”
Tellingly, Todd-Gher and Zampas do not retract that statement in their letter. This admission by the Amnesty duo is important because it is precisely the opinions of these committees that Amnesty Ireland cites in order to justify its spurious claim that abortion is a human right under international human rights law.
The pair’s statement on the legal status of human rights committees is perfectly sound. As Prof. William Binchy noted in his letter in the same paper, the International Law Association, our own Supreme Court, and an overwhelming consensus of human rights scholars agree that the observations of human rights bodies are not legally binding under international law, i.e. that these observations do not create new human rights law.
Yet, remarkably, Todd-Gher and Zampas still manage to claim in their letter that abortion is in fact a human right. They postulate that this right is “firmly grounded in decades of jurisprudence from a range of human rights bodies and experts.” This is a blatant contradiction. As Todd-Gher and Zampas acknowledge, these bodies (the various UN committees) do not have the authority to declare the existence of new rights not found in the actual text of international human rights treaties. So the right to abortion cannot be “firmly grounded” in the opinions of these bodies. The pair’s justification for the supposed right thus disintegrates. International human rights law is constituted by the text of international human rights treaties (and in some cases customary law – but this is of no help to abortion proponents) and not the views of UN committees.
They then go on to equate the supposed right to abortion with the right not to be forcibly sterilised. They argue that since the latter right is not explicitly enumerated in international human rights law treaties yet is unquestionably a genuine human right, then so too can abortion be considered a genuine human right. Their argument is ridiculous. Unlike a supposed right to abortion, the right not to be forcibly sterilised (a) is uncontroversial, (b) follows seamlessly from rights explicitly enumerated in human rights law, (c) is perfectly in accord with the drafting history of the relevant human rights treaties,* and (d) involves no implication that a whole class of human beings can be killed at will.
Amnesty’s claims in relation to the legal status of abortion in international human rights law are without foundation and the wider body politic and the general public need to know this.
[*The drafting history (or the travaux préparatoires) of the various international human rights treaties makes perfectly clear that abortion was not considered even an implied human right.]
