Weblogic

Introduction

Abortion advocates often claim there is an “international right to abortion.”¹

If there were such a thing as an “international right to abortion,” how would we know it? There is, after all, no “world government,” no global legislative authority, that could impose a “global right.” Even the United Nations (U.N.) is simply an organization comprising sovereign nations that retain and guard their sovereignty.²

Yet there is such a thing as “international law.” It has two sources.

The first, treaties, are written documents between two or more nations. Treaties have precise terms. Like contracts between individuals, they bind those who sign them. The second kind of source, customary international law, is not written; rather, it is a “custom” among nations, a way of behaving or interacting that becomes fixed over time into a pattern all nations follow.³ Therefore its unwritten “terms” must be determined through an examination of various sources, and there is much controversy over what is good evidence of custom.

There are supra-national courts, for example the European Court of Human Rights (ECHR), which render decisions with international consequences. These courts may interpret language in treaties or “find” whether customary international law exists on a particular subject.

This paper will examine the various sources of international law to see if they contain a “right” to abortion. The first section will look at the premier human-rights document, the Universal Declaration of Human Rights (hereafter, the “Declaration”), as well as the International Covenant on Civil and Political Rights (hereafter, “Covenant”), a treaty which implements the Declaration, to see if they contain a right to abortion. The second section will examine evidence of “customary international law” in search of a “right” to abortion. The third section will outline the case (in which the author is a consultant) that was heard in December 2009 by the ECHR, ABC v. Ireland, in which plaintiffs argue an international right to abortion exists that trumps Ireland’s constitutional protection of the unborn.

Universal Declaration of Human Rights and Treaties

Adopted by the United Nations General Assembly in 1948, the Declaration is the “grand-daddy” of all human-rights documents. Though not binding law itself,⁴ the Declaration is widely regarded as the source, in the modern understanding, of human rights.⁵

The Preamble describes the Declaration as “a common standard of achievement for all peoples and nations” and states that “the peoples of the United Nations have . . . reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women.”⁶

The second article stresses further that these rights and freedoms belong to “everyone,” without discrimination, by virtue of being a human being: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”⁷

In the third article, we find the first of the “rights” belonging to everyone, “Everyone has the right to life.”⁸ The right to life is the foundation of all other human rights.

Though the Declaration states the understanding of the international community regarding human rights, it does not create legal obligations binding upon nations. Thus, while the Declaration is extremely persuasive, it is not itself international law. Consequently, a system of treaties was devised to put into legal obligation the principles of the Declaration.⁹ One such treaty, the Covenant,¹⁰ echoes and enforces the right to life of the Declaration. The Covenant proclaims, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”¹¹ Notably, the Covenant articulates the right as applying to every “human being.” Human being is a scientific term, not a legal term of art. Unlike the word “person” that, through judicial interpretation in the United States, has left the unborn outside a sphere of protection, “human being” is a scientific term for a living human organism.

Thus, whatever else may be said about abortion proponents’ claim that treaties create a right to abortion, the basic human-rights documents are, if anything, against abortion; they certainly do not create a right for abortion.

Customary International Law and a “Right” to Abortion

Before examining the argument that customary international law contains a right to abortion, it is important to understand the distinction between customary law and evidence of customary law. Customary international law is the custom of nations that, over time, gains the consent of all the nations of the world.¹² Since customary law is not written, we have to look for evidence of it. In the United States, for example, the Supreme Court in Sosa v. Alvarez-Machain stated:

Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.¹³

The Court prefaced its definition with a reminder that though these are “long” recognized sources of evidence, they have always been “cautiously” recognized.¹⁴

Abortion-as-a-right advocates attempt to squeeze terms such as “reproductive health” and “reproductive rights” into U.N. documents in order to subsequently draw out a “right” to abortion under customary law. An illustrative example comes from the 2008 report by Paul Hunt, a special rapporteur to the U.N. on the right to health. He wrote:

[A] State has a core obligation to ensure a minimum “basket” of health-related services and facilities, including essential food to ensure freedom from hunger, basic sanitation and adequate water, essential medicines, immunization against the community’s major infectious diseases, and sexual and reproductive health services including information, family planning, prenatal and post-natal services, and emergency obstetric care.¹⁵

Such language may seem innocuous, but through the term “reproductive health services,” Hunt is attempting to place abortion in the “basket” of basic health services. Such language will later be cited by pro-abortion advocates (see below) as evidence of an existing international right to abortion. Additional “evidence” is claimed to come from statements of U.N. committees. Each “human rights” treaty contains provisions for the election of a committee to make advisory recommendations about the treaty. By the very terms of the treaties, committee recommendations are meant to be purely advisory; the committees are not empowered to make binding interpretations of what those terms mean.¹⁶ Though the committees have no enforcement capability, their views are increasingly used by sympathetic jurists, government officials, and activists to pressure governments to change laws and policies. For example, the U.N. committee charged with offering guidance on the obligations incumbent upon nations that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) is advancing a pro-abortion agenda.¹⁷ One typical example comes from a CEDAW committee report on Croatia. Despite the fact that CEDAW does not contain the word “abortion” or an equivalent, the committee claimed, “The refusal, by some hospitals [in Croatia], to provide abortions on the basis of conscientious objection of doctors [constitutes] an infringement of women’s reproductive rights.”¹⁸

In addition to committee comments and rapporteur’s reports, conference statements (or “outcome documents”) which are negotiated at, and issued after, every U.N. meeting, even regional meetings, are a third source cited by pro-abortion lawyers as evidence of customary international law. The statement issued after the 1994 International Conference on Population and Development (ICPD) in Cairo, Egypt, convened by the United Nations, is the prime example. Pro-abortion forces had hoped to establish—to have nations endorse—an international right to abortion. However, this direct tactic failed. Many nations made clear that they did not recognize such a “right.”¹⁹ Thus, abortion proponents came up with the novel argument that a right to abortion had “evolved” over time since Cairo, through repetition of some of the language used in the Cairo document. In particular, they focused on the following:

Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate healthcare services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. In line with the above definition of reproductive health, reproductive health care is defined as the constellation of methods, techniques and services that contribute to reproductive health and well-being through preventing and solving reproductive health problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations, and not merely counseling and care related to reproduction and sexually transmitted diseases.²⁰

However, this novel strategy—building up a body of repetitions of quasi-official U.N. statements using language such as that from the Cairo declaration as evidence of a new customary-law right to abortion—was resisted at various international meetings and really came apart with the election of President George W. Bush and his replacement of pro-abortion U.S. delegates at international meetings. At the U.N. Special Session on Children in 2001/02, a colloquy among delegates negotiating the final statement elicited an admission on this point:

In a June 2001 preparatory meeting for the United Nations General Assembly Special Session on Children, the U.S. delegate asked Andras Vamos-Goldman, Counsellor (Political Affairs) from the permanent Canadian mission, what was meant by the phrase “equal access to services . . . including sexual and reproductive health care,” to which the Canadian delegate replied, “of course–and I hate to use the word–but in ‘services’ is included abortion.”²¹

In other words, delegates would not affirm language that was meant to include abortion.

The United States then appended an “explanatory statement” when it agreed to the Outcome Document:

Concerning references in the document to UN conferences and summits and their five year reviews, the United States does not understand any endorsement of these conferences to be interpreted as promoting abortion.

The United States understands the terms “basic social services, such as education, nutrition, health care, including sexual and reproductive health,” “health care,” “quality health care services,” “reproductive health care,” “family planning,” “sexual health,” “reproductive health,” “safe motherhood,” in the documents to in no way include abortion or abortion-related services or the use of abortifacients.”²² Since evidence of custom requires unanimity among the nations (after all, it is supposed to be a custom that they follow), these developments at the Children’s Summit demonstrate that no right to abortion has developed or evolved since Cairo.²³

The strategy of the abortion lobby was exposed in 2003 by Congressman Chris Smith (R-N.J.), who placed into the Congressional Record documents from the Center for Reproductive Rights outlining their strategy,²⁴ as detailed by their International Legal Program Summary of Strategic Planning:

The ILP’s overarching goal is to ensure that governments worldwide guarantee reproductive rights out of an understanding that they are legally bound to do so.

And, since pro-abortion advocates know it is unlikely that a treaty expressly guaranteeing abortion expressly ever be signed by nations that prohibit abortion:

The other principal option is to develop “soft norms” or jurisprudence (decisions or interpretations) to guide states’ compliance with binding norms.

The memo goes on to explain what is meant by “soft norms”:

These norms result from interpretations of human rights treaty committees, rulings of international tribunals, resolutions of inter-governmental political bodies, agreed conclusions in international conferences and reports of special rapporteurs. (Sources of soft norms include the European Court of Human Rights, the CEDAW Committee, provisions from the Platform for Action of the Beijing Fourth World Conference on Women, and reports from the Special Rapporteur on the Right to Health.)²⁵

The three things I have been discussing—statements of Special Rapporteurs, conference statements, and committee comments—are, thus, all “soft norms.” Consonant with this strategy of arguing that soft norms have given rise to an abortion right, the CRR in 2001 filed suit against President Bush.²⁶ They asserted:

Customary international law is embodied, inter alia, in treaties (even if not ratified by the United States), the writings of international law jurists, and documents produced by United Nations international conferences. The Restatement Third of the Foreign Relations Law of the United States (American Law Institute 1987) defines customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”

And further:

Customary international law also pre-empts inconsistent state statutes and policies. Thus, by working to establish the right to abortion as a human right in customary international law, CRLP fulfills its mission of protecting women’s access to abortion from interference or prohibition by the States.

Simply put, the goal of abortion advocates, such as CRR, is to include abortion under the guise of “reproductive health” in “international law.” While they were stymied in the Doha Declaration and at the Children’s Summit, they continue to press the argument elsewhere, and have even won a few victories,²⁷ though less as established law than as an “emerging consensus,” as will be shown below.

The ABC Argument for an International Right to Abortion In early December 2009, the author was in Strasbourg, France, consulting on a case before the European Court of Human Rights (ECHR), ABC v. Ireland. Plaintiffs in the case are three anonymous women (referred to as “A,” “B,” and “C”) who challenge Ireland’s protection of the unborn. They claim the law, which permits abortion only to save the life of the mother, jeopardized their “health and well-being” because they were required to travel abroad for abortions. The European Court of Human Rights (ECHR) is the human-rights court of the Council of Europe, which has 47 members, including nations beyond Europe proper, such as Armenia. The decision of the Court will affect policy for all of the Council, and the outcome may be influential in American courts, which have increasingly looked to what other countries are doing when interpreting our own Constitution.²⁸ If the ECHR were to recognize abortion as a regional right, it would be used by abortion advocates as evidence that abortion is an international right. (See CRR’s argument above.)

The ECHR interprets the European Convention on Human Rights (the Convention).²⁹ Plaintiffs have asked the court to find a “right to abortion” in the Convention, and claim that the “right” would trump the right to life guaranteed in Ireland’s Constitution. However, like the Declaration and the Covenant, the Convention appears to be, if anything, pro-life. Article 2 contains an express right to life:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection. With such an explicit right to life, how can anyone claim this document creates a right to abortion?

The plaintiffs’ argument is that the “right” to abortion, though not explicit, is implied by other articles of the Convention. Plaintiffs rely primarily on Article 3’s prohibition of torture³⁰ and Article 8’s guarantee of privacy for their argument.³¹ Essentially, they contend that when these provisions are read together, they grant a right to abortion that is supreme.

However, besides distorting the meaning of articles in the Convention, their argument ignores ECHR case precedent. In Vo v. France, the ECHR found: “The issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.”³² The principle of the margin of appreciation respects that member states are sovereign nations. The Council is not a government that gives out authority. It is created by these sovereign nations that have delegated to it some authority. That means that states are free, under the Convention, to deal with abortion as they see fit.

Through several national referenda, the people of the Republic of Ireland declined to create a right to abortion and voted for the measure that protects the right to life of its unborn members, now Section 40.3.3 of their Constitution.³³ Notably, Ireland is not the only country that protects the unborn. Poland and Malta also have strong protections.

Nevertheless, plaintiffs in the ABC case argue that there is an international “consensus” to the contrary, and that such a consensus is binding on Ireland:

A strong international consensus can demonstrate that a less burdensome alternative is available and preferred throughout the member States. . . . The State fails to address the fact that Ireland’s abortion laws are completely incongruous with the European consensus and international standards on lawful abortion to protect women’s health and well-being.³⁴

However, the plaintiffs’ use of the word “consensus” is misleading. As noted, two other European countries, Poland and Malta, are pro-life; thus there is hardly an “international,” much less European, pro-abortion consensus. Moreover, a member state is not legally bound by a “consensus.” The only way a state is bound is if there is a legal standard that binds it. Whether there is or is not a consensus, or whether a majority of other member states legislate one way or another, is irrelevant. Rather, the proper question for the Court is whether there is a legal standard binding on Ireland. In the absence of such a binding legal standard, plaintiffs ask the ECHR to expand the decision in a 2007 case, Tysiac v. Poland,³⁵ to create one. While the Court there found that Poland had violated Article 8 of the Convention in the case of Alicia Tysiac, who was not given a “health” exception for an abortion, a proper understanding of the holding in the Tysiac case would actually require that the Court rule against the plaintiffs in ABC v. Ireland.

The Court in Tysiac held that Poland had not followed its own standards regarding its “health” exception for abortion: “In this context, the Court observes that the applicable Polish law, the 1993 Act, while it prohibits abortion, provides for certain exceptions. . . . Hence, it is not the Court’s task in the present case to examine whether the Convention guarantees a right to have an abortion.”³⁶

Thus, according to the Court, even though Tysiac touched on abortion, the case was not about whether there was a right to abortion under the Convention. Rather, the Court’s sole concern was whether Poland followed Poland’s existing abortion law in the particular case. Abortion remains in the margin of appreciation.

Under precedent from Vo and Tysiac, ABC v. Ireland should be an open and shut win for the Irish government. One would think that the Court would not even entertain oral arguments in the ABC case, because it has to do with a sovereign state’s constitutional provisions on a subject on which it is permitted to do as it wishes under legal precedent from the European Court of Human Rights.

Further, the case does not meet the basic procedural conditions of admissibility under the Convention. Cases can be brought to the Court only after domestic remedies have been exhausted. Article 35 §1 requires that plaintiffs must first take their case through the courts of the country concerned, through the highest possible level of jurisdiction.³⁷ This respects the sovereignty of nations, ensuring that a state has the first opportunity to rule on and perhaps provide redress for the alleged violation. In ABC v. Ireland, there is no judgment of the Irish Courts for the ECHR to review because the plaintiffs never sought such redress.

A 2006 ECHR case, D. v. Ireland, is directly on point. The case involved an Irish woman who, not being allowed to get an abortion in her home country, traveled to Britain in order to legally abort. She sued the government of Ireland before the ECHR, citing several articles of the Convention in her complaint, including Articles 3 and 8. On July 5, 2006, the Court declared the case inadmissible “on the ground that the applicant had not exhausted domestic remedies, in that she failed to bring an action before the Irish courts.” Thus, for the Court to hear oral arguments on the merits of the ABC case, as it did in December 2010, is astonishing. The astonishment is compounded when one considers that the case, in another extraordinary move, was referred to the Grand Chamber (i.e., all of the judges) before a general chamber had reviewed it or had issued a ruling. These are troubling signs that the Court may create a “right” to abortion that trumps a European state’s own constitution. As noted, such a “regional” right to abortion would contribute to the broader argument that there is a customary international right to abortion that is developing.³⁸

Should the Court impinge on the sovereignty of Ireland, how will Ireland respond? It is not inconceivable that Ireland could denounce a pro-abortion decision and the Court, perhaps even withdrawing from the Council. An ECHR decision in November 2009, Lautsi v. Italy,³⁹ prohibiting Italian classrooms from displaying a crucifix, has caused unrest and protests throughout Italy. Another overreaching opinion could be the demise of the ECHR. That would be an ironic end to a project begun to ensure peace and human rights, and to unite Europe.

Conclusion

Though ABC v. Ireland is simply one case, in one country, involving only three plaintiffs, it nevertheless has far-reaching implications, both for Ireland and for the greater international community. Supra-national governing bodies are a product of a 20th-century desire for international cooperation. These institutions, such as the U.N. and the European Union, are meant to prevent a small but powerful tyranny from trampling upon inviolable human rights. ABC v. Ireland could represent a departure from this model by allowing a small number of pro-abortion activists to define what customary international law is on the issue of abortion.

What are the implications for the United States, a nation that prides itself on its written, stable constitution? For over 200 years, fidelity to the Constitution has allowed the country to grow and prosper and the U.S. has been reluctant to cede power to supra-national organizations. However, given the United States Supreme Court’s control over abortion and its increasing reliance on international law, if abortion is considered a customary international right, this issue could not only be taken completely out of the hands of the American people, but even out of the realm of American jurisprudence. The court’s ruling in ABC v. Ireland, then, is not one to be overlooked or downplayed. Pro-life citizens must guard carefully their national institutions to prevent pro-abortion code words from turning the “consensus” of the few into the custom binding all.

NOTES

1. See Veronica Undurraga & Rebecca J. Cook, Constitutional Incorporation of International and Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006, in CONSTITUTING EQUALITY, GENDER EQUALITY AND COMPARATIVE CONSTITUTIONAL LAW 10, 215-247 at 243 (Susan H. Williams ed., 2009). “International human rights law has given broader recognition for gender-specific needs and rights of women than most domestic . . . legal systems. This is one reason why women’s advocates resort to international law to legitimate their demands.”

2. The U.N. Charter states, “Nothing contained [herein] shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require Members to submit such matters to settlement under the present Charter.” United Nations Charter, Article 2, Para. 7. Further, a 1960 General Assembly Resolution states that “All peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory.” U.N. Genera Assembly Resolution 1514 (XV), December 14, 1960. See Robert John Araujo, “Sovereignty, Human Rights and Self-Determination: The Meaning of International Law,” Brigham Young University Conference on the United Nations and the Family, June 2000, p. 14.

3. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

4. However, some scholars do argue the Declaration has become binding international customary law. For an overview of a number of scholars’ statements to this effect, see Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT’L & COMP. L. 287, 323-26 (1995-1996).

5. Professor Mary Ann Glendon, of Harvard Law School, describes the Declaration’s genesis thus: “Early in 1947, with the horrors of two world wars fresh in their memories, a remarkable group of men and women gathered, at the behest of the newly formed United Nations . . . , to draft the first ‘international bill of rights.’ So far as the Great Powers of the day were concerned, the main purpose of the United Nations was to establish and maintain collective security in the years after the war. The human rights project was peripheral, launched as a concession to small countries and in response to the demands made by numerous religious and humanitarian associations that the Allies live up to their wartime rhetoric by providing assurances that the community of nations would never again countenance such massive violations of human dignity. . . . [However,] together with the Nuremberg Principles [of 1946] . . . and the 1948 Geneva Convention, the Universal Declaration of Human Rights became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. The Nuremberg Principles . . . represented a determination to punish the most violent sorts of assaults on human dignity. The Genocide Convention obligated its signers to prevent and punish acts of genocide. . . . The Universal Declaration was more ambitious. Proclaiming that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,’ it aimed at prevention rather than punishment.” MARY ANN GLENDON, A WORLD MADE NEW xv-xvi (Random House: New York, 2001) (emphasis in original).

6. Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 (1948). Available at http://www.un.org/Overview/rights.

7. Declaration art. 2.

8. Declaration art. 3.

9. Eleanor Roosevelt, who played a crucial role in the formation of the Declaration, explained that “the Covenant would be a simpler document in one way. It will have to cover fewer rights [than the Declaration]. But in another way it will be more complicated because the way those rights are to be assured to people throughout the world, under law, must be spelled out, and every nation in ratifying the Covenant—which will have the weight of a treaty—must be prepared to change its domestic laws so that it will be able to live up to its undertakings in the Covenant.” Glendon at 121.

10. International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171.

11. Covenant art. 6.

12. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

13. 542 U.S. 692, 733 (2004).

14. Id. “Thus, Alvarez’ detention claim must be gauged against sources we have long, albeit cautiously, recognized.”

15. Report of the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. No. A/HRC/7/11 (2008).

16. This is implicit in Covenant art. 40-42, 44.

17. The U.N. Committee on the Elimination of Discrimination against Women (CEDAW Committee) includes 23 “experts” on women’s issues. Its mandate is to monitor progress made by signatories in fulfilling treaty obligations. At biannual meetings, members review reports submitted by states the year after signing the treaty and every four years thereafter. See http://www.un.org/womenwatch/daw/cedaw/reports.htm.

18. Report of the United Nations Committee on the Elimination of Discrimination Against Women, 13th Sess., to the General Assembly of the United Nations, 53rd Sess. (1998), “Report on Croatia,” Document #A/53/38, Para. 109.

19. Some countries attached “reservations” to the outcome document to make this clear. For example, Nicaragua’s reservations read: The Government of Nicaragua, pursuant to its Constitution and its laws, and as a signatory of the American Convention on Human Rights, confirms that every person has a right to life, this being a fundamental and inalienable right, and that this right begins from the very moment of conception. We accept the concepts of ‘family planning,’ ‘sexual health,’ ‘reproductive health,’ ‘reproductive rights,’ and ‘sexual rights’ expressing an explicit reservation on these terms and any others when they include ‘abortion’ or ‘termination of pregnancy’ as a component. Abortion and termination of pregnancy can under no circumstances be regarded as a method of regulating fertility or a means of population control. See A/CONF.171/13 Report of the ICPD, available at www.un.org/poin/icpd/conference/offeng/poa.html. Seven other Latin American countries—El Salvador, Honduras, Argentina, Dominican Republic, Ecuador, Guatemala, and Peru—made similar reservations, explaining that abortion was not to be read into the conference statement. Id. These reservations matter, because without unanimity there cannot be a standard of customary international law.

20. Programme of Action of the International Conference on Population and Development, U.N. Doc. A/CONF.171/13 (1994).

21. The author was present at the meeting as a private sector member of the U.S. delegation. Vamos-Goldman’s statement was widely reported at the time. See e.g. LifeSite U.N. Correspondents, Canada Shocks U.N. Delegates, LIFESITENEWS, June 14, 2001, http://www.lifesitenews.com/ldn/2001/june/010614a.html.

22. “United States of America Explanation of Position,” 5/1/2002.

23. Similar victories occurred in other places, such as Doha, where in November 2004 seventy nations agreed to reaffirm the commitments that protect life in the Declaration and the Covenant, without any additional abortion right being added. The Doha Declaration reaffirmed, inter alia, that “the child . . . needs special safeguards and care before as well as after birth” (emphasis added) and that “everyone has the right to life” (emphasis added), calling on governments to “ensure that the inherent dignity of human beings is recognized and protected throughout all stages of life” (emphasis added). Doha Int’l Conference for the Family, Nov. 29-30, 2004, Doha, Qatar, Doha Declaration, U.N. Doc. A/59/592 (Dec. 3, 2004).

24. Entered in the United States Congressional Record (p. E2535 to E2547) on 8 December, 2003.

25. Emphasis added.

26. The Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2002). The suit was dismissed for lack of standing. (The Center for Reproductive Rights was formerly called the Center for Reproductive Law and Policy.)

27. One example of this is the case brought in Colombia by Mónica Roa, Constitutional Court of Colombia, C-355/2006, 10 May 2006, which declared that legislation criminalizing all abortions was unconstitutional.

28. See, e.g., Graham v. Florida, 560 U.S. ___ (2010), No. 08-7412, slip op. at 29-31 (U.S. May 17, 2010) (noting that other nations’ and the international community’s judgments are not “control[ling]” or “dispositive” but “also ‘not irrelevant,’” id. at 29).

29. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953) [hereinafter Convention], available at http://conventions.coe.int/treaty/en/Treaties/Html/005.htm.

30. Convention, art. 3. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31. Id., art. 8. “1. Everyone has the right to respect for his private . . . life. . . . 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

32. Vo v. France, 53924/00 Eur. Ct. H.R. (2004).

33. Ireland’s Constitution, Article 40.3.3. “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

34. A, B, and C v. Ireland, 25579/5 Eur. Ct. H.R., Applicants’ Reply to the Observations of Ireland on the Admissibility and Merits, Dec. 23, 2008, at ¶ 90.

35. Tysiac v. Poland, 5410/03 Eur. Ct. H.R. (2007).

36. The Court did, however, assert that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.”

37. Convention, Art. 35 § 1.“Admissibility criteria The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

38. Many pro-life groups filed amicus briefs in the case to guard against that potential worldwide ripple effect. See A, B, and C v. Ireland, 25579/5 Eur. Ct. H.R., Joint Written Observations of Third Party Interveners, Nov. 14, 2008, available at http://www.aul.org/wp-content/uploads/2010/07/joint-observations.pdf.

39. Lautsi v. Italy, 30814/06 Eur. Ct. H.R. (2009).