Is Abortion A Human Right?

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In July 2014 the Human Rights Committee, the monitoring body of the United Nations’ International Covenant on Civil and Political Rights (1966), made a number of observations regarding the “highly restrictive circumstances” under which an abortion can be obtained in Ireland owing to article 40.3.3° (the Eighth Amendment) of the Irish Constitution. On the grounds that Ireland is a signatory to the Convention the Human Rights Committee recommended that Ireland “revise its legislation on abortion, including its Constitution, to provide for additional exceptions.” The implication here is that the right to abortion is a component of the treaty, and therefore binding on the Irish State. Yet a serious problem arises from the fact that nowhere does the Convention mention anything approximating a right to abortion. What in fact the Irish Constitution states in the Eighth Amendment is:

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.
– Bhunreacht na hÉireann, Article 40.3.3°

Where no treaty, binding on Ireland, makes mention of abortion – let alone abortion as a human right – the stress by the Committee can only be regarded as interpretation of the words of the treaty. Insofar as the treat speaks of the rights of women and the right to health, the Committee has taken the liberty of expanding this meaning to imply a right to abortion. This then poses a significant threat to the sovereignty of Ireland under International Law; either Ireland accept the interpretation as biding and upon this act accordingly or look to the rules, if such exist, of treaty interpretation. A set of rules does exist. According to the Vienna Convention on the Law of Treaties (1969),

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
– Vienna Convention, Article 31.1

What this means, regarding any right to abortion in Ireland or anywhere else, is that only the “ordinary meaning” of the text of the treaty is binding on the state party, and in no ordinary sense is abortion either mentioned or given the status of a human right. There exists, however, another UN treaty to which Ireland is a party; the 1989 Convention on the Rights of the Child which, in its preamble states quote uncategorically,

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.
– Convention on the Rights of the Child, Preamble

Without any doubt there is an ordinary meaning to these words. The “child” – not foetus or mass – requires special care and attention due to its lack of ability to protect itself, and the “child” has the right to this protection by the state and society “before as well as after birth.” Ultimately what we have are two competing human rights claims on Ireland and the Irish Constitution, one – which is a body of soft law (that of interpretation and obiter) – that seeks greater access to abortion, and another – that is binding by treaty and law, and which is in perfect agreement with the right to life of the unborn as articulated in the Irish Constitution – which seeks the protection of the “child” before birth.

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