CYIL vol. 9 (2018)

PAVEL CABAN CYIL 9 ȍ2018Ȏ regional treaty explicitly recognize women’s right to abortion for socio-economic reasons or on request” and that “to date no [treaty monitoring body] … has explicitly recognized women‘s right to abortion on request or for economic or social reasons, nor have they explicitly called for the legalization of abortion on those grounds”. 30 On the other hand, the same authors allege that “[t]he extent to which women‘s right to abortion is currently protected under human rights law generally hinges on whether a woman’s life or health is at risk, the pregnancy resulted from rape or incest or there is risk of foetal impairment”. 31 In this connection, it is to be noted that the only legally binding human rights instrument that explicitly addresses abortion as a human right is the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo, 11 July 2003). 32 Its article Article 14, para. 2 (c) provides that “States Parties shall take all appropriate measures to … protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”. Thus, could we infer from these and other sources that international law (relevant conventions, other than Maputo Protocol, and/or general international law) implicitly contains a right to abortion in the above narrowly defined cases mentioned in the draft General Comment and Maputo Protocol? This proposition is far from being unquestionable. According to other authors, it “remains difficult to claim that even these situations [the author writes about the cases of the threat to pregnant woman‘s life and health, and pregnancy resulting from rape or incest] rise to the level of a right under international law”. 33 Further, one clarification is needed: except for the above quoted Maputo Protocol, which expressly mentions access to abortion, we could not speak, as far as relevant universal and regional conventions are concerned, about the “right to abortion” as such – these conventions do not even mention the word “abortion” (let alone “access to” or “right to” abortion in any context) and, thus, such a right would have to be “read into” other more general rights, namely into the right to the protection of private life, or possibly other relevant rights provided for in relevant instruments. However, if we assume, for the sake of the argument, that such narrowly defined “right to abortion” could be “read into” relevant provisions of ICCPR and other human rights law instruments or “into” general international law, and, at the same time, that there does not exist any right to abortion outside the above defined exceptional cases , i. e. that there is no right to abortion for socio-economic reasons and abortion on request, then a question should be asked: Since, as we saw above, abortion affects other rights and interests guaranteed by relevant international law instruments, namely those of unborn child, would it mean that abortion for socio-economic reasons and abortion on request is illegal under international law (even though it represents vast majority of all abortions performed), “since the curtailment of those [other] rights and interests by abortion performed for socio-economic reasons and 30 Zampas, Gher, op. cit. sub 10, pp. 255 and 287. For the same conclusion from the opposite, “pro-life” camp, see e.g. PUPPINCK, Grégor. Abortion in European Law: Human Rights, Social Rights and the New Cultural Trend, Ave Maria Law Journal, 2015, Spring, p. 34. 31 Zampas, Gher, op. cit. sub 10, p. 255. 32 As of now, the Protocol has been ratified by 36 African states; see http://www.achpr.org/instruments/women- protocol/ratification/ (visited on 6 June 2018). 33 Tom Venzor, op. cit. sub 20, pp. 1133 and 1151.

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