By: Matthew Ledford
Imagine you are an owner of a small restaurant in a big city, and you are planning to unveil a new cake for your dessert menu. You are so proud of all the additions you’ve made to this recipe – organic butter, cream cheese icing, chocolate drizzle and even sprinkles. Yet, when you give the cake to your staff for a taste-test and see their sour faces (instantly reminding you that you forgot to add sugar to the batter) you realize that a single omission can sometimes be much more noticeable than a variety of additions. This same principle rang true when the United Nations’ Human Rights Committee published its draft commentary on Article 6 of the International Covenant on Civil and Political Rights (ICCPR) this past summer. Missing from the list of members who enjoy Article 6 protection was unborn fetuses. Much like the kitchen staff, pro-life supporters were left with a bad taste in their mouth after the news, but pro-choice advocates celebrated the omission as a step towards respecting female autonomy. Understanding the context and the possible motivations for the Committee’s choice in leaving out this ingredient will necessarily shed some light on the issue.
The Human Rights Committee is one of the “oldest and most respected” of 10 bodies to oversee the efforts of States to implement human rights treaties created by the United Nations. As one of its tasks, the Committee monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR), a treaty created to protect the civil and political rights that “derive from the inherent dignity of the human person.” These rights include equality, due process, free speech, freedom of religion, and the right to vote. Adopted in 1966, the treaty has since been met with wide acceptance as over three quarters of UN member states have become parties to the treaty, including the United States.
In July, the Committee published a draft commentary on Article 6: “on the right to life,” and invited comments on the draft from civil society and UN member states. The resulting draft has sparked yet another controversy in the ever-raging battle between pro-life and pro-choice advocates. While the draft called the right to life the most precious and fundamental right and called for respect for all human life “without distinction of any kind” such as race, color, sex, religion, birth, national origin, political opinion, and age (among others), it seemingly excluded unborn individuals from the Article’s protection.
While not stated directly, the omission was implied by the draft’s support for abortion. The relevant language can be found within section 9 of the Article, and reads as follows:
States parties must provide safe access to abortion to protect the life and health of pregnant women, and in situations in which carrying a pregnancy to term would cause the woman substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or when the fetus suffers from fatal impairment. States parties may not regulate pregnancy or abortion in a manner that runs contrary to their duty to ensure that women do not have to undertake unsafe abortions. [For example, they should not take measures such as criminalizing pregnancies by unmarried women or applying criminal sanctions against women undergoing abortion or against physicians assisting them in doing so, when taking such measures is expected to significantly increase resort to unsafe abortions]. Nor should States parties introduce humiliating or unreasonably burdensome requirements on women seeking to undergo abortion. The duty to protect the lives of women against the health risks associated with unsafe abortions requires States parties to ensure access for women and men, and, in particular, adolescents, to information and education about reproductive options, and to a wide range of contraceptive methods. States parties must also ensure the availability of adequate prenatal and post-abortion health care for pregnant women.
Is Abortion Becoming a Basic Human Right?
One possible reason behind the commentary is the United Nations’ desire to solidify abortion as a human right. For some Americans, such an attempt is seen as an infringement on their political and religious beliefs. As abortion is such a prevalent and controversial topic in this country and around the world , it is frightening for some to even fathom that “the issue of protecting all citizens is not just out of the hands of the Supreme Court – [but] out of the hands of the American people.” However, others find it equally as comforting that the decisions relating to abortions could be out of the hands of dissociated governments and solely into the hands of the mother. Yet, despite these differences of opinion, this may be the direction in which many of the world’s governments are heading.
The current omission coupled with an influential case decided in Peru last year (January 2016), provides support for such an assertion. In 2001, a 17-year-old girl was informed that her unborn fetus was diagnosed with anencephaly, a rare but lethal disease that results in deformation of the infant’s brain, skull, and scalp. Most infants die in the womb or within 55 minutes of birth. Despite the fact that abortion was legal in Peru, the girl’s hospital director declined her request to have an abortion. She was forced to have her baby, who died just four days later. The girl filed a complaint with the United Nations Human Rights Committee, who found that Peru had violated a variety of provisions of the ICCPR. Fifteen years later, Peru was forced to pay reparations, making this the first time the Committee had held a country accountable for not providing access to “safe, legal abortion.”
Despite this decision, some legal scholars claim that this interpretation of the commentary may be “jumping the gun.” One justification for this skepticism is that committees of the United Nations lack the authority to establish such a right. Such decisions are clearly left to the sovereign States to handle with the passage of their own legislation. A second justification is that no UN treaty has been interpreted to outright recognize a right to abortion. Moreover, the San Jose Articles actually explain that there is a presumption in favor of protecting life in the womb.
Yet, even with these arguments in mind, it would be naïve to think that the influence of the United Nation’s provisions could not muster up the strength to bring winds of change to the sails to the governments of the world. It isn’t difficult to find woven “throughout the various sources of customary international law, language implying an international consensus that abortion is a necessary component of fundamental human health that must be provided by States to their citizens.” Whether abortion should be a basic human right goes beyond this piece. Nevertheless, this omission could realistically be interpreted as a means for the United Nations to advocate for abortion as a basic human right.
Are Governments Avoiding or Accepting Responsibility?
Those in the pro-choice corner raise concerns that member states of the UN may be pushing for the omission to escape accountability and curb consequences for failing to follow the guidelines of the ICCPR. It is important to note that this view commonly considers abortion a form of oppression. Previously the ICCPR threatened a nasty bite with sanctions, but seemingly lacked the teeth to execute it. However, as made obvious by the wide acceptance of the treaty and the case in Peru discussed above, it has become more likely that countries will be held accountable for their human rights violations. Therefore, global leaders who on the surface want to publicly parade themselves as champions of human rights by remaining member states to the treaty, but who also do not wish to sacrifice political prowess, must find loopholes in the treaty’s rules.
This line of thinking was illustrated by the government of the small Himalayan Kingdom of Bhutan in the early 1990’s. The Bhutanese government suffered from mounting anti-government unrest. In response, the government implemented a nationality law that resulted in the expulsion of thousands (many of which were Nepalese exiles) calling for democratic reform. In order to stay in line with the ICCPR, government officials made it known that it would not use lethal force or extrajudicial killings to rid the kingdom of protestors. Meanwhile, the period saw a huge increase in forced disappearances – hundreds in the resistance movement were never heard from or seen again. The Bhutanese simply made a strategic shift in its method of repression from extrajudicial killings to forced disappearances to avoid violations of the ICCPR, yet keep political control over the region.
Here, an argument could be made that world governments are doing something similar. UN member states who are advocating for the omission of the protection of the unborn are seemingly trying to protect themselves from responsibility for seemingly robbing so many of the right to live, yet unlike the Bhutanese government, the current member states are not strategically switching the methods of repression to abide with the rules, but are employing the same method and bluntly advocating for it to be stricken from the rules. This argument would support the assertion that whether abortion is fueling campaigns of pro-choice politicians through the flow of interest group funds, or it is being used to eliminate a generation of a leader’s potential opposition , it is sometimes used as a means of maintaining political control.
The opposite side to this argument of course, is that abortion is not a form of repression at all, but a form of freedom. Looking through the pro-choice lens presents the omission in an optimistic view in which world governments are actually refusing to continue to side-step the issue, and are finally taking it head on to protect and preserve the rights, privacy, and autonomy of women. Contrary to popular belief, very few abortions are conducted as a result of rape, incest or the health of the mother. Most abortions take place because external conditions do not feel right for the mother or for the fetus. Reasons like poverty, drug abuse, abusive relationships, and public humiliation to name a few. It seems that this omission may suggest that world governments no longer wish to sit in judgment of the woman’s decision, but wish to simply allow her to make her own choice and to provide her with resources and support regardless of what that choice may be. It is possible that the UN member states are sending the sentiment that “supporting women who find themselves in a dire crisis because of a pregnancy, or indeed for any other cause, is a duty of all people of goodwill regardless of their opinions on abortion.”
In attempting to settle the question of whether this omission is seen as governments avoiding accountability or accepting it, the answer seems to be based on a person’s perception of abortion. While there is no clear right or wrong selection, one’s opinions will certainly shift the scales to one side or to the other.
It is clear that the United Nation’s Human Rights Committees’ omission of unborn individuals from Article 6 has left much room for speculation as to its purpose. Depending on the reasoning behind the draft commentary, the omission potentially results in major implications: abortion may be developing into a recognized human right; hungry politicians are attempting to escape the consequences of their actions; or governmental interests are being curbed to better support the autonomy of women. Regardless of motivations only time will tell if this “cake” ultimately makes the menu.
 The “cake” analogy is not intended to trivialize or minimalize the importance of the abortion discussion or that of any human rights issue. It is simply used as a basic illustration to engage the reader.
Stefano Gennarini, UN Pushes for International Law to make Abortion a Human Right, Life Site (Sept. 21, 2017), https://www.lifesitenews.com/opinion/un-pushes-for-international-law-to-make-abortion-a-human-right.
 Mititelu & Radu, International Covenant on Civil and Political Rights, 3 J. Danubian Stud. & Res. 47, 47 (2013).
 Susan Deller Ross, Women’s Human Rights: The International and Comparative Law Casebook, 91-92 (2013).
 Mititelu & Radu, supra note 7, at 47.
 See The United Nations International Covenant on Civil and Political Rights: Does it Make a Difference in Human Rights Behavior?, 36 J. Peace Research 95, 97 (1999).
 Gennarini, supra note 2.
 International Covenant on Civil and Political Rights, Art. 6 (General Comment No. 36, Revised Draft) § 2, Human Rights Committee (2017).
 Id. at § 64.
 International Covenant on Civil and Political Rights, Art. 6 (General Comment No. 36, Revised Draft) § 9, Human Rights Committee (2017).
 Gennarini, supra note 2.
 Christopher Kaczor, The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice, 189 (2d. 2014) (explaining that in the United States alone between 1.2 and 1.6 million abortions take place each year and approximately 46 million worldwide).
 See generally Gregory Claeys, Abortion and Political Thought in Encyclopedia of Modern Political Thought 2 (2013) (“The pro-choice position emphasizes a woman’s right to choose what occurs in her own body whenever possible.”).
 David Grimes, United Nations Committee Affirms Abortion as a Human Right, The Blog (Jan. 27,2017) https://www.huffingtonpost.com/david-a-grimes/united-nations-committee-affirms-abortion-as-a-human-right_b_9020806.html.
 Grimes, supra note 20.
 Gennarini, supra note 2.
 William L. Saunders, The San Jose Articles and an International Right to Abortion, Ava Maria Int’l. L. J. 1, 1 (2015).
 See generally Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does it Make a Difference in Human Rights Behavior?, 36 J. Peace Res. 95, 113 (1999) (“[O]verall human rights protection among the treaty’s parties is no better than that in non-party states, all things being equal.”).
 Caroline L. Payne & M. Rodwan Abouharb, The International Covenant on Civil and Political Rights and the Strategic Shift to Forced Disappearance, 15 J. Hum. Rts. 163, 163 (2016).
 Id. at 164.
 Id. at 163.
 Id. at 164.
 See Payne & Abouhard, supra note 34, at 165 (“Governments also disappear children, either through their murder or adoption, to prevent the future growth on an opposition.”).
 See Claeys, supra note 19, at 2.
 Kaczor, supra note 17, at 190.