On behalf of the Editorial Board, it is my distinct pleasure to officially present you the first issue of the HHS ILSA Law Journal for 2023.
First launched in 2016 under the auspices of the Hague Chapter of the International Law Students Association (HHS ILSA), the Journal invites students and alumni of the International and European Law Programme at The Hague University of Applied Sciences to respond to our biannual Call for Submissions. Our aim is to promote scholarly reflection on current and emerging topics of international and European law. By encouraging the critical study of contemporary developments, we strive to give voice to an array of perspectives in identifying impending challenges, as well as offering potential solutions to them.
This issue of the Journal focuses on the topic of Charting New Frontiers in International & European Law. The emergence of technological innovations, realization of scientific breakthroughs, perpetuation of international conflicts, and transformation of social norms are reshaping and redefining the boundaries of international law. By publishing insightful and comprehensive articles, we aim to shed light on these recent developments and contribute to the eminent discussion on such vital issues.
We are pleased to present you with a great selection of contributions that illustrates the diversity and pertinence of the issues explored in this publication. We hope that you enjoy this issue and find its contents curious, stimulating, and thought-provoking.
On behalf of the editorial team, I wish you a pleasant read!
Ms Romina Ruszin
2022-2023 Editor in Chief of the HHS ILSA Law Journal
THE GUEST EDITORS
Ms Leyla Gayibova
Ms Leyla Gayibova is a Lecturer in Law and Technology in the International and European Law Programme at The Hague University of Applied Sciences and a Thesis Supervisor in the Politics, Psychology, Law and Economics Programme at the University of Amsterdam. Ms Gayibova holds an LL.B. in International and European Law from the University of Sheffield and an LL.M in International Law (specialisation: human rights) from the University of Amsterdam. At THUAS, she teaches in two interdisciplinary minors: law and technology, and cybersecurity. Her research interests lie in AI regulation and data protection law, with a particular focus on the legal, ethical, and societal implications of the use of automated decisionmaking systems in the justice sector, such as the criminal justice system and asylum applications.
Ms Linda Louis
Ms Linda Beatrice Louis is a Lecturer in Law and Technology with a background in international law, human rights, and their interaction with technology. Completing her LL.M. in 2014, she graduated magna cum laude from the Geneva Academy of International Humanitarian Law and Human Rights. She held various legal and policy roles at the International Committee of the Red Cross, the Internet Society, International Commission of Jurists, and the International Criminal Court, specializing in legal advice, human rights reporting, and education and currently affiliated as an Expert Consultant with the International Communities Organization.
Having worked as an educator for public authorities in human rights norms, Ms Louis decided to explore the potential of behavioural technology as a tool for achieving legal and normative compliance. In her ongoing doctoral research, she investigates the use of persuasive technology and nudging to improve policing. Drawing from this inter-disciplinary approach combining behavioural and socio-psychological approaches to legal compliance, she also collaborates with startups and social impact enterprises, advising on the design, accessibility, and construction of regulatory and accountability technology.
Ms Nadia Rusinova
Ms Nadia Rusinova is a specialized attorney-at-law with more than 20 years of experience, university lecturer, researcher, mediator and judicial trainer, dealing with EU family law, children’s rights and private international law in family matters. Combining research, academic work,andpracticalexperience in litigating complexdomestic cross-borderproceedings in these areas, Ms Rusinova possesses extensive knowledge of the functioning and the challenges in the contemporary family justice and child protection systems Europe-wide.
Dr Artemis Malliaropoulou
Dr Artemis P Malliaropoulou is a Lecturer in the International and European Law Programme at The Hague University of Applied Sciences. She holds an LL.B. (University of Athens), an LL.M. (London School of Economics), and a Ph.D. in law (University of Athens). She was a recognised student at the Law Faculty of the University of Oxford under the supervision of Professor Paul Craig and a visiting scholar at Columbia Law School under the sponsorship of Professor Anu Bradford. She has been a qualified solicitor in Greece since 2010 and her working experience includes placements at the United Nations Office of Legal Affairs (New York), the Council of the EU – Legal Service (Brussels), the International Criminal Court (Hague), the Unidroit Institute for the Unification of Private Law (Rome), the British Institute for International and Comparative Law (London), Wilmer Cutler Pickering Hale & Dorr LLP (London), Shearman & Sterling LLP (Paris), Allen & Overy LLP (Paris). She is a member of the Chartered Institute of Arbitrators, an of counsel in the Athens Mediation & Arbitration Organisation, a Young-OGEMID rapporteur, an Arbitrator Intelligence ambassador, a Young ITA mentorship scheme advisor, and she is included in the GAR Who’s Who Legal: Arbitration - Future Leaders – Non-Partners – Greece- list (2019-2022). Her research interests cover the broad spectrum of international arbitration, investment law, EU law and the interrelation between international public and private law.
The topics of this issue of the ILSA journal highlight the importance of balancing conflicting interests of constitutional nature in different contexts and the necessity to use “existing” tools to solve “new” problems, while they constitute the best testament of the new generation of lawyers’ genuine commitment to the application of international and European law in concreto.
ACKNOWLEDGMENTS
The ILSA Law Journal would first like to thank the authors who shared their outstanding contributions in this issue. We are incredibly grateful for the unwavering trust, patience, and enthusiasm they showed towards the realization of this publication.
We would also like to take this opportunity to express our appreciation to the Guest Editors: Ms Leyla Gayibova, Ms Linda Louis, Ms Nadia Rusinova, and Dr Artemis Malliaropoulou. We are deeply thankful for the unparalleled support and guidance they have provided us in conducting the selection and editorial process.
TheJournalwouldalsolike tothankthe2022-2023ILSAManagementBoard forits continuous support and encouragement. We would like to extend our gratitude to President and Treasurer Ms Emily Warchala, Vice-President and Head of Social Events Mr Ahmed Darwish, Head of Main Events Mx Maria Kostro, Head of Marketing Ms Emma Pettersson, and Editor in Chief of the ILSA Journal Ms Romina Ruszin.
Finally, we would like to thank the editorial team for their diligence and determination. The Journal would like to express its most sincere appreciation for the participation of its members including Secretary Ms Alice Frincu, Managing Editor Ms Grace O’Halloran and Editors Mr Stanislaw Baran, Ms Alessandra Cao, Ms Letizia Ferhati, Mr Tikhon Filonov, Ms Jael Kaufmann,MrEdvardKozusnik, MsOlesiaLiashevich,MsAshleighMulder, MrSamiNouhra, Ms Victoria Peña, and Ms Vedika Sajnani.
The selection process was solely conducted by the Guest Editors so as to avoid any bias and to ensure that the selection was based on merit.
The Right to Abortion and its Potential Codification in
International and Regional Human Rights Law
By Jan Jaroščák
Abstract
This article aims to analyse the concept of the ‘right to abortion’, its current state, and the progress towards its codification within international and regional human rights law. The article begins by defining abortion as a fundamental element of women’s reproductive health and autonomy. It then presents an overview of the various national abortion laws around the world before providing historical context of the existence of abortion as a human right, beginning in 1968. The underlying obstacle of codifying the right to abortion internationally is revealed through an exploration of the perennial challenge of striking a balance between state sovereignty and human rights The bulk of the article provides an analysis of the existing legal framework which explicitly and implicitly safeguards the right to abortion on an international and regional level Finally, statistical evidence substantiating the movement for codifying abortion as a universal human right is provided, before concluding with an overview of the recent attempts of organisations, committees, and courts to do precisely that.
LL.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.
I. Introduction
Abortion is a highly polarising subject in today’s society. Just last year, the Supreme Court of the United States (SCOTUS) overturned the 1973 landmark case Roe v. Wade, 1 which for nearly 50 years, guaranteed a constitutional right to abortion in the US A spew of both outrage and joy across the international community was sparked by the annulment in 2022, with many questioning the repercussions the decision may have on women’s rights across the globe Today, the issue is becoming ever-increasingly political – a perpetual tug of war between the conservative belief of the ‘right to life’ from conception and the liberal principle of protecting women’spersonal autonomy However,despiteits political prominence, the pro-life/pro-choice debate ultimately remains a question of legality.
Over the past 25 years, there has been monumental progress in terms of liberalisation of abortion laws on the national level, with nearly 50 countries across the world loosening their policies in this period.2 Be that as it may, many would argue access to abortion is a fundamental human right that should not only be protected domestically, but also universally through codification in international law in order to promote and protect women’s liberty, equality, and autonomy 3
Currently,therearenointernational treatiesthatexplicitly address therightto abortion per se, however, some do allude to its legality through other human rights. According to United Nations (UN) mandate-holders – an independent body of human rights experts appointed by the UN Human Rights Council – access to abortion is crucial in protecting the “right to health, life, privacy, equality and non-discrimination, and freedom from torture and cruel, inhuman, and degrading treatment” . 4 This renders anti-abortion laws, such as the precedent set by the Dobbs v. Jackson Women’s Health Organization (2022) SCOTUS decision,5 in potential violation of numerous international human rights treaties, whether directly or indirectly Given the unequivocal data on the detrimental effects of restrictive abortion laws, international organisations, committees, and courts are leading a movement towards safeguarding what is, by many, considered a fundamental right of a woman in the 21st century.
1 Roe v Wade 410 US 113, 163–64 (1973).
2 ‘The World’s Abortion Laws’ (Center for Reproductive Rights) <https://reproductiverights.org/maps/worldsabortion-laws/> accessed 20 February 2023.
3 ibid.
4 ‘International Human Rights and Abortion: Spotlight on Dobbs v. Jackson Women’s Health’ (Center for Reproductive Rights, 24 November 2021) <https://reproductiverights.org/supreme-court-case-mississippiabortion-ban-international-human-rights/> accessed 20 February 2023.
5 Dobbs v Jackson Women's Health Organization 597 US 113, ___ (2022).
II. Background
Abortion is the “intentional ending of a pregnancy”,6 either by a health care provider or selfinduced. Recently, the procedure has become so common that one-quarter of all pregnancies end in some form of abortion 7 While many abortions are safe, performed under medically viable conditions and within a legal framework that safeguards the procedure, around 45 per cent of all abortions remain unsafe 8 In order for an abortion to be considered ‘safe’, the World Health Organization (WHO) argues it must be ‘comprehensive’. 9 This encompasses a variety of factors in three stages: the provision of information before, a safe environment during, and post-abortion care after the process.10 Contrarily, an ‘unsafe’ abortion is defined as a terminated pregnancy executed “either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards”.11 The WHO, along with human rights NGOs such as Amnesty International, adamantly maintains that progressive law and policy are the essential components to decrease the number of unsafe abortions and therefore prevent the attributable deaths and morbidities 12
Within this article, the ‘right to abortion’ is defined as a concept that encapsulates the access to safe and legal termination of pregnancy as a fundamental human right, codified in international law. To date, no such right is directly acknowledged within the international legal framework.
Abortion laws exist on a spectrum of stringency ranging from extensive decriminalisation to absolute prohibition under all circumstances. According to the UN’s 2017 edition of World Population Policies, 54 per cent of countries have legalised induced abortions with varying gestational limits, typically around 12 weeks.13 European countries tend allow even more
6 ‘Abortion’ (Cambridge Dictionary) <https://dictionary.cambridge.org/dictionary/english/abortion> accessed 20 February 2023.
7 ‘Key Facts on Abortion’ (Amnesty International) <www.amnesty.org/en/what-we-do/sexual-andreproductive-rights/abortion-facts/> accessed 20 February 2023.
8 ‘Abortion’ (World Health Organization, 25 November 2021) <www.who.int/news-room/factsheets/detail/abortion> accessed 20 February 2023.
9 ibid.
10 ibid.
11 WHO (Department of Reproductive Health and Research including the UNDP-UNFPA-UNICEFWHO-World Bank Special Programme of Research, Development and Research Training in Human Reproduction) ‘HRP Annual Report 2017’ (2018) WHO/RHR/HRP/18.09.
12 ‘Abortion’ (n 6); ‘Access to Abortion is a Human Right’ (Amnesty International) <https://www.amnestyusa.org/abortionrights/> accessed 20 February 2023.
13 The DepartmentofEconomic and SocialAffairs ofthe United Nations Secretariat(Population Division), ‘World Population Policies 2017: Abortion Laws and Policies’ (2020) ST/ESA/SER.A/447, 4
generous limits,14 with the Netherlands being the most progressive, having an ‘unlimited’ gestational limit.15 Other countries allow abortion subject to certain legal provisions including economic and social grounds (37 per cent), in cases of foetal impairment (61 per cent), in cases of rape or incest (61 per cent), and to preserve mental (61 per cent) and physical health (72 per cent). Finally, the UN claims 98 per cent of countries permit abortion to save a pregnant woman’s life.16 The Center for Reproductive Rights, a global legal advocacy organisation, however, suggests that the UN’s numbers are perhaps too optimistic, classifying 24 countries as having a total prohibition of abortion under all circumstances.17 Indeed, in countries such as El Salvador, women who have gone through abortion may be found guilty of ‘aggravated homicide’, even in cases of miscarriage.18 That said, there has been undoubtable progress over the past several decades in terms of the liberalisation of abortion laws, with countries across the world making transformative changes towards favouring women’s reproductive autonomy.19
III.
The historical context of the right to abortion in international law
A. 1968 International Conference on Human Rights (Tehran)
The first international instrument to ever allude to abortion as a human right was the 1968 Final Act of the International Conference on Human Rights in Tehran. The act, adopted by the UN General Assembly (UNGA), proclaimed that “parents have a basic human right to determine freely and responsibly the number and the spacing of their children”. 20 This statement could be construed as the earliest reference to a ‘right to abortion’ in international law.
14 14 weeks – Belgium, France, Germany, Luxembourg, Romania, Spain;18 weeks – Sweden;22 weeks – Iceland; See ‘The World’s Abortion Laws Map’ (Center for Reproductive Rights) <https://reproductiverights.org/wpcontent/uploads/2019/05/WALM_2021update_V1-1.pdf> accessed 20 February 2023.
15 There is no set legal gestational limit in the Netherlands, however, the generally accepted limit is 24 weeks. This makes the Netherlands the most liberal country in the world in this regard; See ‘The World’s Abortion Laws Map’ (n 14); Also see ‘Abortion’ (Government of the Netherlands) <www.government.nl/topics/abortion#:~:text=Women%20in%20the%20Netherlands%20may,24th%20week%2 0of%20the%20pregnancy> accessed 23 March 2023.
16 ‘World Population Policies 2017’ (n 13) 3
17 The countries listed as ‘Category I. Prohibited Altogether’ by the Center for Reproductive Rights are Andorra, Aruba, Congo (Brazzaville), Curaçao, Dominican Republic, Egypt, El Salvador, Haiti, Honduras, Iraq, Jamaica, Laos, Madagascar, Malta, Mauritania, Nicaragua, Palau, Philippines, San Marino, Senegal, Sierra Leone, Suriname, Tonga, West Bank & Gaza Strip; See ‘The World’s Abortion Laws Map’ (n 14).
18 Eloise Barry ‘The State of Abortion Rights Around the World’ (TIME, 3 May 2022) <https://time.com/6173229/countries-abortion-illegal-restrictions/> accessed 20 February 2023.
19 ‘The World’s Abortion Laws’ (n 2).
20 UNGA ‘Final Act of the International Conference on Human Rights in Tehran’ UN Doc A/C0NF.3 2/41 (1968), para 16
B. 1994 International Conference on Population and Development (Cairo)
Arguably the most important international development in the field of abortion came in the 1994 International Conference on Population and Development (ICPD), held in Cairo.21 The ICPD was the first of its kind to address ‘reproductive health’ Defined as “the capability to reproduce and the freedom to decide if, when, and how often to do so” , 22 reproductive health was essentially established as a basic human right in Cairo.23 The conference was a true symbol of the growing momentum of the crusade during the turn of the century towards “global recognition of abortion as a human right” . 24 Although the Cairo document did not “explicitly call for legalisation of abortion worldwide,” it confirmed that “where abortion is legal, the procedure should be accessible and safe” . 25 The ICPD also looked towards the future, aiming to achieve universal access to reproductive health services by the year 2015, resulting in a Programme of Action which identified reproductive rights as one of the pillars of sustainable development. 26 It must be noted, however, that a number of countries, including Sudan, Nicaragua, Malta, and Qatar, held reservations to the ICPD specifically regarding the mention of abortion in the document. These countries stressed that they aim to promote women’s reproductive health but have no intention of legalising induced abortion 27
C. 1995 Fourth World UN Conference on Women (Beijing)
A year later, in 1995, the Fourth World UN Conference on Women was held in Beijing. Reiterating the paradigm shift of the ICPD, the Beijing Declaration and Platform for Action declared unsafe abortion as a grave public health concern, with potentially devastating consequences for women’s health 28 Despite the fact that both the Cairo and Beijing documents are non-binding, they “touch on women’s right to abortion, and thus provide additional support
21 United Nations Population Fund (UNFPA) ‘Programme of Action of the International Conference on Population Development’ (1994) A/CONF.171/13 (Programme of Action)
22 ibid, chapter VII para 2.
23 ibid, chapter VII para 16; Elin Malmsköld, The Status of Abortion in Public International Law and its Effect on Domestic Legislation (Uppsala Universitet 2018) 5 Other elements such as prenatal care, sexual health, and the prevention of the propagation of sexually transmitted diseases, were also referenced during the ICPD, See Malmsköld (n 23) 3.
24 Piero Tozzi, International Law and the Right to Abortion (Legal Studies Series – No. 1, International Organizations Law Group 2010) 3.
25 Christina Zampas and Jamie M Gher, Abortion as a Human Right – International and Regional Standards (Oxford University Press 2008) 252
26 ‘Programme of Action of the International Conference on Population Development’ (United Nations Population Fund 2014) p 61-62 <https://www.unfpa.org/sites/default/files/pubpdf/programme_of_action_Web%20ENGLISH.pdf> accessed 7 May 2023.
27 ibid, 267-268, 270, 273.
28 UNGA ‘Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women’ (1995), A/CONF.177/20 (Beijing Declaration), para 97
for the notion that women’s reproductive rights are human rights” 29 On the other hand, the Beijing Declaration hindered universal recognition of abortion by asserting that any changes in a country’s abortion law “can only be determined at the national or local level according to the national legislative process” 30 This presents the perennial challenge of balancing universal human rights and the fundamental international law principle of state sovereignty, as proclaimed in the UN Charter.31
IV. The challenge of balancing human rights and state sovereignty
As a paramount rule of international law, states exist as sovereign entities who are under no obligation to accept external authority 32 This principle was first established by the Permanent Court of International Justice (PCIJ) in The Case of the S.S. Lotus In the case, the Court affirmed that a state may exercise jurisdiction within its territory in any way it wishes as long as it does not infringe explicit prohibitions set by international law.33 This notion is reflected in Article 2(7) of the UN Charter which grants sovereign states jurisdiction over domestic affairs without any external interference 34 However, state sovereignty is not an absolute concept In fact, states are bound and limited by their international obligations, and in particular, their human rights obligations. These may be in the form of consent-based treaty obligations (pacta sunt servanda), automatic customary international law, or peremptory just cogens norms.35 Human rights are said to be universal and inalienable.36 If regarded so, this would challenge the classic Westphalian concept of state sovereignty as human rights would, in certain instances, take precedence over the right to exercise domestic jurisdiction without interference. The ‘Westphalian State System’ refers to the idea arising from the Treaty of Westphalia in 1648 of a separation of the domestic and international spheres, granting states ultimate sovereignty.37 With globalisation and international interdependency becoming increasingly more prominent,
29 Tozzi (n 24) 3.
30 Beijing Declaration (n 28) para 106(k).
31 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XV (UN Charter) art 2(7).
32 Malmsköld (n 23) 11.
33 The Case of the S.S. Lotus (France v Turkey) [1927] PCIJ Rep Series A No 10
34 UN Charter (n 31) art 2(7).
35 The bindingness of these sources of international law provided in Article 38 of the ICJ Statute and Article 53 of the VCLT; See Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 15 UNCIO 355 (ICJ Statute) art 38; Also see Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.
36 ‘Human Rights Principles’ (UNFPA, 2005) <www.unfpa.org/resources/human-rightsprinciples#:~:text=Universality%20and%20Inalienability:%20Human%20rights,equal%20in%20dignity%20and %20rights.%E2%80%9D> 22 February 2023.
37 ‘Westphalian State System’ (Oxford Reference) <www.oxfordreference.com/display/10.1093/oi/authority.20110803121924198> accessed 20 March 2023.
many choose to regard states as “being subject to a higher normative order”.38 Accordingly, “they cannot be individually sovereign in the absolute sense, […] the only alternative is one that attributes sovereignty to the general will”39 – the will of the international community. Once ratified (in the case of treaties) or accepted by consensus (customary international law and jus cogens), international human rights law takes a status of higher authority over the individual states, and thus operates as a supranational system of law complying with the sovereign will of the international community rather than the individual states themselves.40 One might argue, however, that the right to abortion is not a human right recognised by international law at all, and, therefore, states are free to implement abortion laws domestically as they please.
The distinction between the private and public spheres and the respective applicability of international law lies at the heart of the abortion debate 41 Traditionally, what is considered a public matter is regulated by international law, while private matters are governed by domestic law, owing to sovereignty.42 That is because the public sphere is traditionally seen “as politics, law, economics or at the workplace in general, while the private sphere [is classified] as domestic work, childcare, or taking care of the household” . 43 Human rights law, in particular, has had a predominantly public focus and has generally excluded the abuses committed at the private level.44 Consequently, direct intervention of international law in domestic issues such as family life has been regarded as ‘inappropriate’ throughout history.45 This is especially relevant to the fundamental interests of women’s well-being which “have traditionally been conceptualised as ‘private issues’, outside the purview of international human rights law”. 46
On the one hand, categorising abortion within the public sphere, legalised by international and regional human rights law, would protect women’s reproductive autonomy since states would no longer have the ability to prohibit or criminalise the procedure within national legislation. Restrictive abortion laws are proven to result in higher numbers of unsafe abortions,
38 John Charvet, ‘The Idea of State Sovereignty and the Right of Humanitarian Intervention’ (1997) 18 International Political Science Review 39, 45.
39 ibid.
40 In the same way that in a single state, it is the collective will of its people that grounds the authority of its constitutional order, it can be said that the collective states ground the authority of the international legal order; ibid, 46.
41 Malmsköld (n 23) 12.
42 Ivana Radačić, ‘Human Rights of Women and the Public/Private Divide in International Human Rights Law’ (2007) 3 Croatian Yearbook of European Law and Policy 450, 450-451.
43 ibid.
44 Christine Chinkin, ‘A Critique of the Public/Private Distinction’ (1999) 10 European Journal of International Law 387, 389.
45 Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) The American Journal of International Law 613, 627.
46 Radačić (n 42) 443.
maternal morbidity, and mortality
47 By regarding abortion as a public matter, these detrimental effects would appreciably dwindle. On the other hand, placing abortion in the private sphere may indeed benefit some women as certain national laws provide significantly more generous reproductive rights than those that would have to be compromised on within an international context. For example, Gabriel Wikström, the former Minister of Public Health in Sweden, stated that he favoured the classification of abortion as a domestic affair since having to compromise with more conservative states, like Poland, would jeopardise the comprehensive reproductive rights Swedish women currently enjoy.48
Recently,however, the theory ofthepublic/privatedichotomyhasbecomeheavily criticised In large, detractors argue that since “private conduct is not in principle attributable to the state”,49 the distinction “allows government[s] to clean [their] hands of any responsibility for the state of the ‘private’ world”.50 Additionally, given that there are no universal definitions of ‘public’ and‘private’ matters,thedichotomy may –anddoes–vary significantlystateto state 51 The blurry line between the two spheres then prevents any semblance of consistency in the regulation of laws around the world.52
Perhaps the fiercest critique of the theory has come from the feminist position, asserting that the arbitrary distinction between what is ‘public’ and what is ‘private’ actively contributes to the systemic subordination of women. 53 In her paper Human Rights of Women and the Public/Private Divide in International Human Rights Law, Ivana Radačić contends that international human rights law must be re-conceptualised in order to fully appreciate women’s experiences and, therefore, become ‘truly universal’.54 That is, the gendered nature of the public/private divide must be transcended in a way that challenges discrimination against women while protecting their self-determination and personal development on all levels.55 Feminist scholar Christine Chinkin also notes that “the representation of the public world as superior to the private, and the traditional location of women within the latter, renders them
47 Malmsköld (n 23) 22.
48 ibid, 21-22.
49 Rosalyn Higgins, Problems andProcess: InternationalLaw and How We Use It (Oxford University Press 1994) 153; See Chinkin (n 44) 387-389.
50 Susan B Boyd, Challenging the Public/Private Divide: An Overview (University of Toronto Press 1997) 1.
51 Brian Gran and DanielBéland, ‘Conclusion:Revisiting the Public-Private Dichotomy’ineds Publicand Private Social Policy (Palgrave Macmillan 2008) 269.
52 Aaron Xavier Fellmeth, ‘Feminism and International Law: Theory, Methodology, and Substantive Reform’ (2000) HumanRights Quarterly 658, 670-671.
53 Chinkin (n 44) 389.
54 Radačić (n 42) 444.
55 ibid.
largely invisible in the public life” 56 Given the considerable change in attitudes towards a woman’s role in society since the theory was devised, decades ago, its prominence within international human rights law seems rather outdated.57 This argument is supported by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) –the primary treaty on women’s rights. The CEDAW fundamentally contests the polarity of the public and private worlds by “pushing the human rights framework into the private sphere”.58 In fact, the CEDAW “challenges the hierarchal generational paradigm in broader human right treaties in order to adapt human rights to women’s diverse realities” 59 As a result, the idea of the private sphere as a matter entirely regulated by the state has started to abate, with scholars and legislators beginning to condemn human rights violations, even if traditionally considered private matters of the state Such a shift in mindset could pave the way for a universal right to abortion – a classically private affair. That said, the CEDAW remains the most reserved (80 declarations and reservations) and “possibly the most political universal human right convention” in the world, 60 with abortion an issue too contentious to be unanimously agreed upon.
V. Direct right to abortion in international law today
A. International legal framework
As of 2023, no international convention directly recognises a ‘right to abortion’ or any synonymous conception Historically, international organisations have taken a neutral stance on the issue of abortion, allowing states to implement domestic law upon their own prerogative.61 This has bred considerable discrepancies among national abortion laws due to the vastly distinct religious, political, and economic factors of each nation.62 One might argue, however, that there exists a right to freedom from the criminalisation of abortion. This is substantiated by the various treaties and case law discussed later which provide that restrictive abortion laws may be considered a violation of other human rights, notably the right to life, privacy, freedom from torture and other ill-treatment, equality, and health
56 Chinkin (n 44) 389.
57 Malmsköld (n 23) 22.
58 ibid, 15.
59 Chenna Reddy, The Human Rights of Women (Raj Publication 2010) 456; Malmsköld (n 23) 14
60 Malmsköld (n 23) 15.
61 UN Charter (n 31) art 2(7).
62 Malmsköld (n 23) 7.
B. Regional legal framework
Alongside international human rights law, there are several regional instruments that tackle the issue of the right to abortion. Significantly, the 2003 Maputo Protocol is the only treaty to grant a direct right to abortion in any supranational law.63
1. European Convention of Human Rights (ECHR)
The ECHR does not expressly address the issue of abortion; however, the European Court of Human Rights (ECtHR) has handled a number of cases regarding the matter. The following case law has been selected to highlight the ECtHR’s major decisions regarding the right to abortion over time. In Paton v United Kingdom (1980), the European Commission of Human Rights (ECommHR) – a Council of Europe body – ruled that the term ‘everyone’ in Article 2, regarding the right to life, does not include foetuses.64 The ECommHR confirmed that a “foetus’s potential right to life [does] not outweigh the interests of the pregnant woman” 65 The Court has since repeatedly refused to extend the right to life to foetuses, most recently in Vo v France (2004). In this case, the Court reaffirmed that an unborn child is “not regarded as a ‘person’ directly protected by Article 2 of the Convention”, 66 and if a foetus does have a ‘righttolife’,“itisimplicitlylimitedbythe mother’srightsand interests” 67 However,theCourt would not take a definitive stance, noting that there is “no European consensus on the scientific and legal definition of the beginning of life”. 68 In addition, the ECtHR has continually defended liberal permissive abortion laws in R.H. v Norway (1992), Boso v Italy (2002),69 and A, B, and C v Ireland (2010) 70 In the latter, the Court stated that while states enjoy a ‘margin of appreciation’ in regard to abortion laws, it is not unlimited. It went on to say that the regulation of abortion rights is not solely a matter for the Contracting Parties and that an unconditional prohibition of abortion without exception could not be justified solely on the basis of a foetus’s unconditional right to life.71 In conclusion, the ECtHR has tended to rule favourably towards
63 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) (Maputo Protocol).
64 Paton v United Kingdom (X v United Kingdom) [1980] 19 DR 244; [1981] 3 EHRR 48, paras 7,9
65 Zampas and Gher (n 25) 264
66 Vo v France App no 53924/00 (ECtHR, 8 July 2004), para 80.
67 ibid.
68 Zampas and Gher (n 25) 265
69 Rhonda Copelon and others ‘Human Rights Begin at Birth: International Law and the Claim of Fetal Rights’ (2005) 13 Reproductive Health Matters 120, 124 <www.tandfonline.com/doi/pdf/10.1016/S0968-8080%2805%2926218-3> accessed 20 February 2022.
70 R.H. v Norway App no 17004/90 (ECtHR, 19 May 1992); Boso v Italy App no 50490/99 (ECtHR, 5 September 2002); A, B, and C v Ireland App no 25579/05 (ECtHR, 16 December 2010).
71 A, B, and C v Ireland App no 25579/05 (ECtHR, 16 December 2010), para 238
the liberalisation of abortion laws, however, it has not established legal access to abortion as a direct human right in its case law.
2. American Convention on Human Rights (ACHR)
At first glance, it seems as though the ACHR provides the legal platform for states to domestically limit or criminalise abortion.72 This is due to a provision in Article 4(1), which protects the right to life, in general, from the moment of conception. However, the White and Potter v the United States (1981) (also known as “Baby boy case”) proved the wording of Article 4 to be ambiguous.73 In short, the Inter-American Commission on Human Rights (IACHR) ruled that life does, in fact, generally start from the moment of conception, however, national laws allowing abortion do not automatically constitute a violation of Article 4. In such cases, the right to life of the mother and the foetus must be weighed against one another.74 Once again, there is no direct right to abortion provided by the American regional human rights framework, nor is there an absolute prohibition established.
3. The 2003 Protocol of the African Charter on Human and People’s Rights and the Rights of Women in Africa (The Maputo Protocol)
The Maputo Protocol is a revolutionary instrument as it is the only legally binding human rights treaty to explicitly address abortion as a human right Specifically, Article 14(2)(c) provides that:
“State 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” 75
This article is the only provision in any supranational law to provide a direct ‘right to abortion’ by explicitly outlining the circumstances under which the medical procedure may be legally performed. Some argue that the Maputo Protocol is the “first human rights instrument to confirm abortion is a ‘health issue’ that takes the form of a socio-economic right”.76 In its General Comment No. 2, the African Commission on Human and Peoples’ Rights (ACHPR) further noted that the failure to provide adequate access to safe abortion and post-abortion care
72 Malmsköld (n 23) 18.
73 White and Potter (‘Baby Boy’) v the United States, Resolution 23/81, OEA/Ser.L/V/II.54, Inter-American Court of Human Rights (6 March 1981).
74 ibid, paras 19, 25, 30.
75 Maputo Protocol (n 63) art 14(2)(c).
76 Zampas and Gher (n 25) 287
may constitute violations of the right to privacy, confidentiality, and freedom from discrimination and cruel, inhuman, or degrading treatment. 77 That said, the ACHPR also reported that many Member States are yet to implement the necessary reforms towards implementing Article 14(2)(c) domestically.78 In spite of that, the Maputo Protocol remains a pioneering instrument, serving as the blueprint for future advancements in the codification of abortion as a human right.
C. Customary international law
With such antipodal beliefs and practices on abortion across the world, there is no case to be made that the right is to be considered customary international law. According to Article 38(b) of the ICJ Statute, there are two elements of customary international law: 1) state practice, and 2) recognition of a said practice by states as legally binding (opinion juris).79 As of now, neither element is normalised internationally with respect to abortion. The 2020 Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family (signed by representatives of 34 States) serves as evidence of the rejection of global abortion, with the declaration reaffirming that “there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion” 80 While there is an unequivocal trend towards the liberalisation of abortion laws, any such trend does not ipso facto create an obligation under customary international law.81 Even if abortion were to be recognised as a universal human right, it would be fairly easy for a number of states – such as Ireland, a nation that has “always objected to the development of such wide availability of abortion”82 – to declare themselves a ‘persistent objector’ given their firm and unremitting stance on the issue for decades, if not centuries.
VI. Indirect right to abortion implied by other human rights
While the right to abortion is not explicitly granted by any international or regional instrument (with the exception of the Maputo Protocol), it is implied through a number of other
77 African Commission on Human and Peoples’ Rights, ‘General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’
78 Malmsköld (n 23) 18.
79 ICJ Statue (n 35) art 38(b).
80 UNGA ‘Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family’ UN Doc A/75/626 (2020).
81 Tozzi (n 24) 8-9.
82 Ineta Ziemele, Customary International Law in the Case Law of the European Court of Human Rights - The Method (Martinus Nijhoff Publishers 2013) 250.
human rights. The following section describes said rights, providing justification for whether they do, in fact, constitute an indirect right to abortion on an international level.
A. The right to family planning
Family planning was first explicitly established as a human right in the CEDAW. Given the CEDAW is ratified by 189 states, the right to family planning can be considered (almost) universal. Acknowledging abortion as an element of family planning would classify it as a right protected within human rights law.83 The interpretations of the term ‘family planning’, however, vastly differ among states. There is no concrete definition of family planning within public international law In fact, even within the CEDAW, there are four different formulations presented,84 with the most comprehensive being Article 16(1)(e), which defines the right to family life as the ability “to decide freely and responsibly on the number and spacing of [one’s own] children and to have access to the information, education and means to enable them to exercise these rights” . 85 In theory, abortion is a method by which women may control the number and spacing of their children, thus falling within the definition of family planning in Article 16(1)(e).86 Nevertheless, a deeper investigation of the generally understood meaning of family planning at the time of the adoption of the CEDAW reveals a contrary perspective. For instance, Chapter VIII, Article 25 of the Program of Action of the ICPD asserted that “in no case should abortion be promoted as a method of family planning”,87 a sentiment reiterated a year later in the Beijing Declaration.88 The Beijing Declaration also added that “every attempt should be made to eliminate the need for abortion”89 by expanding and improving family planning services.90 In light of these declarations, it can be understood that the common notion of the right to family planning did not encompass a right to abortion – on the contrary, it was regarded a method of prevention of abortion.91
The same conclusion can be drawn by inquiring into the preparatory works of Article 16(1)(e) of the CEDAW. The lengthy process included a number of drafts with progressive and conservative states arguing back and forth over the precise wording of the provision. Every
83 Malmsköld (n 23) 24.
84 Namely, Articles 10(h), 12(2), 14(2)(b), and 16(1)(e); See Malmsköld (n 23) 24.
85 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) art 16(1)(e).
86 Malmsköld (n 23) 25.
87 Programme of Action (n 21) chapter VIII para 25.
88 Beijing Declaration (n 28) para 106(k).
89 ibid, para 71(o).
90 ibid, para 106(k).
91 Malmsköld (n 23) 25.
attempt at expanding the reproductive right, for example by adding the word ‘services’ to potentially imply a right to abortion, however, was ultimately met with utter disapproval.92 Additionally, Malta and Monaco held express reservations to Article 16(1)(e) in regard to a potential commitment to legalise abortion in their domestic law.93 Based on these findings, it can be established that there is no legal basis for a right to abortion to be included within the definition of ‘family planning’ in the CEDAW.94
B. The right to life
Historically, the right to life of the foetus has been used as an argument against abortion. This can be seen, for example, in the preparatory works of Article 6 of the International Covenant on Civil and Political Rights (ICCPR) in which numerous states lobbied for a provisionprohibitingabortionbyrecognisinglifefromthemomentof conception.95 Ultimately, the proposal failed with the Commission on Human Rights (UNCHR) voting to adopt Article 6 with no reference to conception.96 The current formulation of the right to life in the ICCPR is as follows: “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” . 97 In 2018, the Human Rights Committee (UNHRC) issued General Comment No. 36 on Article 6, providing a comprehensive explanation of the right to abortion within the ICCPR’s right to life. The UNHRC reaffirmed that although states are free to adopt measures to restrict abortions, “such measures must not result in violation of the right to life of a pregnant woman or girl” , 98 nor can the restrictions be implemented in a way that would compel women to undertake unsafe abortions. 99 Most significantly, the Committee confirmed that safe, legal, and effective access to abortion is a
92 ibid, 26.
93 Beijing Declaration (n 28) paras 71(o), 106(k).
94 Malmsköld (n 23) 30.
95 UNGA Universal Declaration of Human Rights (1948), Drafting History, Third Committee, 12th Session (1957) UN Doc A/C.3/SR.810, para 2; A/C.3/SR.811, para 9; A/C.3/SR.812, para 7; A/C.3/SR.813, para 36; and A/C.3/SR.815, para 28; See Malmsköld (n 23) 34.
96 The Commission voted with 55 votes to nil, with 17 abstentions; See UNGA GAOR 12th Session Agenda Item 33, A/3764 (1957), para 119(q); Also see Zampas and Gher (n 25) 263; Similarly, the Universal Declaration of Human Rights (UDHR) references the right to life in Article 1 by stating “all human beings are born free” The word ‘born’ was intentionally used to exclude application of the right to a foetus. An amendment to extend the right to life from the moment of conception was proposed but was ultimately shut down; See Copelon and others (n 69) 121.
97 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 6(1).
98 UNHRC ‘General Comment No. 36 – Article 6: Right to Life’ (2018) UN Doc CCPR/C/GC/36, para 8 99 ibid.
human right protected under the ICCPR100 since the right to life begins at birth.101 Similar positions have been taken by numerous UN Special Rapporteurs, one of whom even states that a legal ban on abortion is a violation of the right to life and a gender-based arbitrary killing.102 In conclusion, it has been repeatedly emphasised that the universal right to life constitutes an indirect right to abortion or at least the prohibition of criminalisation of abortion in international law.
C. The right to privacy
Article 17 of the ICCPR establishes the right to privacy, stating that “no person shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour or reputation” 103 The restriction of access to abortion has consistently been deemed a violation of the right to privacy by UN treaty bodies.104 This is illustrated by three ground-breaking cases: [1] In the case of K.L. v Peru, 105 the UNHRC ruled that denial of abortion amounted to a violation of Article 17. In the case, a pregnant 17-year-old girl was advised by her gynaecologist to terminate the pregnancy due to an anencephalic foetus, a fatal diagnosis for the unborn child.106 K.L. was denied the abortion and was forced to give birth to the child who would pass away four days later, leaving the petitioner with severe depression.107 In 2005, the Committee found the Peruvian government guilty of violating Article 2 (lack of effective remedy), Article 7 (torture, cruel, inhuman or degrading treatment), Article 17 (unlawful interference with one’s privacy), and Article 24 (measures of protection of minors).108 [2] In 2011, the UNHRC ruled likewise in a similar case, LMR v Argentina, 109 in which a mentally disabled applicant was denied abortion following a suspected rape.110 [3] In 2016, the Human Rights Committee found Ireland’s constitutional ban
100 ibid.
101 Livio Zilli ‘The UN Human Rights Committee’s General Comment 36 on the Right to Life and the Right to Abortion’ (Opinio Juris, 6 March 2019) <http://opiniojuris.org/2019/03/06/the-un-human-rights-committeesgeneral-comment-36-on-the-right-to-life-and-the-right-to-abortion/> accessed 25 February 2023.
102 UNCHR ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a GenderSensitive Approach to Arbitrary Killings’ (2017) UN Doc A/HRC/35/23, para 94.
103 ICCPR (n 97) art 17.
104 Amanda Misasi ‘Abortion Is a Right: Pursuing International Remedies for U.S. Human Rights Law Violations’ (Platform for Peace and Humanity, 28 November 2022) <https://peacehumanity.org/2022/11/28/abortion-is-aright-pursuing-international-remedies-for-u-s-human-rights-law-violations/> accessed 26 February 2023.
105 Human Rights Committee, K.L v Peru (2005) CCPR/C/85/D/1153/2003 (K.L v Peru).
106 Malmsköld (n 23) 40.
107 ibid.
108 K.L v Peru (n 105), para 7.
109 Human Rights Committee, LMR v Argentina (2011) CCPR/C/101/D/1608/2007
110 Malmsköld (n 23) 40.
on abortion to be an infringement of a woman’s right to privacy.111 In the case of Mellet v Ireland, 112 Amanda Mellet, pregnant with an impaired foetus, travelled to the UK to undergo the procedure given Ireland’s near-total criminalisation of abortion. Upon return to Ireland, Ms. Mellet was denied post-abortion care, causing her complicated grief and trauma. 113 The UNHRC, once again, ruled this a violation of Articles 7 and 17 as well as an act of discrimination (Article 26) 114 The aforementioned cases demonstrate the UN’s unequivocal stance on the prohibition of abortion as an infringement of the right to privacy among other fundamental freedoms
D. The right to be free from torture and cruel, inhuman, and degrading treatment
All three cases (K.L. v Peru, LMR v Argentina, and Mellet v Ireland) also elucidate that the failure to guarantee abortion may be classified as torture, cruel, inhuman, or degrading treatment in international law 115 The UN solidified its position on the issue through the 2013 Report of the UN Special Rapporteur on Torture. In the report, the Rapporteur specifically mentioned the current lack of access to abortion, maintaining that the denial of reproductive rights is gender discrimination and can cause “tremendous and lasting physical and emotional suffering”116 to women.117 In 2016, the Special Rapporteur declared that the criminalisation of abortion is, in fact, a violation of international human rights law, on the grounds of ill-treatment and/or torture.118
E. The right to equality and non-discrimination
The right to equality and non-discrimination is enshrined in international law within Article 2 of the Universal Declaration of Human Rights (UDHR).119 Reiterating the sentiment of the Special Rapporteur in 2013 mentioned in the previous section, the Committee on Economic, Social and Cultural Rights (ESC Committee) acknowledged that denying access to safe
111 Misasi (n 104).
112 Human Rights Committee, Mellet v Ireland (2016) CCPR/C/116/D/2324/2013 (Mellet v Ireland)
113 Malmsköld (n 23) 41.
114 Mellet v Ireland (n 112) para 8
115 The prohibition of torture and other ill-treatment is protected by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) as well as Article 7 ICCPR.
116 UNCHR ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Juan E Méndez’ (2013) UN Doc A/HRC/22/53, para 46
117 A similar finding was made in the case of Whelan v Ireland; See Human Rights Committee, Whelan v Ireland (2017) CCPR/C/11/D/2425/2014.
118 UNCHR ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc A/HRC/31/57, para 14.
119 The right is also referenced in Article 2 and 26 ICCPR, Article 2(2) ICESCR, Article 2 CRC, Article 7 CMW, and Article 5 CRPD.
abortionisgenderdiscrimination.120 OtherUNbodieshavealsostatedthat“criminalisingforms of behaviours that can only be performed by women, such as abortion” 121 amount to discrimination against women, and in particular, economically disadvantaged women,122 due to the long-term repercussions such criminalising behaviours may induce Based on these comments, access to abortion can be considered an indirect right implied by the right to equality and non-discrimination in the international framework
F. The right to health
The right to the highest attainable standard is a human right protected by international law,123 specifically by Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) 124 In the previously mentioned General Recommendation No. 22, the ESC Committee identified “sexual and reproductive health as an integrative part of the right to health, intimately linked with civil and political rights” 125 According to the WHO, “securing sexual and reproductive health including availability of safe abortion respects, protects, and fulfils the right to health” 126 This shows the inclination of international law to recognise access to abortion as an element of the right to health. Equally, the prohibition of abortion is considered a violation of said right In 2011, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health wrote that “criminal laws penalising and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realisation of women’s right to health and must be eliminated” 127
Once more, abortion is confirmed to be a right indirectly recognised through another human right, in this case, the right to health.
120 ESC Committee ‘General Comment No. 22 on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights)’ (2016) UN Doc E/C.12/GC/22, para 25.
121 CEDAW Committee ‘General Recommendation No. 33 on Women’s Access to Justice’ (2015) UN Doc CEDAW/C/GC/33, para 47(b)
122 UNHRC ‘Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice’ (2016) UN Doc A/HRC/32/44 (Report of the Working Group)
123 OHCHR and WHO ‘Fact Sheet No. 31 – The Right to Health’ (2008) <www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf> accessed 27 February 2023.
124 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICCPR) art 12.
125 Malmsköld (n 23) 39.
126 ‘Abortion Care Guideline Web Annex A Key International Human Rights Standards on Abortion’ (World Health Organization, 2022) p 6 <https://apps.who.int/iris/bitstream/handle/10665/349317/9789240039506eng.pdf> accessed 22 February 2023.
127 UNCHR ‘Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Interim Report to the General Assembly’ (2011) UN Doc A/66/254, para 21.
G. Findings
Founded on the analysis of existing human rights treaties, case law, preparatory documents, and UN body comments/recommendations, abortion may be regarded as an indirect right implied by all six human rights discussed, apart from the right to family planning 128 More accurately, it is not a ‘right to abortion’ per se that is acknowledged but rather the criminalisation and denial of abortion that constitutes a violation of international human rights law, though access to safe and legal abortion has been repeatedly quoted as an aspect of human rights. It could be argued, therefore, that there exists a ‘freedom to be free from criminalisation of abortion’ (arising from the right to life, right to privacy, etc.) as opposed to a ‘right to abortion’, although the theoretical effect should be the same – the ability to access abortion as a method of terminating one’s pregnancy. Functionally, however, the former leaves room for states to limit abortion to strict measures (as long as it is not banned completely), while the latter would ensure a far more comprehensive capacity to safe and legal access under most, if not all, circumstances
VII. The rationale behind potential codification on an international level
The ever-growing movement calling for the codification of the right to abortion in international law is not one grounded in hateful anti-religious leftist ideology; rather, it is a response to the scientifically proven fact that restrictive abortion laws have detrimental effects on women’s lives and livelihoods.129 Research has demonstrated time and time again that there exists “a strong correlation between abortion legality and abortion safety” 130 Equally, restrictive abortion laws are proven to cause higher numbers of “unsafe, clandestine abortions, jeopardising their [women’s] lives and health” 131 The WHO data categorically demonstrates that criminalising abortion does not lower the number of women resorting to the procedure,132 since“women will seekabortionregardlessof itslegalstatusand lawful availability” 133 Instead,
128 In addition to the addressed human rights, restriction of abortion may also warrant a violation of the right to information; to bodily autonomy and integrity; to decide the number and spacing of children; to liberty; to enjoy the benefits of scientific progress; to freedom of conscience and religion; to security of person; to private and family life; and freedom of slavery; See Zampas and Gher (n 25) 287; Also see ‘Q&A: Access to Abortion is a Human Right’(HumanRights Watch, 24 June 2022)<www.hrw.org/news/2022/06/24/qa-access-abortion-humanright> 20 February 2023.
129 Malmsköld (n 23) 56.
130 Zampas and Gher (n 25) 250.
131 ibid; See ‘Unsafe Abortion: Global and RegionalEstimates ofthe Incidence ofUnsafe Abortion and Associated Mortality in 2008’ (World Health Organization, 2011) 5-6 <http://apps.who.int/iris/bitstream/handle/10665/44529/9789241501118_eng.pdf?sequence=1> accessed 28 February 2023; Also see ‘Abortion’ (n 6).
132 Report of the Working Group (n 122) para 35
133 Zilli (n 101).
restriction paradoxically increases the number of illegal and unsafe abortions134 – hence, the 25 million unsafe abortions still carried out each year.135
Unsafe abortion has been described by scientists as a ‘preventable pandemic’.136 Every year, more than 47,000 women die from problems related to unsafe abortions, with a further five million experiencing morbidities or disabilities as a result.137 This accounts for almost 13 per cent of all maternal deaths worldwide 138 Despite that, the WHO asserts that unsafe abortions are ‘entirely preventable’, if proper access to safe and legal abortion is provided along with pre and post-abortion care including the provision of information, counselling, and contraceptives 139
Systemic denial of abortion is considered discriminatory towards women, but in particular, poor and rural women are those who feel the impact of restrictive reproductive laws disproportionately more.140 This is reflected by the fact that 97 per cent of unsafe abortions take place in developing countries, which tend to have more stringent laws.141 This highlights the need for progressive policy regarding women’s reproductive health in order to combat gender, racial, and class discrimination. That said, legalisation alone is not enough to achieve these goals. For instance, in India, where abortion has been legal for decades, the number of unsafe abortions remains high because access to the public health system is predominantly restricted to cities. 142 Therefore, it is imperative that where abortion is legalised, it is made safe, affordable, and accessible to all.
Today, more than ever, abortion regulation is treated as a political tool, rather than a question of legality Consequently, given the current legal-political context, “moral[s] and religion sometimes outweigh health aspects and human rights of women” . 143 Reports have accused political leaders who call for further restriction of “the worst kind of value signalling, especially
134 ‘Safe Abortion: Technical and Policy Guidance for Health Systems’ (World Health Organization, 2012) p 90 <https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1> accessed 28 February 2023
135 Report of the Working Group (n 122) para 35.
136 Malmsköld (n 23) 1; See David A Grimes and others, ‘Unsafe Abortion: The Preventable Pandemic’ [2006] The Lancet, 368
137 ‘Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008’ (n 131) 27
138 ibid, 31
139 ibid.
140 UNHRC ‘Concluding Observations of the HRC regarding Argentina’ (15 November 2000) UN Doc CCPR/CO/70/ARG, para 14
141 Grimes and others (n 136).
142 ibid.
143 Malmsköld (n 23) 55.
since those leaders are not personally affected by the consequences of their changes in legislation due to economics, geography, and gender” . 144 Ultimately, the topic of abortion must be handled by the rules of international law. In other words, any legislation on the international level must respect women’s right to “decide freely and responsibly on matters related to their sexuality…free of coercion, discrimination, and violence” , 145 whilst complying with the principle of state sovereignty.
VIII. Recent advancements and the future of the right to abortion in international
law
Given the lack of international consensus and the limited jurisprudence of international bodies due to the supremacy of state sovereignty as established by Article 2(7) of the UN Charter, there has been no real effort (yet) to codify abortion as a right in human rights law On thecontrary, itseems atopic morepolarising than any other in the current legal-political climate. That said, there have been notable advancements recently in respect to a potential ‘right to abortion’ through case law and other soft law instruments.
A. Recent case law
Given that no supranational treaties (except the Maputo Protocol) directly mention abortion as a human right, precedent-setting case law is the principal mechanism by which the right may be universally safeguarded. Over the years, international and regional courts (as well as UN quasi-judicial bodies) have had significant influence on the liberalisation of abortion laws The following case law identifies just some of the milestone decisions in the field in the last decade.
1. United Nations Quasi-Judicial Bodies
In the landmark case L.C. v Peru (2011),146 the CEDAW Committee explicitly instructed thePeruviangovernmentto decriminaliseabortion in casesofrape– the first human rightsbody to do so.147 The decision came after an 11-year-old girl was repeatedly raped and subsequently became pregnant. L.C. was denied surgery and abortion by a Peruvian hospital based on the risk posed to her pregnancy following a suicide attempt, leading the Committee to order Peru
144 ibid, 54; See ‘Abortion: Access and Safety Worldwide’ (2018) 391 The Lancet 1121 <www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)30624-X/fulltext> accessed 28 February 2023.
145 Beijing Declaration (n 28) para 96.
146 CEDAW Committee, L.C. v Peru (2011) CEDAW/C/50/D/22/2009 (L.C. v Peru)
147 Johanna B Fine, Katherine Mayall, and Lilian Sepúlveda ‘The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally’ [2017] Health and Human Rights Journal <www.hhrjournal.org/2017/06/the-role-of-international-human-rights-norms-in-the-liberalization-of-abortionlaws-globally/> accessed 20 February 2022.
to liberalise its abortion laws.148 This approach was echoed in the previously mentioned UNHRC decision in the case Mellet v. Ireland, eventually leading to the legalisation of the procedure in 2019.149
2. Inter-American Court of Human Rights (IACtHR)
Most recently in the Americas, the IACtHR ordered El Salvador to overturn its total ban on abortion in Manuela v. El Salvador (2021),150 thus setting a progressive precedent for a region with long-standing anti-abortion practices
3. European Court of Human Rights (ECtHR)
In Europe, the ECtHR is currently facing a trio of Polish cases – K.B. and others v Poland, 151 K.C. v Poland, 152 and A.L.–B. v Poland153 – which present the Court the opportunity to enshrine the right to abortion under Article 8 of the ECHR.154 Further case law like this paves the way towards a potential recognition of the right to life within human rights law in both the regional and international arenas in the future
B. UN treaty bodies and committees
Although lacking legally binding jurisdiction, UN treaty bodies, namely committees, exist as quasi-judicial organs who play a vital role in ensuring Member States abide by their human rights obligations.155 As seen throughout the article, several states have been forced to liberalise their abortion laws on the behest of UN committees In its General Comment 20, for example, the Committee on the Rights of the Child156 “urges States [to] decriminalise abortion to ensure
148 L.C. v Peru (n 146).
149 ‘Abortion Law in Ireland’ (Abortion Rights Campaign) <www.abortionrightscampaign.ie/abortion-law-inireland/> accessed 23 March 2023.
150 Case of Manuela et al. v El Salvador, Judgement, 153/18, 13.069, Inter-American Court of Human Rights (7 December 2018).
151 K.B. v Poland App no 1819/21 (ECtHR, 1 July 2021).
152 K.C. v Poland App no 3639/21 (ECtHR, 1 July 2021).
153 A.L –B. v Poland App no 3801/21 (ECtHR, 1 July 2021).
154 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 8; See Karolina Szopa and Jamie Fletcher ‘The Future of Abortion Rights under the European Convention onHumanRights inLightof Dobbs’(UK ConstitutionalLaw Association, 30 June 2022) <https://ukconstitutionallaw.org/2022/06/30/karolina-szopa-and-jamie-fletcher-the-future-of-abortion-rightsunder-the-european-convention-on-human-rights-in-light-of-dobbs/> accessed 28 February 2023.
155 These committees monitor the adherence of Member States’ legislation to their respective treaties by hearing individual complaints, dealing with case law, conducting Country Inquiries, and publishing General Comments and Recommendations, See Malmsköld (n 23) 37.
156 The Committee on the Rights of the Child is the treaty body of the UN Convention on the Rights of the Child (CRC).
that girls have access to safe abortion and post-abortion services” 157 It is worth noting that UN treaty bodies have never criticised states for having abortion laws that are ‘too progressive’. 158 The Comments and Recommendations periodically published by treaty bodies provide a broader understanding of the UN’s interpretation of the provisions within its conventions. This then narrows down the ‘margin of appreciation’ thus forcing a more rigorous implementation of human rights within states’ domestic policy The little, yet noticeable, progress towards the codification of the right to abortion within human rights law is down to the CEDAW, CRC, ESC, and ICCPR committees, no less than any other international body.
C. United Nations General Assembly (UNGA) – Development Goals
The UNGA has the power to issue non-binding resolutions which, nevertheless, bear great impact. In 2000, the UNGA adopted the Millennium Development Goals (MDGs), which include MDG5, the obligation to: “reduce maternal mortality by 75 per cent and achieve universal access to reproductive health” . 159 Revisiting this objective, the 2030 Agenda for Sustainable Development added the following three goals. Goal 3.1: To reduce the global maternal mortality ratio; Goal 3.7: To ensure universal access to sexual and reproductive health care services, including family planning; and Goal 5.6: To guarantee access to reproductive rights in accordance with the ICPD and the Beijing Platform for Action.160 In 2015, the MDGs were succeeded by the Sustainable Development Goals (SDGs). In the realm of abortion, the new UNGA resolution recognised SDG 3: good health and well-being, and SDG5: gender equality.161 Access to sexual and reproductive health, including comprehensive abortion care, is fundamental in meeting these SDGs,162 as substantiated by the statistics provided in section VII. Once again, although these regulations are in no way binding, they do act as soft law instruments demonstrating the commitment of all 193 UN Member States to work towards a shared goal regarding women’s autonomy.
157 CRC Committee ‘General Comment No. 20 on the Implementation of the Rights of the Child During Adolescence’ (2016) UN Doc CRC/C/GC/20, para 60.
158 Malmsköld (n 23) 38.
159 ‘Millennium Development Goals’ (MDG Monitor) <www.mdgmonitor.org/millennium-development-goals/> accessed 28 February 2023.
160 ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (United Nations) <https://sdgs.un.org/2030agenda> accessed 28 February 2023; See Malmsköld (n 23) 5.
162 Caron R Kim, Antonella Lavelanet, and Bela Ganatra, ‘Enabling Access to Quality Abortion Care: WHO's Abortion Care Guideline’ [2022] The Lancet <www.thelancet.com/journals/langlo/article/PIIS2214109X(21)00552-0/fulltext> accessed 20 February 2023.
D. Right to abortion in the EU Charter of Fundamental Rights
June 2022 saw perhaps the most significant development in the codification of the right to abortion within human rights law. Following the highly controversial SCOTUS decision in Dobbs (2022), Members of the European Parliament (MEPs) voted to enshrine the right to abortion in the EU Charter of Fundamental Rights in order to safeguard the reproductive rights of women in the EU.163 Not only did the Parliament condemn the retrogression of federal abortion laws in the US, but MEPs used their prerogative to call for an amendment of the Treaties to explicitly mention the right to abortion.164 Specifically, with 324 votes in favour, 155 against, and 38 abstentions, the MEPs proposed to amend Article 7 of the CFR as follows:
“
Article 7a (new) Right to abortion
Everyone has the right to safe and legal abortion” 165
As a legally binding instrument (since the entry into force of the Treaty of Lisbon on 1 December 2009), such an amendment of the Charter would be a revolutionary step towards safeguarding the right to abortion in international law. The European Council will now convene to discuss a Convention to revise the Treaties which would allow an amendment of the Charter. The complex process, however, requires unanimity from all Member States 166 In other words, all 27 EU Members have a right to veto. Given the strict abortion laws in countries such as Malta and Poland, the revision has only the slightest possibility of passing 167 Accordingly, although the motion undertaken by MEPs demonstrates their sincere disapprobation of the SCOTUS’s repressive decision, it can be considered more of a symbolic gesture. That said, the movement seems to have left a mark on the national level. Specifically, in November 2022, the French National Assembly voted to enshrine the right to abortion in their constitution.168 Quoting similar reasons to the MEPs of protection against ‘backsliding’ seen in the US, French
163 ‘Include the Right to Abortion in EU Charter of Fundamental Rights, Demand MEPs’ (European Parliament, 7 September 2022) <www.europarl.europa.eu/news/en/press-room/20220701IPR34349/include-the-right-toabortion-in-eu-charter-of-fundamental-rights-demand-meps> accessed 24 February 2023.
164 ibid.
165 European Parliament ‘Motion for a Resolution on the US Supreme Court Decision toOverturn Abortion Rights in the United States and the Need to Safeguard Abortion Rights and Women’s Health in the EU’ (2022) B90365/2022, para 2.
166 As set out by Article 48 of the Treaty of the European Union (TEU).
167 Sarah-TaïssirBencharif, ‘MEPs Vote for Abortion Rights tobe Included inEU Charterof FundamentalRights’ Politico (Brussels, 7 July 2022) <www.politico.eu/article/meps-vote-for-abortion-rights-to-be-in-eu-charter-offundamental-rights/> accessed 28 February 2023.
168 Paul Kirby, ‘French Vote for Right to Abortion in Constitution’ BBC (London, 25 November 2022) <www.bbc.com/news/world-europe-63754796> accessed 22 March 2023.
lawmakers called to include a constitutional clause guaranteeing “the effectiveness and equal access to the right to end pregnancy voluntarily”. 169 Remarkably having passed through a rightwing-dominated senate in February 2023 (although with a formulation omitting the word ‘voluntarily’), the bill is now likely to be approved through a referendum, with polls suggesting an overwhelming support (over 80%) from French voters.170 Should the bill pass, France would become the first country in the world to guarantee a constitutional right to abortion.171 In all, the urge to push for a right to abortion in the Charter by a majority of MEPs illustrates monumental progress in one day codifying the right in international human rights law as well as its enormous effect on national legislators.
IX. Conclusion
Abortion is perhaps the most divisive and contentious topic in today’s climate, yielding endless debate in the legal and political spheres alike. While many have inexorable views on the matter – rooted in religious, cultural, and political ideologies – others regard it as a complex, multi-faceted matter of law Today, an increasing number of countries are liberalising their abortion laws, taking crucial steps towards promoting women’s reproductive rights and autonomy. Still, other nations refuse to do so, with some consolidating their conservative values by implementing retrogressive policies which further restrict or even criminalise the medical procedure. Although abortion is not a right directly enshrined within international law, restrictive laws may be considered potential violations of other human rights including the right to life, the right to privacy, and even the freedom from torture and other ill-treatment. This is a reflection of the years of scientifically backed data which demonstrate that restrictive abortion laws have unequivocal negative effects on rates of maternal deaths and morbidities. Consequently, a movement has begun from non-governmental organisations to human rights bodies that urge for further safeguarding of the right through codification in international law. While the success in doing so has been marginal thus far, with most advancements in the form of non-binding soft law, the idea of a ‘right to abortion’ is becoming deliberated more and more as the movement keeps growing. Although the principle of state sovereignty poses a fundamental challenge in achieving a universal right to abortion, there is no ruling out that such a move towards promoting women’s autonomy could one day be actualised as international law
169 ibid.
170 ‘France a Step Closer to Adding Abortion Rights to Constitution’ (RFI, 2 February 2023) <www.rfi.fr/en/france/20230202-france-moves-closer-to-adding-abortion-rights-in-constitution-after-senateapproves-text> accessed 22 March 2023.
171 ibid.
evolves past its dated Westphalian principles, ushering in a new era of globalisation and internationalism.
Legal Analysis of the COVID-19 Vaccine
Authorisation in the European Union and its Impact on the Free Movement of Persons: A Case Study of Slovakia
By Adam Arendárčik
Abstract
The outbreak of the COVID-19 pandemic has had a significant impact on the way of life around the world and has presented serious challenges to public health, as well as national, regional, and international governance and policy-making. In the EU, the European institutions and member states have had to develop new solutions to protect public health, minimise restrictions on citizens’ rights and freedoms, and stabilise the economic, social, and political situations. This paper examines the EU’s approach to the management of the pandemic, with a focus on the EU’s vaccination strategy, authorisation, and procurement. Furthermore, it analyses the EU Digital COVID Certificate, which was designed to facilitate restricted freedom of movement of persons in the EU. The paper also presents the case of Slovakia, which is used to demonstrate how the vaccination was carried out in individual member states. Finally, different vaccine authorisation procedures performed by the EU and the member states and their effect on the freedom of movement are discussed as well. The paper concludes that while the EU’s and Slovakia’s approach to managing the pandemic had the intention to protect public health and promote travel within the Union, they also restricted the freedom of movement of citizens vaccinated with non-EU-approved vaccines.
LL.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.
I. Introduction
The first case of SARS-CoV-2, which is also referred to as COVID-19, was reported in China in December 2019, and the World Health Organisation (WHO) declared the virus as a Pandemic disease in March 2020.1 This means that it was spreading outside containment measures in most countries around the world.2 COVID-19 did not only pose a global risk to the health of people but also created challenges in national, regional and international governance on every continent. The European Union (EU) and its Member States (MSs) were likewise affected. Both institutions in Brussels and national governments were faced with issues on how to ensure the protection of the health of its citizens, how to limit the spread of the virus and later, how to minimise economic damages.
The COVID-19 vaccine was developed to build immunity against the virus, reduce the spread of COVID-19, protect vulnerable populations, and prevent the healthcare system from being overwhelmed. Securing a sufficient amount of safe and effective vaccines and distributing them to the citizens was potentially the most important competence of the EU during the pandemic.3 This article analyses the authorisation of COVID-19 vaccines in the EU and its impact on the free movement of persons with a focus on the case of Slovakia. In doing so, the authorisation and procurement of the vaccines on the European and national level (in Slovakia) will be discussed, as well as their effect on the free movement of citizens in respect of the introduction of the EU Digital COVID-19 Certificate (EDCC).
The article contains four chapters and a conclusion. The first chapter focuses on the EU vaccination strategy. It also explains different authorisation procedures of medicine used in the EU. The second chapter presents the EDCC framework, its legal basis, and reasons for why it was introduced. A brief discussion analyses the benefits of the framework, as well as issues it might create when put to use. The third chapter discusses the authorization and procurement of the non-EU-authorised vaccine, Sputnik V, by Slovakia as one of the EU's member states. It shows why the Slovak government resorted to this approach and provides its evaluation. The legal basis for Sputnik V registration is provided as well. Lastly, the final chapter combines the
1 Jagandeep Singh and Jaspreet Singh, ‘COVID-19 and Its Impact on Society’ [2020] ERJSSH <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3567837> accessed 25 March 2023.
2 ibid.
3 A A Badiani, J A Patel, K Ziolkowski and F B H Nielson, ‘Pfizer: The Miracle Vaccine for Covid-19?’ (2020) 1 Public Health in Practice 100061.
findings of the previous three chapters to analyse the authorisation and procurement of Sputnik V in Slovakia and what effect it had on the freedom of movement of its citizens.
II. Vaccine authorisation and procurement in the EU
A. EU Strategy for COVID-19 vaccination
On 17 June 2020, the Commission presented the “EU Strategy for COVID-19 vaccination”, which expressed that the development and deployment of an effective and safe vaccine is a permanent solution to the crisis and outlined the actions the EU wants to take to achieve this objective.4 The pillars of the strategy were to secure sufficient production of vaccines in the EU, and thereby, sufficient supplies for its MSs, adapt the EU’s regulatory framework to the current urgency and make use of existing regulatory flexibility. 5 The strategy proposes a central procurement process carried out by the Commission. This way, MSs will be able to purchase vaccines via single procurement action. The process also offers a simplified negotiation process, reduction of costs, speed and efficacy, and the avoidance of competition between MSs. A population-based distribution key was used to allocate access to vaccine doses between MSs, meaning each MS received a number of vaccines relative to its population. When any of the vaccines became available, MSs could directly purchase them without the need to organise an additional procurement procedure. The procurement process was within the Commission’s authority, whereas the MSs were responsible for the deployment and use of the vaccines.6 The Commission clearly defined the EU’s main role in stopping the spread of the virus and protecting the health of the citizens. It first negotiated agreements on behalf of the MSs with potential vaccine manufacturers and supported the fast development of vaccines. Such actions are within the exclusive competence of the Union as they relate to the common commercial policy and the Union managed joint procurements in the past.7
B. Vaccine authorisation in the EU
Before the agreements with vaccine manufacturers were activated, the respective vaccines had to be approved and authorised by the appropriate medical institution declaring their safety and efficacy. This formal approval, also known as marketing authorisation, is issued by the Commission based on a positive recommendation and approval of the MSs by a qualified
4 Commission, ‘Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank, EU Strategy for COVID-19 vaccines’ (2020) COM/2020/245 final.
5 ibid.
6 ibid.
7 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/46, art 3(1).
majority. In the case of medical products for human use, the recommendations are drawn up by the European Medicines Agency (EMA) and its Committee for Medical Products for Human Use (CMPHU).8 The EMA and the authorisation procedure were established in Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (Regulation (EC) No 726/2004).9 Normally, granting of a marketing authorisation is a lengthy process where the applicant needs to provide various documents and meet a strict list of requirements.10 Naturally, complicated authorisation processes, however necessary, can be a burden in times of a global pandemic. When approval and distribution of an effective vaccine can slow down the spread of the virus and protect the health of citizens, swift procedures are fundamental.
C. Conditional marketing authorisation
The Regulation includes a provision allowing for faster authorisation under specific obligations. Such authorisation shall be valid for one year, on a renewable basis, and a Commission Regulation shall lay down rules for such authorisation.11 Commission Regulation (EC) No 507/2006 established Conditional Marketing Authorisation (CMA) and sets out rules for its use. CMA is a fast-track conditional approval of medicines in emergency situations to address an unmet medical need. 12 The purpose of this is to make an innovative drug immediatelyavailablefortargeting the treatment,preventing,or medicallydiagnosing seriously debilitating diseases or life-threatening diseases, giving patients a significant therapeutic advantage over existing treatment, or aiding in emergency situations of public health officially recognised by the World Health Organisation (WHO) or by the Union.13
A CMA may be granted where clinical data about the safety and efficacy of the medical product have not fully been provided by the manufacturer, while the CMPHU establishes that the following requirements have been met: “the risk-benefit balance of the medicinal product
8 Mária Éva Földes and Csilla Kaposvári, ‘SARS-COV-2 Vaccination and Employment: The Legal Framework in the EU and Hungary’ (2021) 14 Medicine, Law & Society 247 <https://journals.um.si/index.php/medicine/article/view/1369 > accessed 15 December 2022.
9 Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency [2004] OJ L 136/1 (Regulation (EC) No 726/2004).
10 ibid, art 6.
11 ibid, art 14(7).
12 Commission Regulation (EC) No 507/2006 of 29 March 2006 on the conditional marketing authorisation for medicinal products for human use falling within the scope of Regulation (EC) No 726/2004 of the European Parliament and of the Council [2006] OJ L92/6 (Commission Regulation (EC) No 507/2006).
13 ibid, art 2.
is positive. it is likely that the applicant will be in a position to provide the comprehensive clinical data, unmet medical needs will be fulfilled, and the benefit to public health of the immediate availability on the market of the medicinal product concerned outweighs the risk inherent in the fact that additional data are still required”.14 These conditions are cumulative, meaning they all need to be met for an authorisation to be granted. The holder of a CMA shall complete ongoing studies or conduct new studies to confirm the risk-benefit balance and provide additional data as requested by the CMPHU.15
This is different from a normal marketing authorisation where all data are submitted before the authorisation is granted.16 Once the missing data is supplied to prove the benefit-risk is definitively positive, the company is expected to make a formal application so the medicine can be authorised without any reservations.17 As COVID-19 was recognised as a pandemic and global health threat by the WHO, a COVID-19 vaccine was likely to qualify for CMA. It is understandable that due to the time-sensitive nature of the situation, potential applicants had not completed the clinical trials, and all the necessary information was not available yet. However, the CMPHU must find a positive risk-benefit balance of the vaccine showing that the benefit to public health exceeds the risk connected to the missing data. Only then can it authorise the vaccine and allow its purchase and distribution in the EU.
D. Emergency-use authorisation
There is an option for MSs to authorise medicines not approved by the EMA by a so-called Emergency Use Authorisation (EUA). The EUA permits the temporary use of medicine under specific conditions in emergency situations. 18 The medicine remains unlicensed and unauthorised by the EU; therefore, it cannot be put on the market. If a MS issues such an authorisation, the use of the medicine is restricted to that MS, and it is under its responsibility.19 The medicine can be distributed as an unauthorised product and the administrative and civil liability is taken from the producer and is placed on the MS. If a MS grants the EUA, it decides itself what procedure and which data is required for the authorisation.20 The EUA is a special
14 ibid, art 4.
15 ibid, art 5(1).
16 Földes and Kaposvári (n 8).
17 ibid.
18 Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use [2001] OJ L 311/67 (Directive 2001/83/EC).
19 ibid, art 5.
20 ‘Questions and Answers: Conditional Marketing Authorisation of COVID-19 Vaccines in the EU’ (European Commission) <https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_2390> accessed 15 December 2022.
procedure for a temporary supply of unauthorised medicines that can be used on a national level by individual MSs and the authorisation does not have an EU-effect. 21 Authorisation requirements are decided by individual MSs; thus, the authorisation is valid only in the issuing MS and the liability is shifted from the manufacturer to the MS.22 Furthermore, the required data for the authorisation may be less detailed and the obligations less stringent, making the process even faster than the CMA.23 This may, however, mean that the level of efficacy and safety cannot be guaranteed the same way as in the CMA, which requires a robust set of data and the completion of any missing information after the authorisation is granted.
E. Evaluating the EU’s COVID-19 vaccination strategy
The benefit of the joint procurement of COVID-19 vaccines lied in the possibility to secure lower prices because of the EU’s significant bargaining power. Procurement on behalf of all EUcountriesstoppedthewealthierstatesfrombuyingupall availablevaccines,to thedetriment of economically weaker states.24 Furthermore, the European Court of Auditors recognised that the procurement strategy had a diverse portfolio with a sufficient number of vaccines. 25 However, the Commission’s joint procurement did not preclude MSs from negotiating bilateral contracts for vaccine purchases, and it did not provide for re-distribution to countries with the worstepidemicsituation.26 Furthermore, Formanand Mossialosexpressedthat theCommission was inexperienced with such a process and it opted for lower prices over conditions of speedy deliveries.27 As a result, the UK and the US were faster to negotiate vaccine deliveries compared to the EU.28 This is in line with the findings showing that the EU did not order any vaccines at the end of July while the UK, the US and Israel had already initiated orders.29 The decisions that led to the vaccine procurement were political and were made under uncertainty, so it is difficult to assess them based on the information we have today. Nonetheless, the
21 Directive 2001/83/EC (n 18).
22 ibid.
23 ibid.
24 Rob Hyde, ‘Von Der Leyen Admits to COVID-19 Vaccine Failures’ (2021) 397 The Lancet 655 <www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)00428-1/fulltext> accessed 7 November 2022.
25 ‘EU COVID-19 vaccine procurement: lessons to be learned, say EU auditors’ (European Court of Auditors, 12 September 2022) <www.eca.europa.eu/en/Pages/DocItem.aspx?did=61899> accessed 7 November 2022.
26 Scott Greer and Anniek de Ruijter, ‘EU Health Law and Policy in and after the COVID-19 Crisis’ (2020) 30 European Journal of Public Health 623 <https://academic.oup.com/eurpub/article/30/4/623/5868719> accessed 7 November 2022.
27 Rebecca Forman and Elias Mossialos, ‘The EU Response to Covid‐19: From Reactive Policies to Strategic Decision‐Making’ (2021) 59 Journal of Common Market Studies 56 <www.ncbi.nlm.nih.gov/pmc/articles/PMC8657336/> accessed 7 November 2022.
28 ibid.
29 ibid.
conclusions were that the EU’s decision-making process took too long, important information was insufficiently considered, and the employed decision-making tools were inadequate.30
III. The EU Digital COVID Certificate
A. The need for a universal COVID-19 certification
Beforea safe and effectivevaccine wasdistributed in theEU, MSsadoptedvarious measures to limit the spread of COVID-19. The measures affected the right to move and reside freely within the territory of MSs. For instance, entry restrictions, quarantine or self-isolation requirements were applied when travelling from one country to another.31 Individual MSs presented plans to issue COVID-19 vaccination certificates. This was not supported by the EU, which called for a common approach to vaccination certificates’ content, format, principles, technical standards, and level of security.32 Unilateral measures were seen as limiting the right to free movement and hindering the proper functioning of the internal market because travellers were experiencing obstacles when moving within the EU and there have also been reports of fraudulent or forged documents.33
B. Regulation (EU) 2021/953 of the European Parliament and the Council
As a solution to the above-mentioned issues, on 14 June 2021, the European Parliament and the Council adopted Regulation (EU) 2021/953, establishing the EU Digital COVID Certificate (EU Digital COVID Regulation).34 The Regulation sets out a common framework for the issuance, verification and acceptance of interoperable certificates for COVID-19 vaccination and test or recovery certificates to facilitate the free movement of EU citizens.35 The Regulation also contributes to the gradual lifting of measures adopted by MSs that limit free movement.36
An essential aspect of the framework is its interoperability, allowing systems in one MS to utilise data that has been encoded by another MS and verify its accuracy.37 This allows for one
30 Werner Gleißner and others, ‘EU’s Ordering of COVID-19 Vaccine Doses: Political Decision-Making under Uncertainty’ (2021) 18 International Journal of Environmental Research and Public Health 2169 <www.mdpi.com/1660-4601/18/4/2169> accessed 7 November 2022.
31 Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during COVID-19 pandemic [2021] OJ L211/1 (Regulation 2021/953), recital 3.
32 ibid, recital 8.
33 ‘Coronavirus: Commission Proposes a Digital Green Certificate’ (European Commission, 17 March 2021) <https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1181> accessed 15 December 2022.
34 Regulation (EU) 2021/953 (n 31).
35 ibid.
36 ibid, art 1.
37 ibid, art 2.
universal system of certificates based on an accessible exchange of data shared among EU countries.
The Regulation goes beyond certificates confirming that the holder has received a COVID19vaccine.Italsoincludescertificatesconfirming thattheholderhasbeen subjectedto aNAAT test or a rapid antigen test (test certificate) and certificates confirming that the holder has recovered from COVID-19 following a positive result of a NAAT test (certificate of recovery).38 MSs should issue certificates in digital or paper-based format, or both, and the information contained in them should be provided in at least the official language of the issuing MSs and English.39 The certificates should be provided free of charge.40 They should include the identity of the holder, the certificate metadata, such as the certificate issuer and the information about the COVID-19 vaccine, and the number of doses administered, or information about the NAAT test or rapid antigen test, or information about past COVID-19 infection following a positive result respectively.41
Vaccination certificates should be issued to persons who have received a COVID-19 vaccine that has been granted marketing authorisation pursuant to Regulation (EC) No 726/2004, including CMA, and to persons who have received a COVID-19 vaccine that has been authorised by a competent authority of a MS in a EUA according to Directive 2001/83/EC.42 However, MSs only have to accept vaccination certificates for vaccines which received EU marketing authorisation. MSs may also decide to waive restrictions for travellers that received another vaccine, such as vaccines authorised in a EUA, but they are not obliged to do so.43 The personal data contained in the certificates shall be processed only to access and verify the information included in the certificate and they should not be stored by the MS of destination or transit.44 Third countries also issue COVID-19 certificates valid in the EU provided the Commission adopted an implementing act showing that the third country followed standards and used the technological systems of the EDCC Regulation. 45 Finally, Regulation (EU) 2021/9542 extends the EDCC framework to third-country nationals who are legally staying or
38 ibid, art 3(1).
39 ibid, art 3(2).
40 ibid, art 3(4).
41 ibid, arts 5-7.
42 ibid, recital 29.
43 ibid, art 5(5).
44 ibid, art 10.
45 ibid, art 8.
residing in an MS’s territory and who are entitled to travel to other MSs in accordance with EU law.
46
C. The effects of the EU Digital COVID Certificate
The EU Digital COVID Certificate Regulation created a common and universal approach to managing restricted travel in the EU.47 It is difficult to imagine having 27 different national COVID-19 certificates and citizens having to comply with different procedures every time they visit a new MS. This would pose unnecessary obstacles to the freedom of movement in the EU. Although Article 3(6) of the EU Digital COVID Certificate Regulation states that the certificate is not a precondition for exercising the right to free movement, its main purpose is to facilitate the exercise of this right.48 In reality, while the strict travel restrictions and entry requirements were in place, unconditional free movement of EU citizens was almost impossible. Of course, citizens could still travel without a certificate, but they were most likely required to self-isolate or stay in quarantine. People holding the certificate are no longer required to follow travel restrictions, which re-establishes the freedom of movement and makes regular travel within the EU again possible. This is reiterated in Article 11(1) of the Regulation, which states that MSs accepting certificates should refrain from imposing additional restrictions to free movement.49 If they do so, it must be necessary and proportionate to protect public health.50
It is also beneficial for citizens that the Regulation gives the possibility to obtain the certificate even when they are not vaccinated, but they got tested or have been infected instead, which leaves less space for discrimination. Still, some emphasise the possibility of discrimination in middle and low-income countries that were unable to carry out mass vaccination.51 For example, discrimination is linked to the inequality between those who have had the opportunity to get vaccinated and those who have not.52 Finally, it is necessary to note that being vaccinated or recently tested does not necessarily rule out that the individual can host or pass on the virus.53 Having the COVID certificate can give a false sense of security and
46 Regulation (EU) 2021/954 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) with regard to third country nationals legally staying or residing in the territories of Member States during the COVID-19 pandemic [2021] OJ L211/24.
47 Regulation 2021/953 (n 31).
48 ibid, art 3(6).
49 ibid, art 11(1).
50 ibid, art 11.
51 Gianluca Vergallo Montanari Vergallo and others, ‘Does the EU Covid Digital Certificate Strike a Reasonable Balance between Mobility Needs and Public Health?’ (2021) 57 Medicina 1077.
52 ibid.
53 ibid.
feeling that the pandemic is over. People should remain cautious and follow medical recommendations until the desired immunity rate is achieved in the population.
IV. The case of Slovakia
A. Measures implemented by Slovakia
To better illustrate how the vaccine authorisation and procurement worked in practice and what it meant for individual MSs, the present chapter analyses the vaccination roll-out in Slovakia. Slovakia, like the rest of the countries in the world, implemented various measures to control and minimise the spread of the virus. The measures included mandating quarantine in state facilities upon entering the territory of Slovakia, 54 mandating the closure of some services,55 and mandating the wearing of facemasks.56 We can see that the measures differ from those adopted by the EU and focus more on border control or internal affairs, which is within the full competence of the MSs. Strict restrictions in Slovakia proved to be effective in the first months of the pandemic and prevented a more serious situation, for example, in Italy or Spain.57 Still, as vaccination of a broad population was seen as the final solution to the COVID-19 crisis, Slovakia was happy to see its first citizens getting COVID-19 vaccines. Vaccination began on 26 December 2020, the same day the first batch of the vaccines arrived in Slovakia.58
B. Dissatisfaction with the vaccine roll-out in Slovakia
In January 2021, the Prime Minister of Slovakia was still expressing confidence that the country would receive enough EMA-approved vaccines for most of its adult population and would not need to resort to other vaccines not approved by the European agency.59 Yet, by mid-
54 ‘Measure ofthe Public Health Authority on Ordering the Mandatory Quarantine in State Facilities afterEntering the Territory of Slovak Republic’ (COVID-19 Law Lab) <https://covidlawlab.org/item/measure-of-the-publichealth-authority-on-ordering-the-mandatory-quarantine-in-state-facilities-after-entering-the-territory-of-slovakrepublic/> accessed 28 December 2022.
55 ‘Measure of the Public Health Authority on Ordering the Closure of Some Services’ (COVID-19 Law Lab) <https://covidlawlab.org/item/measure-of-the-public-health-authority-on-ordering-the-closure-of-someservices/> accessed 28 December 2022.
56 ‘Measure of the Public Health Authority on Ordering the Obligation of Wearing the Masks’ (COVID-19 Law Lab) <https://covidlawlab.org/item/measure-of-the-public-health-authority-on-ordering-the-obligation-ofwearing-the-masks/> accessed 28 December 2022.
57 ‘Covid-19: Prísne Opatrenia Sa Ukázali Ako Účinné’ (Ministerstvo zdravotníctva Slovenskej republiky) <www.health.gov.sk/Clanok?covid-19-prisne-opatrenia-sa-ukazali-ako-ucinne> accessed 28 December 2022.
58 ‘First Person Receives COVID Vaccine in Slovakia’ The Slovak Spectator (Bratislava, 26 December 2020) <https://spectator.sme.sk/c/22562138/vaccines-have-arrived.html> accessed 28 December 2022.
59 Nina Hrabovska Francelova, ‘Sputnik vaccine orbits Slovakia’ The Slovak Spectator (Bratislava, 25 February 2021) <https://spectator.sme.sk/c/22604625/sputnik-vaccine-orbits-slovak-politics.html> accessed 28 December 2022.
February, he had changed his policy and became a firm proponent of using the Russian vaccine, Sputnik V, even though it did not have the EU authorisation.60
There were two main reasons for this sudden change of position. Firstly, the EU’s vaccination plan was lagging behind as it was just beginning to deliver first vaccines.61 The European Commission’s strategy of joint vaccine procurement was being accused by national leaders of being too bureaucratic, too limiting to its members and too slow.62 Furthermore, contracted medicine manufacturers announced significant delays in the first quarters of 2021.63 This in turn affected Slovakia’s vaccination programme. As of 28 February 2021, 364,358 people received at least one dose of the COVID-19 vaccine, which equals to approximately 6.7 per cent of the population.64
Secondly, in February 2021, Slovakia became the country with the most COVID-19 deaths by the size of the population in the world,65 and its daily new confirmed COVID-19 cases were record high as well.66 To better illustrate these statistics, Slovakia had substantially more COVID-19-related deaths than the Netherlands, which has three times its population. Slovakia was not the only country in the EU that started looking at the possibility of procuring the Sputnik V vaccine. Likewise, the Czech Republic’s officials held discussions on increasing their vaccination rates using the Russian vaccine. However, they finally decided they would not do so until Sputnik V is approved by the EMA.67 Hungary, on the other hand, entered into a contract to procure Sputnik V COVID-19 vaccine in January 2021.68
C. Slovakia’s purchase of Sputnik V
The Prime Minister and the Minister of Health took the initiative to negotiate an agreement with the Russian medicine manufacturer. On 1 March 2021, they personally accepted the first
60 ibid.
61 Julian Deutsch and Sarah Wheaton, ‘How Europe fell behind on vaccines’ Politico (Brussels, 27 January 2021) <www.politico.eu/article/europe-coronavirus-vaccine-struggle-pfizer-biontech-astrazeneca/> accessed 28 December 2022.
62 ibid.
63 ibid.
64 ‘Coronavirus (COVID-19)Vaccinations’(Our WorldinData) <https://ourworldindata.org/covid-vaccinations> accessed 28 December 2022.
65 ‘Coronavirus (COVID-19)Deaths’(Our Worldin Data)<https://ourworldindata.org/covid-deaths> accessed 28 December 2022.
66 ‘Coronavirus (COVID-19) Cases’ (Our World in Data) <https://ourworldindata.org/covid-cases> accessed 28 December 2022.
67 Ed Holt, ‘Countries Split from EU on Covid-19 Vaccines’ (2021) 397 The Lancet 958.
68 ‘Hungary Receives Draft Contract to Procure Russian Vaccine’ (Hungary Today, 21 January 2021) <https://hungarytoday.hu/coronavirus-hungary-contract-procure-russian-vaccine/> accessed 28 December 2022.
delivery of Sputnik V vaccines at the airport in eastern Slovakia.69 On this day, Slovakia received the first batch of 200,000 doses and was meant to receive 2,000,000 doses overall in the coming months.70 The purchase of the Russian vaccine attracted significant attention in the media and caused a serious backlash in the coalition. One of the MPs left the parliament coalition, and the Minister of Foreign Affairs expressed concerns about the Prime Minister’s actions as well.71 The horrible pandemic situation and the unsupported purchase of Sputnik V led to both the Prime Minister72 and the Minister of Health73 stepping down from their positions.
Another issue arose upon the examination of the batches’ safety and efficacy. This medical control was supposed to be done by the State Institute for Drug Control (SIDC).74 The institute announced that it could not grant individual authorisation of the vaccine in Slovakia. The authorisation must be awarded by the EMA and the vaccine can be used in Slovakia only after it is approved for the therapeutic use of unregistered medicine by the Ministry of Health.75 While SIDC could not award the authorisation for registration on the market, it was willing to examine the vaccine’s efficacy and safety before it started being administered to the public.
76 However, a couple of days later the institute’s executive director published an announcement, stating that the SIDC is unable to fully analyse the vaccine as the manufacturer did not provide complete information and that resources of the institute are insufficient and the authorisation should be done through the centralised process provided by the EMA.77 As a result, it was decided that the vaccine will be tested in Hungary, where they already had experience with
69 ‘Sputnik V vaccines landed in Slovakia’ The Slovak Spectator (Bratislava, 1 March 2021) <https://spectator.sme.sk/c/22607893/slovakia-receives-first-sputnik-v-vaccines.html> accessed 28 December 2022.
70 ibid.
71 ‘PM Welcoming Russian vaccines was inappropriate’ The Slovak Spectator (Bratislava, 2 March 2021) <https://spectator.sme.sk/c/22608282/pm-welcoming-russian-vaccines-was-inappropriate.html> accessed 28 December 2022.
72 ‘Prezidentka prijala demisiu I. Matoviča, zostavením vlády poverila E. Hegera’ (Úrad Vlády Slovenskej Republiky) <www.vlada.gov.sk/prezidentka-prijala-demisiu-i-matovica-zostavenim-vlady-poverila-ehegera/?csrt=15392176210457161921> accessed 28 December 2022.
73 ‘Prezidentka prijala demisiu ministra zdravotníctva, rezort dočasne povedie Heger’ (Úrad Vlády Slovenskej Republiky) <www.vlada.gov.sk/prezidentka-prijala-demisiu-ministra-zdravotnictva-rezort-docasne-povedieheger/?csrt=15392176210457161921> accessed 28 December 2022.
74 ‘Úloha ŠÙKL-U pri posúdení vakcíny Sputnik V’ (ŠÚKL) <www.sukl.sk/hlavna-stranka/slovenskaverzia/media/tlacove-spravy/uloha-sukl-u-pri-posudeni-vakciny-sputnik-v?page_id=5543> accessed 28 December 2022.
75 ibid.
76 ibid.
77 Zuzana Batova, ‘ŠÚKL, sieť európskych liekových agentúr a Sputnik’ (LinkedIn, 21 February 2021) <www.linkedin.com/pulse/%C5%A1%C3%BAkl-sie%C5%A5-eur%C3%B3pskych-liekov%C3%BDchagent%C3%BAr-sputnik-zuzana-ba%C5%A5ov%C3%A1/> accessed 28 December 2022.
Sputnik V and have been using it to vaccinate for weeks.78 Lastly, because of the political issues in the coalition and delays in the medical examination, the first vaccine was administered on 7 June 2021, three months after its delivery to Slovakia 79
D. The legal basis for Sputnik V’s use in Slovakia
At the time of Sputnik V’s delivery to Slovakia, its manufacturer had not applied for the European authorisation with the EMA yet.80 The EMA started a rolling review of the Sputnik V COVID-19 vaccine on 4 March 2021. Although the initial studies indicated that Sputnik V triggers the production of antibodies and immune cells that may help protect against COVID19, the EMA has not granted Sputnik V marketing authorisation in the EU to this day.81 As explained in section II.D, EUA under the Directive 2001/83/EC allows temporary use of unauthorised medicine in individual MSs without the EU-wide effect.82 MSs themselves decide the authorisation requirements. In the case of Slovakia, the Ministry of Health may permit the use of the not authorised in the EU medicine under the authorisation for the therapeutic use of the unregistered medicine. The authorisation is governed by the Slovak Law, 362/2011 Statute, paragraph 46 ‘Authorisation of human medicine on the market’ and its complementary proclamation 507/2005.83 Therapeutic use of human medicine intended for one patient or group of patients may be authorised in emergency situations when the medicine is intended for therapeutic purposes listed in the decision on the registration of the medicine. 84 The authorisation is granted by the Ministry of Health and the medicine is administered after the written consent of the patient.85 Finally, the authorisation is valid for a maximum of six
78 ‘UPDATED: The Russian vaccine delivered to Slovakia to be tested in Hungary’ The Slovak Spectator (Bratislava, 9 April 2021) <https://spectator.sme.sk/c/22635191/the-russian-vaccine-delivered-to-slovakia-willbe-tested-in-hungary.html> accessed 28 December 2022.
79 Jan Krempasky, ‘Determined and unconcerned about travelling abroad. Who are the people interested in the Russian vaccine?’ The Slovak Spectator (Bratislava, 8 June 2021) <https://spectator.sme.sk/c/22677083/determined-and-unconcerned-about-travelling-abroad-who-are-the-peopleinterested-in-the-russian-vaccine.html> accessed 28 December 2022.
80 EMA, ‘EMA Starts Rolling Review of the Sputnik V COVID-19 Vaccine’ (European Medicines Agency, 4 March 2021) <www.ema.europa.eu/en/news/ema-starts-rolling-review-sputnik-v-covid-19-vaccine> accessed 28 December 2022.
81 ibid.
82 Directive 2001/83/EC (n 18).
83 Statute 362/2011 of Slovak Law.
84 ibid, para 46(3).
85 ibid, para 46(4).
months.86 The Ministry of Health authorised the use of 200,000 doses of Sputnik V on 1 March 2021 and this authorisation was valid until 31 August 2021.87
E. Evaluating Slovakia’s approach
The vaccination with Sputnik V in Slovakia was finalised on 31 August 2021, the last date when people could receive a second dose of the vaccine.88 This was also the last day of the validity of the authorisation awarded by the Ministry of Health. A total of 37,021 vaccine doses have been administered, and out of that number, a little over 18,500 individuals have received at least one dose of the vaccine.89 The number did not meet the expectations of the Slovak officials, as 200,000 doses have been delivered to Slovakia and the initial deal was meant to provide 2,000,000 doses.90 The remaining 160,000 doses had to be sold or donated to other countries.91 The overall vaccination rate also did not favour Slovakia’s approach. As of 31 July 2022, Slovakia has vaccinated 2.6 million people, which is roughly 50 per cent of its population and amounts to one of the worst vaccination rates in the EU.92 This is despite the substantial efforts of the government and its various incentives, such as vaccination lottery93 or cash bonuses,94 that were meant to motivate people to get vaccinated.
In general, eastern European countries showed hesitancy towards COVID-19 vaccination. The main eastern European determinants of COVID-19 vaccine acceptance identified from the retained studies are public confidence in the vaccines’ safety and efficacy, health and vaccine literacy, and public trust in the government and medical system.95 One of the reasons for
86 Proclamation 507/2005 of Slovak Law, para 3(7).
87 ‘Očkovanie vakcínou Sputnik V sa končí 31. Augusta 2021’ (Ministerstvo Zdravotníctva Slovenskej Republiky) <www.health.gov.sk/Clanok?ockovanie-sputnik-posledne-druha> accessed 28 December 2022.
88 ibid.
89 Radka Minarechova, ‘News digest: Another evacuation mission from Afghanistan successful’ The Slovak Spectator (Bratislava, 30 August 2021) <https://spectator.sme.sk/c/22731782/news-digest-another-evacuationmission-from-afghanistan-successful.html> accessed 28 December 2022.
90 ‘Slovakia will sell or donate unused Sputnik V vaccines’ The Slovak Spectator (Bratislava, 23 Jun 2021) <https://spectator.sme.sk/c/22688529/slovakia-will-sell-or-donate-unused-sputnik-v-vaccines.html> accessed 28 December 2022.
91 ibid.
92 ‘Coronavirus (COVID-19)Vaccinations’(Our WorldinData) <https://ourworldindata.org/covid-vaccinations> accessed 28 December 2022.
93 MichalKatuska, ‘Lottery worth27 million didnothelp. It should have persuaded the elderlybutlured the youth’ The Slovak Spectator (Bratislava, 3 November 2021) <https://spectator.sme.sk/c/22776193/lottery-worth-27million-did-not-help-it-should-have-persuaded-the-elderly-but-lured-the-youth.html> accessed 28 December 2022.
94 Michaela Terenzani, Nina Hrabovska Francelova, ‘Coailition agrees on 300-euro bonuses as vax motivation’ The Slovak Spectator (Bratislava, 7 December 2021) <https://spectator.sme.sk/c/22798898/coalition-agrees-on300-euro-bonuses-as-vax-motivation.html> accessed 28 December 2022.
95 Alina Delia Popa and others, ‘Determinants of the Hesitancy toward Covid-19 Vaccination in Eastern European Countries and the Relationship with Health and Vaccine Literacy: A Literature Review’ (2022) 10 Vaccines 672.
mistrustin thevaccines’efficacy andsafetyand thegovernment’spoliciesduring thepandemic, in general, could have been the conflicts surrounding the procurement and authorisation of Sputnik V. The inconsistent position of the governing parties on the Sputnik V procurement and prolonged time of its authorisation had not only caused delays in the vaccine distribution but also seemed unprofessional, uncertain, and pressured. These concerns could have affected Slovak citizens’ intention to get vaccinated and might have been one of the reasons of the low vaccination rates.
It has to be noted though that the policy decisions during the pandemic were made under uncertainty. Policy responses have frequently been conceived and implemented with an experimentalcharacterandhaveproduceda numberofunintended consequences.96 Inthatcase, procuring Sputnik V was an expensive and unsuccessful experiment, but it occurred during difficult times and with the potential to improve the situation. Another issue is how the policies are presented to the public. The strategy for all incumbents should be to stress the importance of the issue, suggest a reasonable set of policies, and be open to public and political debates about these policies.97 Slovakia did not seem to have learnt from the mistakes it made at the beginning of the pandemic, when the government introduced many measures that appeared arbitrary and potentially violated fundamental rights, for example, the ban on the right to assembly, while cultural and religious events remained allowed. 98 While open and clear communication is crucial during a crisis, the Slovak Prime Minister at the time criticised the work of the EMA, mainly, the speed of the procedure of the agency. At the same time, he endorsed the initiation of the EMA’s rolling review of Sputnik V.99
On the other hand, it is also important to analyse the reasons why Slovak officials decided to purchase and vaccinate with Sputnik V without European authorisation. When the vaccines arrived in Slovakia, the country was in a serious epidemiological situation, possibly one of the mostseriousonesin thewhole EU.100 Despiteaslowgrowthinthenumberofvaccinated people, hospitalization and mortality rates reached record highs and there was no indication of an
96 Martino Maggetti, Iris Meyer and Anke Tresch, ‘Covid‐19 – A Political Science Perspective’ (2021) 27 Swiss Political Science Review 227.
97 Lorena Barberia, Thomas Plümper and Guy D Whitten, ‘The Political Science of Covid‐19: An Introduction’ (2021) 102 Social Science Quarterly 2045.
98 Max Steuer, ‘Slovakia’s Democracy and the COVID-19 Pandemic: When Executive Communication Fails’ (VerfBlog, 9 March 2021) <https://verfassungsblog.de/slovakias-democracy-and-the-covid-19-pandemic-whenexecutive-communication-fails/> accessed 28 December 2022.
99 Barbora Blaskova, ‘Uncovering Challenges ofEuroscepticism:Sputnik V inthe European Union’(Masterthesis, Central European University 2022).
100 Hrabovska Francelova (n 59).
immediate shift in this trend.101 The public was naturally getting anxious, so officials had to bring new solutions, even at a cost of being experimental or not broadly approved. The overreaching objective remained the protection of public health, and mass vaccination was viewed as the main tool to reach this objective, whether with Sputnik V or with Europeanauthorised vaccines.102
Furthermore, polls of the public opinion showed that a significant part of the Slovak population was willing to get vaccinated with Sputnik V, and for some, it was the only acceptable vaccine. On 7 February 2021, a poll revealed that 51.4 per cent of Slovak citizens would opt to be vaccinated with the Sputnik V vaccine even though it was not authorised by the EMA.103 A month later, another poll showed that the vaccine remained the second most favourable, with 53 per cent of the entire population approving being vaccinated with Sputnik V.104 Although the vaccine did not have the full support in the coalition, it seemed that it was widely accepted by the public.
Slovakia was not the only country that considered expanding its vaccination portfolio with unauthorised vaccines. Countries like France, Germany, and Austria had also held negotiation talks with Moscow on the potential purchase of the Sputnik V vaccine.105 The governments of Bulgaria, Czechia, Estonia, Latvia, and Romania were open to consider using the vaccine once the EMA would grant its approval.106 Additionally, Hungary was the first country in the EU to buy non-EU authorised vaccines and it seemed to be an effective strategy. In the first half of 2021, Hungary was one of the best vaccinated countries in Europe.107
Finally, it is true that Slovakia, like the rest of the MSs, agreed with the vaccination strategy of the EU.108 It could not, however, predict the situation happening half a year after. Slovakia
101 ‘Coronavirus (COVID-19) Deaths’ (Our World in Data) <https://ourworldindata.org/covid-deaths> accessed 28 December 2022.
102 ‘Premiér Eduard Heger v záujme ochrany života a zdravia občanov má eminentný záujem na masívnej vakcinácii občanov’ (Úrad Vlády Slovenskej Republiky) <www.vlada.gov.sk/premier-eduard-heger-v-zaujmeochrany-zivota-a-zdravia-obcanov-ma-eminentny-zaujem-na-masivnej-vakcinaciiobcanov/?csrt=15392176210457161921> accessed 28 December 2022.
103 ‘Očkovať by sa dala polovica Slovákov, Sputnikom len pätina, ukázal prieskum’ Pravda (Bratislava, 19 February 2021) <https://spravy.pravda.sk/domace/clanok/578655-ockovat-by-sa-dala-polovica-slovakovsputnikom-len-patina-ukazal-prieskum/> accessed 28 December 2022.
104 ‘People trust Pfizer and Sputnik V the most’ The Slovak Spectator (Bratislava, 8 March 2021) <https://spectator.sme.sk/c/22612571/people-trust-pfizer-and-sputnik-v-the-most.html> accessed 28 December 2022.
105 Blaskova (n 99).
106 ibid.
107 ‘Coronavirus (COVID-19) Vaccinations’ (Our World in Data) <https://ourworldindata.org/covidvaccinations> accessed 28 December 2022.
108 D Kochenov and J Veraldi, ‘The Commission against the Internal Market and EU Citizens Rights: Trying to Shoot down Sputnik with the “Digital Green Certificate”?’ (2021) 12 European Journal of Risk Regulation 404.
took control and used available legal tools (EUA) to provide medical options and solutions to itscitizens.109 TheSputnikVand overallvaccination campaign inSlovakia might nothavebeen a successful story, but the outcome was not determined solely by the purchase of the Russian vaccine.
The fact that Sputnik V was being used after the EUA impacted how Slovak citizens who chose this vaccine could utilise the EDCC. Specifically, this choice could seriously influence how their right to free movement of persons was facilitated or restricted. The particular consequences for the Slovak citizens who received a vaccine not authorised in the EU will be further discussed in the next chapter.
V. The legal implications of the emergency use authorisation of the COVID-19 vaccines and its impact on the free movement of persons of Slovak citizens in the EU
A. The free movement of persons in the EU and its importance
The free movement of persons is one of the four fundamental freedoms of EU law, along with the free movement of goods, services and capital.110 Also referred to as the freedom to move and reside in the EU, the free movement of persons is one of the political symbols, a milestone of the internal market, and a necessary pre-condition for the establishment of the common market.111 The freedom of movement, like other rights, can only be restricted in limited circumstances. For this purpose, MSs may restrict the freedom of movement and residence on the grounds of public policy, public security, or public health.112 Only diseases with epidemic potential, as defined by the WHO, justify restrictions on freedom of movement.113 The WHO declared COVID-19 a pandemic disease, which thereby meets this condition. In this view, MSs used the justified restriction as the basis to limit entry into their territories, as show-cased by the above-mentioned example of Slovakia requiring mandatory quarantine in state facilities upon entry. Naturally, such a constraint affected not only the rights of the citizens but also the functioning of the internal market and the overall economic condition of the whole Union. The Commission quickly recognised these negative effects and declared
109 ibid.
110 Paul Craig and Grainne de Burca, EU Law: texts, cases and materials (6th edn, OUP 2015) 744.
111 Sergio Carrera, ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU?’ (2005) 11 European Law Journal 699.
112 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77 (Directive 2004/38/EC), art 27.
113 ibid, art 29.
the importance of restoring free movement with the vaccination strategy as the surest, quickest, and most efficient way of accomplishing that goal.114
Additionally, the EDCC stood out as another important tool designed to facilitate free movement. This is endorsed by public statements of the highest EU officials. On this matter, the vice president of the Commission, Vera Jourova declared that “the Digital Green Certificate offers an EU-wide solution to ensure that EU citizens benefit from a harmonised digital tool to support free movement in the EU”.115 Furthermore, the statement of Commissioner for Justice, Didier Reynders stated, “with the Digital Green Certificate, we are taking a European approach to ensure EU citizens can travel safely and with minimum restrictions this summer”. 116 Notwithstanding its best intentions, the vaccine strategy combined with the EDCC created new barriers to freedom of movement, as illustrated by the case of Slovakia.
B. Emergency use authorisation of the Sputnik V vaccine
The use of Sputnik V was first and foremost approved on Slovak territory because of the critical pandemic situation. In this regard, the Ministry of Health authorised registration under EUA, thereby resulting in the vaccine only being used in Slovakia for a limited time and not being sold in the EU. Slovakia (along with Hungary) was the only MS where citizens could be vaccinated with the Sputnik V vaccine, in spite of its lack of approval by the EMA and its limited use in the EU.
More specifically, the authorisation process is determined by the national law of the respective MS, in this case, Slovak law, which allows for the authorisation of unregistered medicine for therapeutic use when granted by the Ministry of Health.117 Even though the law does not require any medical review, the delivered batch was supposed to be examined by the SIDC. Because of missing information and insufficient resources, the batch was finally checked by a foreign, Hungarian institute.118 This is different from the authorisation process of medicine on the EU level under EMA. In fact, EMA creates a network with national institutes and employs experts responsible for examining the quality, efficacy, and safety of medicines before they are put on the market.119 The review is a lengthy and detailed process meant to ensure that
114 Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank, EU Strategy for COVID-19 vaccines (n 4).
115 ‘Coronavirus: Commission proposes a Digital Green Certificate’ (n 33)
116 ibid.
117 Statute 362/2011 of Slovak Law.
118 ‘UPDATED: The Russian vaccine delivered to Slovakia to be tested in Hungary’ (n 78).
119 Regulation (EC) No 726/2004 (n 9).
the medicine used by the public is properly checked. In emergency situations manufacturers can utilise a simplified and faster conditional marketing authorisation which still ensures positive risk-benefit evaluation. Consequently, all COVID-19 vaccines authorised by EMA have undergone the conditional marketing procedure.
On the other hand, the process under EUA was much faster and lenient as the Ministry’s authorisation was the only condition for registration. This allowed Slovakia to use Sputnik V immediately after it arrived, and if the vaccine had been administered more quickly, the country’s vaccination rate could have increased at a time when it was most needed. When a widely used medicine is not reviewed by an appropriate examination process to determine its safety and efficacy, the speed and quality of the authorisation process can also pose a threat to the future. The Slovak government's main goal in acquiring the Sputnik V vaccine was public health protection and rapid vaccination rollout. The government wanted to add another option to the vaccination portfolio in order to increase vaccination rates during this critical period. In reality, only a small percentage of the population chose to be vaccinated by Sputnik V and this strategy had a rather negative effect on the overall vaccination rate.
C. The EU Digital COVID Certificate and the emergency use authorisation
In connection to the EDCC, citizens who opted for a vaccine that did not receive European marketing authorisation, but was authorised by a competent authority of MS in a EUA, can still hold the certificate.120 However, it is up to individual MSs to waive restrictions for travellers that received another vaccine, such as vaccines authorised in a EUA.121 The countries that do not accept the certificate remain free to continue to impose different types of restrictions, such as full travel bans or quarantine requirements that make cross-border mobility significantly more difficult or impossible due to financial or time constraints.122 For example, Czechia and Hungary agreed that they would recognise Slovak vaccination certificates, even those that contain vaccination with Sputnik V.123 On the other hand, a different approach was taken by Austria, which only accepted certificates on vaccines registered by the EMA and WHO.124 Similar to EMA, Sputnik V was never registered by WHO due to missing data and missing
120 Regulation (EU) 2021/953 (n 31).
121 ibid.
122 Kochenov and Veraldi (n 108).
123 ‘Czech Republic, Hungary, and Austria will recognise Slovak vaccination certificates’ The Slovak Spectator (Bratislava, 28 May 2021) <https://spectator.sme.sk/c/22669970/czech-republic-hungary-and-austria-willrecognise-slovak-vaccination-certificates.html> accessed 20 January 2023.
124 ibid.
inspections.125 France126 and Germany127 are other examples of countries that did not accept vaccination certificates awarded after obtaining the Sputnik V vaccine. Slovak citizens vaccinated with Sputnik V who wanted to travel to these MSs were subjected to travel restrictions, even though they received vaccine authorised in their home MSs according to EU law.128 Inotherwords,thevaccinationstrategyofsome MSs,andthe EDCCframeworkbroadly, seemingly failed in safeguarding this group of vaccinated citizens who, despite receiving a vaccine authorised in an EU MS, were required to adhere to numerous and often contrasting requirements when travelling in the EU.
Lastly, it also ought to be noted that the EDCC does indeed provide other means for unrestricted travel, such as a valid COVID test or proof of recovery. It is beneficial that vaccination is not the only option for acquiring the certificate and that EU citizens have other possibilities as well. Still, such requirements pose limitations on the freedom of movement as not everyone can afford to get tested every time they want to travel abroad In any case, such requirements pose limitations on the freedom of movement as not everyone can afford to get tested every time they want to travel abroad.
D. Possible improvements of the emergency use authorisation and the EU Digital COVID Certificate Framework
First and foremost, when registering medicine through the EUA, which is intended for use by tens of thousands of people, strict medical examination requirements should be imposed. Using EUA to authorise medicine for individual patients suffering from rare conditions may not necessitate a stringent examination procedure. However, widespread vaccination with Sputnik V of a wide population should be based on strict medical scrutiny ensuring the quality, efficacy and safety of the vaccines administered. Consequently, in the future, the EU should make the necessary legislative changes to request that MSssubject the use of non-EU registered medicines to undergo review by the national drug control institute-issued reviews, at least in cases when the medicine is intended for general public use.
125 ‘Covid-19 Vaccines’ (World Health Organization) <www.who.int/teams/regulationprequalification/eul/covid-19> accessed 20 January 2023.
126 ‘Covid-19: Is Your Foreign Vaccination Status Accepted in France?’ (Campus France) <www.campusfrance.org/en/covid-19-is-your-foreign-vaccination-status-accepted-in-france> accessed 20 January 2023.
127 ‘Germany Permits Entry for Travellers Jabbed with 5 COVID-19 Vaccines, Including Covishield’ (Schengen Visa News, 12 August 2022) <www.schengenvisainfo.com/news/germany-permits-entry-for-travellers-jabbedwith-5-covid-19-vaccines-including-covishield/> accessed 18 January 2023.
128 ibid.
Secondly, some propose requiring MSs to mutually recognise the vaccine decisions of other MSs in order to avoid restrictions on the freedom of movement.129 In this regard, a derogation clause that requires MSs unwilling to accept certificates based on non-EMA-approved vaccines to justify their decision can be added.130 Non-acceptance of vaccination certificates should only be implemented in cases where MSs face a significant public health risk.131 This approach has the potential to rebuild trust and solidarity among MSs and safeguard the freedom of movement for citizens who have been properly vaccinated, regardless of vaccine authorization. However, challenges may arise when determining what qualifies as a severe risk to public health that warrants the refusal of vaccination certificates, or who should be responsible for making such decisions.
Lastly, vaccines recognized by the WHO as safe and effective could be added to the list of vaccines supported by the EDCC. For this purpose, WHO maintains a record of medicines, including vaccines, that pass review based on an essential set of available quality, safety, efficacy, and performance data through its Emergency Use Listing Procedure.132 As the worldleading health organisation in the world, the WHO procedure should ensure medicines’ quality. As a result, MSs may decide to purchase vaccines that were not procured by the EU and may still be awaiting EMA approval, while their safety and efficacy are guaranteed by the WHO. In this sense, such a solution would not only prevent restrictions on EU citizens, but it would also result in facilitated travel for third-country nationals who live and work in the EU. Lifting restrictions for international travellers fully vaccinated with WHO-approved vaccines from various developing countries that do not have equitable access to EMA-approved immunisation could be a strategic approach for the EU to lead by example and show the world how it governs with impartiality, solidarity, and inclusiveness. This is especially true for international students and professionals travelling to and within the EU. However, this enhancement of the framework would not address the issue of the Slovak citizens who had been vaccinated by Sputnik V, as this vaccine has still not recognised by the WHO.133
129 Kochenov and Veraldi (n 108).
130 ibid.
131 ibid.
132 ‘Diagnostics Laboratory Emergency Use Listing’ (World Health Organization) <www.who.int/teams/regulation-prequalification/eul> accessed 20 January 2023.
133 ‘Covid-19 Vaccines’ (World Health Organization) <www.who.int/teams/regulationprequalification/eul/covid-19> accessed 20 January 2023.
VI. Conclusion
The outbreak of the COVID-19 Pandemic has changed the way of life around the world and posed challenges not only to the protection of public health but also to national, regional and internationalgovernanceandpolicy-making. In the EU,the European institutions, togetherwith MSs, had to develop new solutions that would protect the health of the citizens, minimise restrictions on the citizens’ rights and freedoms and stabilise the worsening economic, social, and political situations. As the successful vaccination of a wide population was deemed to be the answer to managing the pandemic, the EU decided to use its competences to establish a common approach to vaccine authorisation and procurement in the Union.134
The strategy introduced a central procurement procedure for COVID-19 vaccines and their allocation to MSs based on population.135 Before the vaccines had been purchased, they had to be authorised by the EMA, which performs quality, safety and efficacy reviews before medicines are put on the EU market.136 Generally, the review is a lengthy, complicated process buttheEUlawallowsforsimplified andfasterproceduresinemergency situationscalledCMA. This authorisation can be granted before all the data is available, provided the examination shows a positive risk-benefit analysis.137
Individual MSs may resort to the EUA as stipulated in Directive 2001/83/EC, which allows the authorisation of medicine in emergency situations and under specific obligations.138 This authorisation is only valid for a limited time and in the respective MS, which means the authorised medicine cannot be placed on the general EU market.139 The authorisation process is decided by the MS, which also bears administrative and civil liability instead of the medicine producer.140
National measures trying to limit the spread of the virus negatively affected the right to move and reside freely within the territory of the EU. To facilitate this freedom, the European Parliament and the Council adopted Regulation (EU) 2021/953 establishing the EDCC.141 The Regulation introduced a common framework for the issuance, verification and acceptance of
134 Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank, EU Strategy for COVID-19 vaccines (n 4).
135 ibid.
136 Regulation (EC) No 726/2004 (n 9).
137 Commission Regulation (EC) No 507/2006 (n 12).
138 Directive 2001/83/EC (n 18).
139 ibid.
140 ibid.
141 Regulation (EU) 2021/953 (n 31).
interoperable certificates for COVID-19 vaccination and test or recovery certificates.142 The certificates were issued to people who received vaccines authorised according to the CMA by the EMA and vaccines authorised in national procedures under the EUA.143 However, MSs were only required to accept vaccination certificates of people vaccinated with EMA-approved vaccines and could choose to waive restrictions for people vaccinated with vaccines authorised in EUA but were not obliged to do so.144
The case study of Slovakia showed that the Slovak officials were confident that the vaccine delivery contracted by the Commission would be enough to vaccinate Slovakia’s adult population in the necessary time.145 This position was changed after Slovakia experienced one of the worst mortality and hospitalisation rates in the EU.146 The Commission’s vaccination strategy was accused of being too bureaucratic, too limiting to its members and too slow by national leaders including the Slovak Prime Minister and Minister of Health.147 Subsequently, Slovakia decided to purchase Sputnik V, a non-EU-approved vaccine from a Russian manufacturer.148 This decision sparked controversy and a crisis in the coalition after which the Prime Minister and the Minister of Health had to resign from their positions.149
Sputnik V has never received authorisation from the EMA.150 Slovakia used the national authorisation procedure under the EUA to register this vaccine for use on its territory. The authorisation is granted by the Ministry of Health, and it was issued on 1 March 2021.151
The free movement of persons is an essential principle in European law, which was heavily restricted during the pandemic. The re-establishment of this freedom had the utmost importance in the frameworks and policies introduced by the EU and the MSs. Slovakia registered a nonEMA-approved Sputnik V vaccine, according to the EUA. This meant that the vaccine could only be used in this MS, and the authorisation process was solely decided by Slovakia.152 The EUA provided a more lenient approach, which allowed fast registration of the vaccine.
142 ibid.
143 ibid.
144 ibid.
145 Hrabovska Francelova (n 59).
146 ‘Coronavirus (COVID-19) Deaths’ (n 65).
147 Hrabovska Francelova (n 59).
148 ‘Sputnik V vaccines landed in Slovakia’ (n 69).
149 Prezidentka prijala demisiu I. Matoviča, zostavením vlády poverila E. Hegera (n 72).
150 ‘EMA Starts Rolling Review of the Sputnik V COVID-19 Vaccine’ (n 80).
151 Očkovanie vakcínou Sputnik V sa končí 31. Augusta 2021 (n 87).
152 Directive 2001/83/EC (n 18).
However, the Slovak Government did not manage to capitalise on this and did not start administering the vaccine until June 2021.153
The EUA, in connection with the EDCC, also created new restrictions on the freedom to move and reside in the EU. Sputnik V was not included in the vaccination certificates of many MSs and Slovak citizens who received this vaccine did not improve their possibility to travel in any way.154 Although people who received the Sputnik V vaccine in Slovakia may have satisfied both their own and Slovak officials' intentions to safeguard public health, they were unable to enjoy the same freedom of movement as their counterparts who received EMAapproved vaccines. Similarly, the EDCC framework benefited the majority of the EU citizens who received an EMA-approved vaccine and could again exercise the freedom of movement without restrictions. However, it left out part of society and established double standards for vaccinated citizens.
Finally, the article proposes a few improvements to these frameworks. Medicines that are registered through the EUA and are intended for wide use should be required to pass medical review by the responsible national agencies. MSs could also mutually recognise the vaccine decisions of other MSs and derogate from this decision only in justified cases showing risks to public health. This can prevent restrictions on the freedom of movement enabled by the EDCC insimilarfuturesituations.Lastly,thecertificatecouldalsoincludevaccinesthatwerereviewed as safe and effective by the WHO, which could expand the vaccination portfolio of the EU and allow MSs to procure vaccines that were not authorised by the EMA but still show medical benefits.
The Pandemic may now be seemingly over in the EU, but the established procedures and newly introduced frameworks, namely the EU vaccination strategy, the EUA and the EDCC, although having the right intentions, also created issues that restricted the freedoms of the EU citizens. We need to learn from these mistakes and ensure that in future global health crises, they will not be repeated. Policies should never exclude part of society, whether this is done unintentionally or not. EU institutions and national governments should always strive to treat every group of society equally and prevent any restrictions on citizens’ rights and freedoms.
153 Krempasky (n 79).
154 ‘Covid-19: Is Your Foreign Vaccination Status Accepted in France?’ (n 126).
Exploring the Possibility of Climate Change-Related Action by the United Nations Security Council
By Tolga Doğan
Abstract:
So far, the UNSC has addressed climate change only indirectly, by making reference to it in resolutions dealing with other pre-existing crises. While the Council agrees that climate change can have security implications, the members are in disagreement about the classification of this issue; island states in particular see climate change as a matter of international peace and security, whereas some of the P5 nations regard it as an issue of sustainable development that should be handled by the UNFCCC. The UN Charter leaves a lot of discretion to the Council as to what situations fall within the scope of its mandate. The UNSC has taken advantage of this when declaring situations absent of the use of force or armed conflict as a threat to the peace. Due to climate change’s security implications, a similar approach could be taken by the Council to address this issue proactively. While the Charter would allow for military action, pacifist measures to coerce states to mitigate greenhouse gas emissions according to their commitments in connection to the UNFCCC are more desirable. Thus, the Council could call upon states to mitigate their emissions by respecting relevant conventions, establishing a committee of oversight, and implementing policies to decrease national emissions. In addition, the Council could establish international tribunals and courts, thereby increasing public scrutiny to compel states to respect their pledged emission mitigation target
LL.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.
I. Introduction
Anthropogenic climate change, caused by greenhouse gas (hereinafter ‘GHG’) emissions, is widely regarded as a “threat multiplier” that exacerbates already existing crises.1 However, even on its own, climate change may be regarded as a threat to stability and peace. For instance, it has been estimated that it could cause mass migration and population displacement, affecting up to 1 billion individuals.2 A problem caused by human activity, it also requires a human solution. Realising the need to mitigate this anthropogenic climate change, states came together to establish the United Nations Framework Convention for Climate Change (UNFCCC) and agreed to decrease their GHG emissions.3 However, “current efforts and targets globally are by far insufficient” to limit the global temperature increase to 1.5°C compared to pre-industrial levels.
4
This leads to the impression that the current climate action framework under the UNFCCC is insufficient to compel states to reduce their GHGemissions at a rate that effectively addresses climate change. In an effort to remedy this, this article seeks to examine a potentially more efficient means of tackling climate change in the form of action by the United Nations Security Council (UNSC or the Council). This article will address how climate change could fall within the mandate of the UNSC and, subsequently, what action could be taken by the Council to tackle the issue, without encroaching on the competence of the UNFCCC.
To answer this question, the article will first outline the security implications of climate change. Second, the article examines how the UNSC has addressed climate change, or rather, its consequences, in the past. Thirdly, the article explores how climate change itself could trigger the mandate of the UNSC by highlighting situations in which the UNSC got involved in the absence of armed conflict or the use of force. Lastly, this paper examines the measures that could be taken by the UNSC once it is established that climate action falls within the Council’s mandate.
1 ‘Climate Change Recognized as “Threat Multiplier”, UN Security Council Debates Its Impact on Peace | COMMISSION de CONSOLIDATION de LA PAIX’ (United Nations) <www.un.org/peacebuilding/fr/news/climate-change-recognized-%E2%80%98threat-multiplier%E2%80%99un-security-council-debates-its-impact-peace> accessed 2 March 2023.
2 Avnita Lakhani, ‘International Law in the Era of Climate Change’ (2014) 32 Journal of Energy & Natural Resources Law, 206.
3 ‘The UN Security Council and Climate Change: Research Report Security Council Report’ (Security Council Report, 21 June 2021) 1 <www.securitycouncilreport.org/research-reports/the-un-security-council-and-climatechange.php> accessed 2 March 2023.
4 Andreas Geiges and others, ‘Incremental improvements of 2030 targets insufficient to achieve the Paris Agreement goals’ (2020) 11 Earth System Dynamics 698 <https://esd.copernicus.org/articles/11/697/2020/esd11-697-2020.pdf> accessed 16 March 2023.
II. Climate change and its security implications
AndrewHarper,appointed asSpecialAdvisoronClimateActionby theUnitedNationsHigh Commissioner for Refugees in 2019, has pointed out that climate change “at least indirectly, drives conflict”.5 This is because climate change mainly affects those groups who already find themselves in a vulnerable position, for example, because they had to flee from armed conflict.6 Alarmingly, 90 per cent of refugees globally stem from countries that either do not have the necessary infrastructure to adapt to climate change or have already been negatively impacted by it.7 Climate-related degradation makes it extremely unlikely“ for those affected to be able to return to their homes. 8 Consequently, climate-induced displacement often leads to mass migration and puts a significant burden on the countries of destination, potentially exacerbating already existing resource scarcity.
It is important to note that climate change in and of itself does not exist in a vacuum. Instead, climate change influences pre-existing problems and can thereby contribute to or exacerbate armed conflict. Climate-related disasters, such as floods, droughts, heat waves or storms, can cause economic collapses and slow down agricultural productivity. Additionally, decreasing availability of natural resources due to climate change drives young adults to join armed groups, in an attempt to support themselves and their families.9 These circumstances significantly destabilise affected regions and can lead to armed conflicts, which may spill over across international borders. Particularly Pacific Island states are affected by climate change, threatening their very existence due to rising sea levels.10 Thereby caused land loss is expected to lead to territorial disputes and conflicts over natural resources.11 In addition, resulting (mass) migration due to a loss of territory can potentially have “serious implications for regional security andstability”.12 Itcan thusbe establishedthat climatechange, althoughprimarilybeing an environmental issue, carries with it “far-reaching economic, societal and political
5 ‘Conflict and Climate’ (UNFCCC, 12 July 2022) <https://unfccc.int/blog/conflict-and-climate> accessed 23 March 2023.
6 ibid.
7 ibid.
8 ibid.
9 ‘Climate Security Mechanism United Nations Briefing Note Toolbox’ (Climate Security Mechanism, New York 2020) <https://dppa.un.org/sites/default/files/csm_toolbox-1-briefing_note.pdf> accessed 12 May 2023
10 ‘The IPCC Report and the Climate Crisis in the Pacific’ (UNDP) <www.undp.org/pacific/blog/ipcc-report-andclimate-crisis-pacific> accessed 26 March 2023.
11 ibid.
12 Rita Parker, ‘Unregulated population migration and other future drivers of instability in the Pacific’ (Lowy Institute, 2018) <www.lowyinstitute.org/publications/unregulated-population-migration-other-future-driversinstability-pacific> accessed 26 March 2023.
ramifications”.13 Therefore, one can observe a process of securitisation of climate change as matter potentially forming a threat to international peace and security.
III. How has the Security Council addressed climate change in the past?
In 2007, the UNSC held its first-ever debate on climate change and its impact on peace and security, in which the attending delegations shared diverging views on the matter.14 Some delegations appreciated that the UNSC had opened itself to discuss climate change and, endorsed the idea that climate change poses a threat to peace and security.15 This was especially true for the Pacific Island states who argued that rising sea levels would endanger their sheer existence.16 On the other hand, some delegations, including China, questioned whether the UNSC was the right forum to deal with this matter.17 Instead, they referred to the General Assembly and the Economic and Social Council as the appropriate forums to address climate change, arguing that climate change was merely a matter of sustainable development, rather than an issue of peace and security.18
In 2011, the UNSC held its second debate on climate change, in which it was less divided and, by consensus, adopted a Presidential statement on the matter, although not of a legally binding nature.19 In this statement, the UNSC acknowledged that the effects of climate change may “aggravate certain existing threats to international peace and security”.20 Again, smaller island states emphasized the impacts that climate change could have on their territories through rising sea levels and called upon the UNSC to take appropriate action.21 While the UNSC was unanimous in pointing out that climate change may magnify already existing threats to peace and security, UNSC involvement on the matter was objected by numerous developing states.22 During the debate, members of the G77 and the Non-Alignment Movement warned that by handing over the issue of climate change to the UNSC, developed states would recuse themselves from implementing sustainable development in the first place and shift the
13 Shirley V Scott,‘The Securitization ofClimate Change inWorld Politics:How Close have We Come and would Full Securitization Enhance the Efficacy of Global Climate Change Policy?’ (2012) 21(3) Review of European Community & International Environmental Law 220.
14 UNSC 5663rd Meeting (17 April 2007) UN Doc S/PV/5663.
15 ibid.
16 Scott (n 13) 225.
17 ibid.
18 ibid.
19 ibid, p 226.
20 UNSC 6587th Meeting (20 July 2011) UN Doc S/PV/6587.
21 Scott (n 13) 226.
22 ibid.
responsibility of climate change mitigation onto the UNSC instead.23 Notably, at that time, the representative of Venezuela rejected any initiative to combat climate change besides the framework of the UNFCCC.24
The UNSC’s awareness and acknowledgement of climate change as a contributing factor to existing crises has been expressed in various Council resolutions. In 2017, in its Resolution 2349 concerning the situation in the Lake Chad Basin Region, the UNSC expressed its awareness of the “adverse effects of climate change” on the stability in the region.25 Connected to this, the UNSC underlined the need for “adequate risk assessments and risk management strategies by governments and the United Nations relating to these factors”.26 Similarly, in Resolution 2408, while recalling its Presidential statement from 2011, the UNSC also recognised the interconnectedness of climate change and its negative impact on the stability in Somalia.27 In a presidential statement concerning the situation in West Africa and the Sahel in 2018, the UNSC expressed its concern about the humanitarian crisis in the region and called for the development of long-term strategies by the United Nations (and national governments) to stabilise the region, in light of “drought, desertification, land degradation and food insecurity” caused or amplified by climate change.28 Similarly in Resolution 2423 concerning the situation in Mali, the UNSC acknowledged the impact of climate change on the region’s stability and called for a strategy to tackle the issue. 29 In these resolutions, the UNSC recognised that the consequences of climate change, such as food insecurity and droughts, have or may have contributed to pre-existing crises.30 However, it refrained from recognising climate change as a crisis on its own. 31 The Council reiterated this stance in a letter by the Permanent Representative of Sweden to the United Nations addressed to the UN Secretary-General, following a debate in July 2018. In this letter, the Swedish representative summarises the views shared in the debate, noting that climate change is “one issue in a web of factors that can lead to and exacerbate conflict”.32 However, the Council was hesitant to establish climate change as suchasmatter ofinternationalpeace andsecurity and arguedthat “theadverse impactof climate
23 ibid.
24 ibid.
25 UNSC Res 2349 (31 March 2017) UN Doc S/Res/2349.
26 ibid.
27 UNSC Res 2408 (27 March 2018) UN Doc S/Res/2408.
28 UNSC Presidential Statement 16 (10 August 2018) UN Doc S/PRST/2018/16.
29 UNSC Res 2423 (28 June 2018) UN Doc S/Res/2423.
30 ibid.
31 ibid.
32 UNSC Letter dated 30 July 2018 from the PermanentRepresentative of Sweden to the United Nations addressed to the Secretary-General UN Doc S/2018/749.
change does not automatically result in conflict” but that “it brings in its wake a range of direct and indirect consequences that shape security landscapes”.33 Thus, scarcity of food, water and other resources, as well as the displacement of populations, may lead to cross-border conflicts and thereby influence security issues. Nevertheless, these issues are to be seen separate from climate change itself.34 This distinction falls very much in line with the Council’s view that “the primary responsibility for addressing climate change clearly falls within the mandate of other United Nations bodies”, such as the UNFCCC.35 Therefore, the Council shall exclusively deal with the thereto connected security implications.36 By making this distinction, the Council removes itself from any pre-emptive climate change action, leaving this task to the responsibility of other bodies, and only considers itself concerned with the effects of climate change in cases where they interact with security issues. Some Council members pointed out that especially developing nations would bear the consequences of climate change and could therefore face existential threats through rising sea levels and food insecurity.37 Migration, caused by “storms, droughts, floods and desertification” as well as the endangerments of livelihoods such as fishing and farming have also been highlighted as a risk to stability.38 As with the 2007 debate, some members, questioned whether the UNSC was the right forum to discuss climate change and whether it had the mandate to take action in this area.39 Other members were of the opinion that “it is within the purview of the Council to consider all risks that have an impact on international peace and security, including climate change”.40 Overall, the UNSC recognised that climate change poses “one of the gravest current global challenges” and requires a deeper understanding of its security implications, in order for the UNSC to carry out its mandated functions.41
In 2021, a resolution co-sponsored by Niger and Ireland that would have integrated climate change and connected security implications into the United Nations (UN), conflict-prevention strategies failed to be adopted because of a negative vote by Russia, a P5 nation.42 This proposal would have enabled (peace-keeping) missions to carry the mandate of climate security and thereby tackle climate change somewhat directly, rather than only making reference to its
33 ibid.
34 ibid.
35 ibid.
36 ibid.
37 ibid.
38 ibid.
39 ibid.
40 ibid.
41 ibid.
42 UNSC 8926th Meeting (13 December 2021) UN Doc/SC/14732.
security implications, as done in previous resolutions.43 The Council members that opposed the draft, namely China, India, and Russia, expressed the view that this resolution would “encroach on the work” of the UNFCCC.44
Taking into account the resolutions adopted and the debates held by the UNSC in connection to the issue of climate change and its effects to date, it becomes evident that the UNSC is rather reactionary in its approach. In fact, the Council, until today, has yet to act proactively to tackle climate change and its security implications. Instead, it recognises the security implications climate change has on pre-existing (emphasis added) crises without regarding climate change as a crisis in itself. At the same time, some Council members still question whether the UNSC evenhasthe mandateto concern itselfwiththisissue.ThisshowsthattheCouncil isstilldivided in its stance as to whether climate change is merely an issue of sustainable development or whether it constitutes a threat to peace that would allow UNSCaction. It also raises the question of what would be necessary for the UNSC to regard climate change itself, rather than ‘only’ its consequences, as a trigger for its mandate?
IV. (How) can climate change itself trigger the mandate of the Security Council?
A. The mandate of the UNSC
After the devastation that the Second World War brought upon the world, a part of the internationalcommunity cametogether inSan Franciscoandfounded theUNin1945 toprevent another catastrophe of that scope.45 For this purpose, the 50 founding states mandated the UN to “maintain international peace and security, give humanitarian assistance […], protect human rights and uphold international law”.46According to Article 24 of the Charter of the United Nations, the organ primarily responsible for the maintenance of international peace and security is the UNSC.47 It is important to highlight that the notions of ‘international peace and security’ are not defined in the Charter, therefore leaving it up to the UNSC to determine which situations may or may not trigger its mandate.
43 ‘The UN Security Council and Climate Change: Tracking the Agenda after the 2021 Veto: Research Report: Security Council Report’ (Security Council Report), 1 <www.securitycouncilreport.org/research-reports/the-unsecurity-council-and-climate-change-tracking-the-agenda-after-the-2021-veto.php> accessed 2 March 2023.
44 ibid, 2.
45 ‘History of the United Nations’ (United Nations) <www.un.org/en/about-us/history-of-the-un> accessed 1 February 2023.
46 ibid.
47 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XV (UN Charter) art 24.
As the UN, and consequently, the UNSC, was mainly established to prevent another international armed conflict, the Charter provisions regarding the UNSC primarily relate to inter-state disputes and how the UNSC may address them. For this purpose, the UNSC may, for instance, mediate between the parties to a conflict or call upon them to settle their dispute by juridical means.
More generally, Article 34 of the Charter empowers the UNSC to investigate situations which may endanger international peace and security.48 Again, the wording of this provision leaves room for interpretation as to what kind of situations are included within the scope of the article, leaving a wide range of discretionary power to the UNSC. Under Article 39, the UNSC, following such an investigation, can establish that a situation, in fact, constitutes a “threat to the peace, breach of the peace, or act of aggression” and act accordingly.49 The UNSC may take measures to maintain or restore international peace and security excluding or including the use of force, pursuant to Articles 41 and 42 respectively.50 The resolutions that are adopted by the UNSC in this context, are binding upon UN Member States under Article 25.51 Notably, matters of exclusively domestic concern may not be addressed by the UNSC.52
In 1992, after the Cold War, the UNSC acknowledged that the mere absence of international armed conflict in itself does not guarantee international peace and security.53 It established that “non-military sources of instability in the economic, social, humanitarian and ecological fields” are equally able to constitute threats to peace and security and that the international community mustcommit itself toaddressthesethreatseffectively.54 Thismarksashiftin theway theUNSC has interpreted its mandate, moving from matters dealing with ‘classical’ breaches of peace and security in the form of armed conflicts to also include matters such as humanitarian crises. Connected to that, in Resolution 1674, the UNSC acknowledged that “peace and security and human rights are interlinked and mutually reinforcing”.55 Broadening the scope of its mandate to also include humanitarian crises and issues of human rights as possible threats to peace, the UNSC has opened itself to consider a wide range of issues other than armed conflict, potentially also including the issue of climate change.
48 ibid, art 34.
49 ibid, art 39.
50 ibid, arts 41-42.
51 ibid, art 25.
52 Mark Nevitt, ‘Is Climate Change a Threat to International Peace and Security?’ (2021) 42 Michigan Journal of International Law 538.
53 UNSC Note by the President of the Security Council (31 January 1992) UN Doc S/23500.
54 ibid.
55 UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674.
Owing to the ambiguous wording of the Charter as to what matters the UNSC may deal with, no provisions directly bar the UNSC from taking action in connection to climate change, as long as it establishes that it poses a threat or breach to international peace and security under Article 39 of the Charter.56 As GHG emissions and their impact on climate change, and therefore, their security implications, are not limited to state borders, it is uncontested that climate change is not a matter of purely domestic concern.57
The scholar Shirley V. Scott argued that the UNSC’s determinations as to which situations trigger Article 39 of the Charter are mainly driven by politics and, in principle, only limited by the voting behaviour of Council members.58 Thus, it seems that in legal terms, there is nothing preventing the UNSC from taking action in connection to climate change, other than the Council members’ willingness to declare climate change a “threat to the peace, breach of the peace, or act of aggression” under Article 39 of the Charter.59
Notably, some scholars argue that climate change could be regarded as a form of ‘use of force’, thereby falling under such a “breach of the peace, or act of aggression” under Article 39 of the Charter.60 More specifically, they argue that human behaviour contributing to climate change may threaten the sovereignty of states affected by climate change, such as that of island states which might be facing the loss of their territory. 61 Due to its consequences, such behaviour may qualify as use of force.62 Under this interpretation of the use of force, states responsible for excessive GHG emissions would be regarded as the aggressors against which the UNSC could potentially take action.
63 However, this view is rather controversial as states that are (at least party) responsible for such loss of territory through their GHG emissions do not necessarily intend this consequence .
64 In addition, this approach lacks large-scale support from legal scholars and corresponding state practice. Notably, as the P5 nations are among the
56 UN Charter (n 47) art 39.
57 Nevitt (n 52).
58 Shirley V Scott, ‘Climate Change And Peak Oil As Threats To International Peace And Security: Is It Time For The Security Council To Legislate?’ [2008] Melbourne Journal of International Law 495 <https://law.unimelb.edu.au/__data/assets/pdf_file/0005/1683221/Scott.pdf> accessed 2 March 2023.
59 UN Charter (n 47) art 39.
60 Harry van der Linden, Pacifism, Politics and Feminism (vol 330, Brill 2019) 121
61 ibid.
62 ibid.
63 ibid.
64 ibid.
heaviest emitters of GHGs, they would certainly veto any resolution aimed at coercing them or their political allies to mitigate their GHG emissions in such a way.65
Taking this into consideration, the only feasible option left is to include climate change in the mandate of the UNSC and categorise it as a “threat to the peace” under Article 39 of the Charter.66
In the past, the UNSC has, through its practice, widened the notion of “threat to the peace” to include situations in which the use of force or the threat thereof were not involved at all.67 In 2000, the UNSC passed Resolution 1308, which recognised that the HIV/AIDS pandemic constitutes a possible risk to international stability and security and called for action to address the issue on an international level.68 Similarly, in 2014, in Resolution 2177, the UNSC took action in response to the Ebola crisis, characterising it as a threat to international peace and security.69 The UNSC justified this action stating that the “peacebuilding and development gains of the most affected countries concerned could be reversed in light of the Ebola outbreak”.70 Notably, the Resolution’s preamble defined the Ebola outbreak itself as a threat to peace, as opposed to categorising it as a factor contributing to pre-existing crises.71 In these two resolutions, the UNSC has regarded situations not only involving a pandemic but also entirely absent of the use of force as threats to international peace and security by recognising that they negatively impact the stability of the regions affected. This reasoning could be applied analogously to climate change and its security implications. While armed conflict and the use of force are similarly absent, climate-caused issues, such as mass migration, loss of territory andresourcescarcity, may verywellbeconsidered as destabilisingfactorsthatnegatively affect international peace and security.
However, there is considerable resistance within the Council to going as far as regarding climate change as a threat to international peace and security, notably by P5 nations like China and Russia, could block resolutions on Council action with regards to climate change. They
65 ‘Global Emissions’ (Center for Climate and Energy Solutions) <www.c2es.org/content/internationalemissions/> accessed 3 March 2023.
66 Van der Linden (n 60).
67 Kirsten Davies and Thomas Riddell, ‘The Warming War: How Climate Change Is Creating Threats to International Peace and Security’ (2017) 30 Georgetown Environmental Law Review 47, 63.
68 UNSC Res 1308 (17 July 2000) UN Doc S/Res/1308.
69 UNSC Res 2177 (18 September 2014) UN Doc S/Res/2177.
70 ibid.
71 Ash Murphy, ‘The United Nations Security Council and Climate Change: Mapping a Pragmatic Pathway to Intervention’ (2019) 13 Carbon & Climate Law Review 50, 57.
have done so in the past, for instance, when voting against the draft resolution proposed by Niger and Ireland in 2021.72
Hence, it seems that what is barring the UNSC from taking climate action are not the legal restraints of the Charter, as the Charter actually provides the Council with a large degree of discretion in determining the situations in which it may act. Instead, it is the hesitancy of certain Council members to recognise climate change as an issue of international peace and security. As long as the P5 members of the Council have not reached consensus on declaring climate change a threat to international peace and security, any resolution on the matter is expected to be subjected to a veto.
B. Is the UNSC the right forum to address climate change?
As detailed above, some Council members regard climate change as an issue of sustainable development rather than an issue of international peace and security and question whether the UNSC is the right forum to handle the matter. These states refer to the UNFCCC as the primary vehicle for climate change mitigation measures.73 Anthropogenic climate change is caused by increasing levels of GHGemissions.74 Thus, the UNFCCC sets out an international cooperation network to reduce states’ GHG emissions to prevent “dangerous anthropogenic interference with the climate system”, notably through treaties such as the Kyoto Protocol and the Paris Agreement.75 The states opposing UNSC involvement in the issue of climate change are of the opinion that the UNFCCC and the mitigative measures laid down in the Kyoto Protocol and the Paris Agreement are sufficient in addressing climate change and that the UNSC would overstep the limits of its powers should it get involved.76 The UN General Assembly (UNGA), in 2009,
72 UNSC 8926th Meeting (13 December 2021) UN Doc/SC/14732.
73 ‘The UN Security Council and Climate Change: Research Report Security Council Report’ (Security Council Report, 21 June 2021), p 1 <www.securitycouncilreport.org/research-reports/the-un-security-council-and-climatechange.php> accessed 2 March 2023.
74 UNEP ‘Emissions Gap Report 2022’ (27 October 2022), p 12; ‘The UN Security Council and Climate Change: Tracking the Agenda after the 2021 Veto: Research Report: Security Council Report’ (Security Council Report, 30 December 2022), p 3 <www.securitycouncilreport.org/research-reports/the-un-security-council-and-climatechange-tracking-the-agenda-after-the-2021-veto.php> accessed 2 March 2023.
75 International Institute for Sustainable Development, ‘UN Framework Convention on Climate Change –UNFCCC’ <https://enb.iisd.org/negotiations/un-framework-convention-climate-change-unfccc> accessed 2 March 2023.
76 ‘The UN Security Council and Climate Change: Tracking the Agenda after the 2021 Veto: Research Report: Security Council Report’ (Security Council Report, 30 December 2022), p 13 <www.securitycouncilreport.org/research-reports/the-un-security-council-and-climate-change-tracking-theagenda-after-the-2021-veto.php> accessed 2 March 2023.
adopted a resolution on climate change and its security implications, in which it reaffirms the UNFCCC’s role as the UN’s key instrument for addressing climate change.77
However, in its 2022 report, the United Nations Environment Programme (UNEP) pointed out that states are failing to act on their commitment to sufficiently decrease GHG emissions by 2030, despite their legally binding obligation to do so, as accepted through the ratification of the Paris Agreement.78
In addition, a 2009 UNGA resolution “invites the relevant organs of the United Nations, as appropriate and within their respective mandates (emphasis added), to intensify their efforts in considering and addressing climate change, including its potential security implications”.79
Critics of UNSC involvement in climate change matters could see this resolution as justification to oppose UNSC involvement by emphasizing that the UNFCCC was created as the UN’s primary forum to address climate change, whereas the UNSC may only deal with matters of internationalpeaceandsecurity. Bynecessary implication, thiswould meanthat climatechange as such is not seen as a threat to international peace and security. As discussed above, states including India, China, and Russia regard climate change merely as an issue of sustainable development and rather recognise its effects in the context of pre-existing crises. Following this argumentation, climate change, as a sustainable development issue, falls under the mandate of the UNFCCC and not the mandate of the UNSC. Consequently, if the Council members agreed to regard climate change as a threat to peace and security, this issue would be included in the mandate of the UNSC. This is because, as detailed above, the Charter leaves it up to the UNSC to determine which situations trigger its mandate. This view is especially shared by island states whose very existence is endangered by rising sea levels, constituting a major security threat to their populations but also to neighbouring countries through mass migration, resource scarcity and connected tensions and possible conflicts.
Considering that the UNEP has pointed out the shortcomings of the UNFCCC and the Paris Agreement, this could be seen as an indication that the UNFCCC is unable to enjoin countries to successfully reduce their GHG emissions, and by extension, incapable of effectively addressing climate change. Therefore, one could argue that the UNSC should step in to address the shortcomings of the UNFCCC, in line with the respective mandates of the two organs, as stressed by the 2009 General Assembly resolution. The UNSC’s mandate would be triggered
77 UNGA Res 63/281 (11 June 2009) UN Doc A/Res/63/281.
78 UNEP ‘Emissions Gap Report 2022’ (27 October 2022), p 16.
79 UNGA Res 63/281 (11 June 2009) UN Doc A/Res/63/281.
by the security implications of climate change, whereas the UNFCCC would continue to exist as a general organ that compels states to mitigate GHG emissions, parallel to possible enforcement measures by the UNSC. Such involvement of the UNSC would not encroach on the UNFCCC’s area of responsibility, as the latter would remain the primary framework to reduce GHG emissions, while the UNSC’s mandate would be triggered when international peace and security are threatened because of climate change. This stance is supported by the UNFCCC’s narrow mandate which is mainly concerned with mitigating GHG emissions. Consequently, the UNFCCC framework is not equipped to deal with the security implications of climate change. Still, Pacific Island states see their security and sovereignty threatened by climate change. These issues cannot be remedied by the UNFCCC alone.80
It is important to note that, should the UNSC wish to get involved in climate action, it must first declare climate change to be a “threat to the peace, breach of the peace, or act of aggression” under Article 39 of the Charter, in order to bring climate change within the scope of its mandate.81
V. What measures could the Security Council take to address climate change, provided that it is able to trigger its mandate?
Provided that the members of the UNSC regard the Council as the right forum to deal with the security implications of climate change, the Charter provides the UNSC with a considerable amount of leeway as to what actions the UNSC may take to address the issue. Notably, a precondition for any such action is that the securitisation of the climate change is advanced enough to prevent a veto by any of the P5 nations, which at this point in time is not a given. The measures discussed in the following part of the article are unlikely to be introduced in the near future. However, they will nonetheless be examined to show the different ways in which the UNSC could, in theory, address climate change itself under its mandate, rather than only referring to its impact on pre-existing crises.
Consequently, in case the Council establishes under Article 39 of the Charter that climate change, because of its security implications, constitutes a ‘threat to the peace, breach of the peace,or actof aggression’,it maycompel theUNMemberStatestotakeaction.82 Specifically,
80 Davies and Riddel (n 67) 58.
81 UN Charter (n 47) art 39.
82 ibid.
the UNSC may take measures both excluding and including the use of force, pursuant to Articles 41 and 42 of the Charter.83
A. Pacific measures under Article 41 of the UN Charter
Article 41 of the UN Charter reads as follows:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.84
This provides the Council with a wide array of possible measures to coerce states to mitigate their GHG emissions, where it deems necessary.
A pertinent example for such pacific UNSC action is the Council’s anti-terrorism measures. In 2001, the UNSC passed Resolution 1373, which called for increased global cooperation by UN Member States, for example, by implementing and complying with relevant conventions.85 Additionally, states were obliged to take positive action to counter (the enabling of) terrorism in their respective jurisdictions.86 To monitor compliance with the resolution, a committee was established, to which states had to submit updates on the implementation of the required measures.
87 The UN’s counterterrorism regime consists of four pillars, namely, addressing the conditions conducive to the spread of terrorism, measures to prevent and combat terrorism, measures to build states’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in that regard, and, lastly, measures to ensure respect for human rights for all and the rule of law as the fundamental basis for the fight against terrorism.88 Similar action could be taken in regard to climate change. Firstly, the UNSC could call upon states to respect their commitments laid down in relevant conventions, such as the Paris Agreement, to mitigate their GHG emissions and to report on the implementation of a (new) resolution that requires them to do so. Article 41 of the Charter enables the UNSC to impose economic sanctions as pacific measures to remedy threats to international peace and security. These could be
83 ibid, arts 41-42.
84 ibid.
85 UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373.
86 ibid.
87 ibid.
88 United Nations, ‘UN Global Counter-Terrorism Strategy’ <www.un.org/counterterrorism/un-global-counterterrorism-strategy> accessed 26 March 2023.
introduced to coerce states to comply with their GHG emission mitigation commitments under the UNFCCC. Furthermore, states could be obliged to report on the implementation of their commitments. Such an obligation would allow for scrutiny by the public, and, in the event that a state fails to meet its requirements, put pressure on governments to sufficiently decrease their GHG emissions. Secondly, following the example of the UN’s counterterrorism regime, the UNSC could compel states to directly introduce measures to mitigate GHG emissions, even beyond their commitments under the UNFCCC. This is because the resolutions adopted under Chapter VII of the Charter supersede UN Member States’ obligations under pre-existing international agreements.89
It could also be imagined to compel national governments to introduce more invasive measures, requiring their citizens to adapt their lifestyles to emit less GHGs, such as a ban on long-distance recreational travel or the rationing of resources, as in wartime. 90 Arguably, wartime-like restrictions on consumption during times of peace will be faced with significant resistance from national governments, as well as from civil society.
Article 41 of the UNSC also authorises it to establish such subsidiary organs as it deems necessary to fulfil its mandate. Taking advantage of this, the UNSC has established various international tribunals, such as the International Criminal Tribunal for Rwanda, called into existencebyResolution 955.91 Similarly,theCouncil couldestablishcriminal climate tribunals. However, there can be no punishment without crime. In recent years, the notion of including ecocideas an international crime hasbeengrowing in popularity.92 Ecocidehasbeen tentatively defined by scholars as “ecological damage which is both serious and either extensive or lasting”.93 Should states agree to introduce international legislation that codifies ecocide as an international crime, a climate tribunal could be established by the UNSC to put natural and legal persons to trial for their crimes against the environment, including the contribution to anthropogenic climate change and its consequences. A proposal for an offence of ecocide in relation to climate change has been made, which describes the offence as the state-corporate crime of commission with respect to failing to take action to mitigate GHG emissions or to “decarbonize the economy”.94 Notably, it is questionable whether states are willing to extend
89 UN Charter (n 47) art 103.
90 Scott (n 13) 224.
91 UNSC Res 955 (8 November 1994) UN Doc S/RES/955.
92 Shirley V Scott,Patrick J Keenan,Charlotte Ku,‘TheCreationofa ClimateChangeCourtorTribunal’inShirley V Scott (ed), Climate Change and the UN Security Council (Edgar Elgar Publishing 2018) 68.
93 ibid.
94 ibid.
international crimes to include the notion of ecocide in the near future. Alternatively, the UNSC could also establish a court with the objective of “clarifying legal obligations of states and resolvingmattersoffact and lawwith respectto the ParisAgreement”.95 Thiswouldbepossible without having to introduce any additional international legislation, as the legal standard relied on, in this case the Paris Agreement, already exists. Such a court would not encroach on the UNFCCC’s mandate, which is one of the points of criticism raised by states opposing UNSC involvement in climate action, as the Paris Agreement is part of the UNFCCC. This is because theUNFCCC itselfdoesnotattachto it alegalbody thatclarifiesstates’obligationsand liability under relevant agreements.
By taking these measures, the UNSC could possibly coerce states (and thereby also their citizens) to mitigate their GHG emission and thereby address anthropogenic climate change proactively, rather than just reacting to its consequences.
B. Non-pacific measures under Article 42 of the UN Charter
In case the pacific measures under Article 41 of the Charter do not bring about the desired results, Article 42 authorises the Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”.96 This may be done by “demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”.97
Considering that it is absurd to argue that states’ GHG emissions are caused with the aim of contributing to global warming, it is highly unlikely that the Council will designate any state as an aggressor necessitating a military intervention to mitigate GHG emissions. Furthermore, it can be argued that using military force to coerce a state into mitigating its GHG emissions is rather counterproductive, as armed conflict is itself associated with increased GHGemissions.98
Additionally, as mentioned earlier, the P5 nations of the Council are amongst the largest GHG emitters, or at least allied with them, therefore making the use of a veto for a resolution on climate change under Article 42 very likely.
Taking this into consideration, military action through the UNSC as a measure to address climate change must be regarded as highly unrealistic.
VI. Conclusion
In its current practice, the UNSC has not addressed climate change in and of itself but has made reference to its effects on international security affecting pre-existing crises. This is because there is considerable resistance by various Council members, including some of the P5 nations, to label climate change as a threat to peace. They regard climate change as an issue related to sustainable development and are concerned that UNSC involvement would overstep the Council’s mandate and encroach on the work of the UNFCCC as the UN’s primary organ to address climate change. 99 This approach refrains from addressing climate change proactively, as it is exclusively concerned with the consequences of climate change.
The wording of the UNCharter allows for awide range of issuesto be considered as a “threat to the peace, breach of the peace, or act of aggression”. One possible way to integrate climate change in the UNSC’s mandate would be to regard state’s excessive emission of GHGs as use of force. This stance remains highly controversial and lacks precedent realisation. A more realistic approach is to consider climate change as a threat to the peace because of the negative effect it may have on global peace and security. This approach would be in line with the UNSC’s past practice of declaring situations involving pandemics, although absent any armed conflict or use of force, as threats to peace, simply due to their negative impact on international peace.
100
If the Council agrees to designate climate change as a threat to peace, it may take pacific action, as well as measures involving the use of force. The latter is a rather unrealistic redress for climate change, as it could lead to increasing GHG emissions and thereby be contrary to the cause.101 In addition, it would be rather controversial to regard a state as an aggressor, requiring military intervention, on the basis of its GHGemissions, as the emission of GHGs is notdirectly linked to an intention to bring about the consequences of climate change. Such a resolution is also highly likely to be vetoed by at least one of the P5 nations in the Council. It would therefore be less controversial and more significantly realistic to address climate change by using the pacific measures available to the UNSC under Article 41 of the Charter. Under this Article, the Council may, by way of a resolution, order states to respect their GHG emission reduction
99 Scott (n 13) 225.
100 UNSC Res 1308 (17 July 2000) UN Doc S/Res/1308.
101 Claußen (n 98).
commitments and establish an oversight committee for such a resolution, as it has done for instance within the framework of counterterrorism action.102 Furthermore, because the mandate enables the UNSC to establish subsidiary organs where appropriate, the Council could theoretically establish a climate tribunal to hold legal and natural persons accountable, provided that states establish ecocide as an international crime. 103 Additionally, the UNSC could establish a court on the basis of the agreements under the UNFCCC to clarify legal obligations under for instance the Paris Agreement. This would UNFCCC measures to coexist with UNSC enforcement. These measures could also positively affect public scrutiny of states’ action, as governments could be held accountable by their populations for their shortcomings which are publicly denounced by international bodies.
Overall, it is not the legal constraints of its mandate that prevent the UNSC from engaging in preventive climate action. The Charter leaves a large degree of discretion to the Council in relation to the decision of whether or not it may take action in a given situation. Therefore, the threshold that needs to be passed in this respect is rather of political nature. Further securitization of the issue of climate change is needed to convince all member states of the Council,particularly theP5nationswhichhavevetopower, toviewclimate change asasecurity issue and not only one of sustainable development. While there is agreement in the Council on the fact that climate change may have an impact on pre-existing crises, there is disagreement on the question of whether it is a security issue in and of itself.104 This leads to some Council members questioning whether climate change falls within the mandate of the UNSC, as the UNSC only deals with matters of international peace and security, and not with matters related to sustainable development.105 States critical of UNSC involvement in climate action see the UNFCCC as the appropriate body to address climate change.106 Such a view precludes the UNSC from taking action against the causes of climate change, instead limiting the UNSC to only deal with its consequences in the form of its security implications.
The consequences of climate change are becoming increasingly visible. As global temperatures rise, so do associated humanitarian disasters carrying serious security implications. It is, therefore, perhaps only a matter of time before the Council agrees to declare climate change a threat to the peace and starts addressing it pre-emptively and through coercive
102 United Nations, ‘UN Global Counter-Terrorism Strategy’ (United Nations) <www.un.org/counterterrorism/un-global-counter-terrorism-strategy> accessed 26 March 2023.
103 UNSC Res 955 (8 November 1994) UN Doc S/RES/955.
104 UNSC Res 2423 (28 June 2018) UN Doc S/Res/2423.
105 Scott (n 13) 225.
106 ibid.
measures under Chapter VII of the Charter in order to globally and effectively mitigate GHG emissions.
