Abortion in Latin America and the Caribbean The Legal Impact of the American Convention on Human Rights
Ligia De JesĂşs Castaldi
University of Notre Dame Press Notre Dame, Indiana
University of Notre Dame Press Notre Dame, Indiana 46556 undpress.nd.edu Copyright Š 2020 by the University of Notre Dame All Rights Reserved Published in the United States of America Library of Congress Cataloging-in-Publication Data TK
Introduction
By ratifying the American Convention on Human Rights, most Latin American and Caribbean nations have undertaken an international obligation to legally protect every person’s right to life from the moment of conception.1 Article 4(1) of the convention has been identified by international human rights experts as the most emphatic recognition of the prenatal right to life to date in international human rights law:2 “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” The recognition of a right to life from conception in the American Convention seems to have been distinctly inspired by a Catholic moral tradition of respect for prenatal life and a Latin American Catholic understanding of human rights law in general.3 Direct and indirect references to the Catholic faith were made during the convention’s drafting stages. The San José Conference, where the convention’s text was adopted, began with opening speeches by the Costa Rican president and the first chief justice of the Inter-American Court of Human Rights, both of which invoked the Christian, particularly Catholic, inspiration of the human rights movement in Latin America.4 Prior to the San José Conference, the InterAmerican Commission on Human Rights (IACHR) had acknowledged the moral significance of the prenatal rights provision for states parties 1
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and cited “reasons of principle” to swiftly reject a proposal to remove the provision from the treaty text.5 Since the adoption of the treaty text including a prenatal right to life from conception in 1969, twenty-three countries have ratified the American Convention, namely Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.6 The United States is a signatory but not a party: it signed the convention in 1977 but has never ratified it.7 On the other hand, it has not as of 2019 withdrawn or expressed an intent to withdraw its signature. In the last few decades, however, international human rights bodies have repeatedly urged Latin American and Caribbean nations to decriminalize and provide access to abortion, notwithstanding the American Convention’s recognition of a general state duty to legally protect prenatal life. United Nations treaty bodies have repeatedly told Latin American and Caribbean states that international human rights treaties require the creation of abortion rights, as explained in chapter 6, and that legally authorizing abortion would reduce maternal mortality rates in the region.8 The argument has been refuted in recent years by a number of medical studies that have found that legalization or availability of abortion is not one of the most relevant factors in maternal mortality reduction and that there is no correlation between restricted access to abortion and high maternal mortality rates.9 For instance, Chile, a country that fully banned abortion for over a hundred years consistently had until 2017 the lowest maternal mortality rate in Latin America and the Caribbean. The United States, on the other hand, has the highest maternal mortality rate in the developed world, even though ample legal access to abortion—and even public subsidies—have been provided nationwide since 1973.10 Proposals to abolish prenatal life protections and to create a legal entitlement to abortion have also been advanced at the national level, and regionally through the Inter-American human rights system. Starting with the Inter-American Commission on Human Rights’ Baby Boy report in 1981, a series of abortion-related hearings and petitions have provoked reports promoting decriminalization of abortion in several Latin American and Caribbean countries, as described in chapter 1. The Inter-American
Introduction
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Court then suggested in 2012 that decriminalization of abortion, especially at an early gestational age, may be legally compatible with the convention, in the Artavia v. Costa Rica judgment dicta, as discussed in chapter 2. The judgment, which cited Roe v. Wade along with German and Spanish high court judgments on abortion, suggested a desire to identify with Western European and North American feminist visions of human rights to the detriment of the prenatal right to life as recognized by states parties to the American Convention.11 To date, no state party to the American Convention has fully decriminalized abortion despite a significant prevalence of advocacy for the creation of abortion rights in international human rights politics. Such advocacy has nevertheless deeply divided nations and individuals within the Inter-American human rights system, forcing them to take a position on a single issue that, since the 1970s, seems to have taken precedence over all other feminist causes. It has pitted believers against nonbelievers, liberals against conservatives, nationalists against globalists both in states parties to the American Convention and within the Inter-American system of human rights itself. It has raised larger jurisprudential questions regarding interpretation of international human rights treaties, how new rights are created, and who has the authority to do so—questions explored in this book. At the national level, advocacy for abortion rights has led to separation of powers issues and has brought constitutional procedures and federalism principles into question, as illustrated here. The IACHR and the Inter-American Court are now at what may be a turning point in history, one where they may move forward with creating abortion rights or reverse course. Scholars have noted the state of uncertainty as to the scope of the rights of the unborn child in the InterAmerican human rights system and as to the compatibility of decriminalization of elective abortion with the American Convention.12 The InterAmerican Court has never directly ruled on the issue, but the commission will probably deal with those questions as it continues to hear petitions challenging abortion bans in states parties to the American Convention, such as those described in chapter 1.13 The Inter-American Court may thus be required—sooner rather than later—to address claims demanding the creation of abortion rights in one or more states parties to the American Convention.
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This book proposes a nonrestrictive, good-faith interpretation of the convention that would comply with international treaty interpretation rules applied by the Inter-American Court of Human Rights, namely ordinary/textual interpretation; evolutive, systemic, and historic interpretation; and the pro homine rule, established by the Vienna Convention on the Law of Treaties (VCLT) and article 29 of the American Convention on Human Rights.14 It also carries out a comparative analysis of interpretation of article 4(1) of the American Convention by Inter-American human rights bodies, on one hand, and by states parties to the convention, on the other. The book argues that only a nonrestrictive interpretation could be compatible with the object and purpose of the treaty, which, as evidence collected in this book demonstrates, is that of granting the unborn child broad and general, not exceptional, legal protection from elective abortion.
O N E
The Inter-American Commission on Human Rights’ Inconsistent Treatment of the Prenatal Right to Life
The American Convention on Human Rights in article 4(1) establishes an international duty to legally protect a prenatal right to life from the moment of conception: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”1 Twenty-three nations—that is, the majority of Latin American and Caribbean members of the Organization of American States (OAS)—are legally bound by this provision and have made no reservations to it: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.2 This chapter examines the inconsistent treatment of prenatal rights and abortion by the Inter-American Commission on Human Rights (IACHR), one of two human rights bodies created by states parties to oversee implementation of the American Convention on Human Rights. The chapter looks at the IACHR’s human rights promotion activities as well as its individual complaints mechanism. Starting with Baby Boy v. United States, the most influential IACHR report, the chapter surveys all 5
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Inter-American Commission of Human Rights reports on individual complaints that directly or indirectly relate to abortion and prenatal rights, including but not limited to Paulina Ramírez v. Mexico, PM 43-10 “Amelia,” Nicaragua, and Asunto Niña Mainumby respecto de Paraguay, Medidas Cautelares No. 178/15. Each report’s merits, legal weight, and legal effects are also considered.
Inter-American Human Rights Bodies
States parties created two human rights bodies to monitor the American Convention: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights.3 The commission and the court have similar names but very different powers, mandates, and resources. The court is a regional international human rights tribunal created by the OAS to adjudicate individual complaints against states parties to the American Convention. It also issues advisory opinions and exercises oversight functions over the commission’s practices.4 The court’s treatment of abortion and prenatal rights is described in chapter 2. The United States is seat to the OAS and the commission in Washington, DC, and also has, at different times, been the commission’s main donor. Its contribution of about $3 million to the IACHR in 2016, for instance, covered over half of the commission’s budget.5 The commission operates on a larger budget than the court (e.g., an estimated $5.3 million v. $2.7 million annually in 2016),6 in part due to its significantly larger case load. In addition, both the Inter-American Court and Inter-American Commission have received considerable funding from nonmember states to the OAS, primarily European Union countries.7 Funding by observer states has raised questions about the impact that foreign interests or visions of human rights may have on the Inter-American system.8 Both bodies are seeking to more than double their budgets and secure greater funding on the part of OAS member states.9 In 2016, both InterAmerican human rights bodies drew up a proposal which, if implemented, would make OAS member states primary contributors to the court and the commission’s proposed annual budgets of 7 and 11 million US dollars, respectively.10 The president of the court and the president of the commis-
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sion both indicated that the proposal would give Inter-American human rights bodies “greater autonomy and independence.”11 Other Inter-American advisory bodies on human rights issues include the Inter-American Human Rights Institute (IIDH), a specialized academic organization charged with promoting human rights education in the Americas; the Inter-American Commission of Women (CIM), a “principal forum for debating and formulating policy on women’s rights and gender equality in the Americas”; and the MESECVI, “a systematic and permanent multilateral evaluation methodology” between the states parties to the Belém do Pará Convention and a committee of experts.12 Reports and documents by these bodies will not be analyzed in any depth here, given their advisory, nonlegal nature, as opposed to the court and the commission’s judicial and quasi-judicial authority. Political trust in the Inter-American human rights system on the part of member states has varied within the last few decades, which may have affected the states’ financial support thereof.13 Criticism of the commission has come from both governments on the left and on the right. In 2019, for instance, Argentina, Brazil, Chile, Colombia, and Paraguay filed a joint declaration with IACHR executive secretary Paulo Abrão, in which they reaffirmed their commitment to the Inter-American human rights system but also expressed their concern for an apparent lack of compliance with some basic principles established by the convention.14 Among other things, states called the Inter-American Commission and the court to respect national constitutional law and apply the principle of subsidiarity of Inter-American bodies and proportionality of reparations. In the past, several states, like Colombia, Brazil, and Venezuela, questioned the powers and procedures of the IACHR.15 In Brazil’s case, the move purportedly came as a reaction to the commission’s precautionary measures in the Belo Monte Hydroelectric Plant matter, an environmental controversy that seemed to affect the nation’s economic interests.16 In addition, Trinidad and Tobago denounced the American Convention in 1998, arguing that the commission’s procedural delays in hearing petitions on capital cases interfered with the nation’s application of the death penalty in its jurisdiction.17 Peru briefly denounced the convention in 1999, during the Fujimori administration. It withdrew its recognition of the contentious jurisdiction
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of the Inter-American Court in reaction to the Castillo Petruzzi judgment, which attempted to invalidate the conviction of four members of a guerrilla/group for terrorism and treason in military jurisdiction.18 However, the next administration rescinded that withdrawal in 2001, stating that the denunciation should be deemed as never having occurred.19 Venezuela denounced the American Convention on Human Rights and withdrew from the Inter-American Court’s jurisdiction in 2012, alleging politically motivated bias against Venezuela’s chavista government on the part of Inter-American human rights bodies.20 Among other things, Venezuela argued that the court and the commission demonstrated political bias by hearing petitions and cases against Venezuela where no domestic remedies had been exhausted (such as D az Peña v. Venezuela before the court) and by giving fast-track consideration to petitions against the chavista government (e.g., cases brought by journalists R os, Perozo, and others).21 Venezuela also condemned the commission’s position during the 2002 attempted coup d’état, where IACHR executive secretary Santiago Cant n allegedly recognized de facto authorities and the IACHR rejected requests for precautionary measures in favor of President Hugo Chávez, who had been kidnapped and remained incommunicado.22 An important factor in withdrawal from the Inter-American human rights system seems to have been the Inter-American Court’s judgment in favor of Raúl D az Peña,23 a “convicted terrorist,” the state indicated, who had carried out bombings on Venezuelan diplomatic missions in Colombia and Spain and for whom the court requested an improvement of detention conditions even though he was a fugitive at the time.24 The communication denouncing the convention, signed by then minister Nicolás Maduro, characterized the court and the commission’s interventions as politically motivated and as a systematic transgression and manipulation of the convention’s norms and spirit and made a point of explicitly withdrawing its acceptance of the Inter-American Court’s contentious jurisdiction.25
The Commission: A Sui Generis, Quasi-Judicial Regional Human Rights Body
The Inter-American Commission on Human Rights is a sui generis, quasijudicial regional human rights body, not a court, with multiple functions
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established by the American Convention, the IACHR Statute, and its rules of procedure, including human rights advocacy and promotion in the region as well as reception of individual petitions against states parties to the American Convention.26 Modeled on the now defunct European Commission of Human Rights, the IACHR is headquartered in Washington, DC, and is composed of seven part-time members serving in their individual capacity, not as representatives of their national state.27 In the context of its petition system, the Inter-American Commission has the power to issue nonbinding reports and recommendations for states parties on alleged individual human rights violations and has exclusive standing to take individual cases before the Inter-American Court.28 The commission may also issue precautionary measures and request provisional measures before the court. It may mediate friendly settlements between states and alleged victims of human rights violations. Given the two-tiered individual complaint system, which requires petitions to go to the commission before they can be heard by the InterAmerican Court, the commission’s practical role can be that of a filter to the Inter-American Court, often providing an opportunity for alternative dispute resolution between petitioners and their state before the complaint reaches the court. Friendly settlement agreements have been said to have a higher compliance rate than any other reports or resolutions issued by the commission.29 The implementation of other reports, however, remains generally weak until cases reach the Inter-American Court for a binding decision.30 When a friendly settlement fails, the IACHR may submit a contentious case to the court; the court will then issue a legally binding judgment against the state party to the dispute.31 The commission may also request an advisory opinion from the court on the interpretation of the American Convention, which the court may hear under its advisory powers.32 Effects and authority of the Inter-American Court’s judgments and advisory opinions are discussed in chapter 2. The commission’s authority is political rather than legal in nature. As a result, it may simultaneously play the role of victim’s advocate, factual investigator, mediator, prosecutor, and adjudicator, which has led many to question the IACHR’s credibility and impartiality in certain cases.33 Aside from states parties, only the commission may bring lawsuits before the court; individuals having no standing.34 The Inter-American Commission
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itself, however, does not have adjudication faculties, and its reports are not controlling on decisions of the court; in some instances, the InterAmerican Court has in fact rejected the commission’s claims, reasoning, or recommendations.35 Unlike Inter-American Court judgments, the commission’s admissibility and merits reports and their corresponding recommendations in relation to individual petitions are not binding on states parties, as indicated by the Inter-American Court in Caballero Delgado and Santana v. Colombia and others: “[A] recommendation does not have the character of an obligatory judicial decision for which the failure to comply would generate State responsibility.”36 The court has, however, indicated that a state party to the American Convention “in accordance with the principle of good faith . . . has the obligation to make every effort to comply with the recommendations of a protection organ such as the Inter-American Commission.”37 The Commission’s Abortion-Related Advocacy
The commission originally defended the American Convention’s prenatalright-to-life provision in article 4(1) during the convention’s preparatory work (travaux préparatoires). During the treaty’s drafting stages Brazilian commissioner Carlos Dunshee de Abranches proposed deleting the entire phrase recognizing a right to life from conception from the draft convention, but the commission refused to do so “for reasons of principle.”38 Some commission reports have subsequently interpreted article 1 of the American Declaration of the Rights and Duties of Man (American Declaration) and article 4(1) of the American Convention as incompatible with at least some elective abortions, particularly where the mother’s motivation to abort was merely economic, that is, for poverty.39 Such abortions, the commission has said, constitute a “patent and grave violation of human rights.” In recent years, however, the commission has urged countries to legalize abortion at least on the so-called tres causales (three grounds), namely the abortion of those conceived in rape, abortion of those with genetic disabilities (eugenic abortion), and abortion in cases where the pregnancy poses a risk to the life or health of the mother.40 Advocates for abortion rights before the IACHR have identified decriminalization of abortion under three grounds as a gradual or incremental step toward full decrimi-