Right to Abortion: Rights by Stealth

Rights by
Stealth
The Role of UN Human
Rights Treaty Bodies in the
Campaign for an International
Right to Abortion

Douglas Sylva, Ph.D.
and Susan Yoshihara, Ph.D.
Catholic Family & Human Rights Institute

 

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Abstract: In the mid-1990s, a group of UN officials and nongovernmental
organizations gathered to formulate a strategy to promote a controversial
international social policy agenda by reinterpreting existing human rights
treaties to give them new meanings. At the heart of this strategy was a fourstep
process to use the six UN human rights treaty monitoring bodies and an
interlocking network of UN agencies, UN officials, and NGOs to create an
international right to abortion. In the decade that has followed, UN member
nations have allowed the strategy to develop to an extensive degree, despite
the fact that it undermines their own laws. This study examines the reasons
why the process has been able to advance, and analyzes the way the strategy
has undermined the treaty monitoring system and challenged the credibility
of the international human rights regime.

 

TABLE OF CONTENTS
Preface……………………………………………………………………………………….v
Abstract and Introduction………………………………………………………………1
Part I
What Happened at Glen Cove………………………………………………………..4
The Four-Step Strategy…………………………………………………………………8
Part II
Changing Soft Norms into Hard Law: The Role of NGOs……………….. 14
A Legal Plan for New Rights by Stealth ………………………………………… 16
Targeting Children…………………………………………………………………….. 19
Part III
Elevating the Conferences—
CEDAW as Proxy for Cairo and Beijing…………………………………………. 21
Building Mutually Reinforcing Networks—
Experts, NGOs,UN Agencies, and Donors……………………………………… 24
Removing Treaty Body Autonomy and
Reinterpreting Existing Rights…………………………………………………….. 27
Maternal Mortality—Hard Cases and Double Speak………………………… 30
Circumventing Democracy………………………………………………………….. 33
Part IV
Implications and Policy Recommendations…………………………………….. 34
Figure 1: The UN Human Rights Treaty System………………………………..6
Figure 2: Reporting Cycle for UN Human Rights Treaties……………….. 25

 

PREFACE
Not a single UN human rights treaty mentions abortion. When UN
member states went to the negotiating table to meticulously craft the language
of the eight international human rights treaties, some of those nations had
legalized abortion and many more had not. That is why these treaties are
silent on the subject. That is why it is so surprising when last year Colombia’s
high court decided to legalize abortion, basing their decision largely on the
reasoning that UN human rights treaty bodies said that the treaties guaranteed
a woman’s right to abort her unborn child.
Even for those who follow the abortion issue closely, it is puzzling that
a high legal body in any nation could so profoundly misunderstand international
treaties. More confounding still is how laws so central to a nation’s
culture and religious heritage could be changed by misunderstanding. What
explains this?
In this white paper, Douglas Sylva and Susan Yoshihara help us understand.
The authors show that rather than an episodic miscalculation by
one nation’s high court, the Colombia decision is the result of more than a
decade of careful planning and operations by “a tenacious network of actors”
who believe in abortion rights. The self-proclaimed “stealth strategy”
was formally begun at a round table meeting in Glen Cove, New York in
1996. There, participants from the UN Population Fund (UNFPA), the office
of the High Commissioner on Human Rights and select NGOs met
to articulate a comprehensive strategy they said would “determine how the
right to abortion-on-demand could be found in universally accepted norms
such as the right to life.”
At the heart of the strategy are the UN human rights treaty monitoring
bodies, especially those monitoring the Convention on the Elimination of
Discrimination Against Women, the Convention on the Rights of the Child
(CEDAW), and the International Covenant on Civil and Political Rights.
Sylva and Yoshihara show that in order to make the strategy work, UN
officials and NGOs have had to convince member states, treaty body experts
and other participants in the system, that these “treaties are not fixed as
negotiated, but rather are living, mutable documents.” In essence, they must
convince participants that existing human rights can be re-interpreted to
include a right to abortion. “Rather than seeking to sway voters directly,” the
authors note, abortion proponents “seek mastery of the complex and littleknown
inner working of the international human rights system,” arguing
that “‘reproductive and sexual health rights” are necessary components of a
host of already existing human rights.”

And this is a point that several prominent UN experts have made recently.
The UN is often portrayed as having increased credibility and legitimacy in
international law precisely because of the perception that it is a democratic
body – one imbued with the will of member states. As this white paper
shows, the treaty bodies are emblematic of a system that is opaque, complex,
and largely unaccountable to any member state.
According to Sylva and Yoshihara, the current situation seems untenable
since it undermines the very human rights system that abortion proponents
need to promote their agenda. Like the critical legal studies movement and
radical feminist movement from which the campaign for an international
right to abortion emerged, the “stealth” strategy is elitist. It is well-funded
by large American foundations and NGOs inside the network, but it enjoys
very little grass roots support. Not surprisingly, the movement to focus
the UN women’s agenda on abortion rights has utterly failed to help poor
women, or raise the GDP of a single developing nation. And even as it has
succeeded in promoting a feminist agenda in rich countries, the demographic
winter in Europe and Japan is causing many to reassess its long term effects
on developed economies and societies.
So what will happen? There has been some good news recently. Some
member states have stood up to the committees during their annual reviews.
The Pakistani delegate told the CEDAW committee in their 2007 review that
“abortion is murder once the fetus in conceived,” and defended its pro-life
laws. The delegate from Sierra Leone told the same committee, “Children
are a gift from God,” when that country was pressed to liberalize abortion.
If more nations insist on the proper understanding of these international
human rights laws and reject the persistent misinterpretations of the laws by
the committees, the “stealth” strategy may fail after all. Only time will tell
how many nations will follow this brave and controversial course.
For any policy maker, scholar or citizen seeking clear and readable insight
into the “complex inner workings” of this system and the high stakes of that
outcome, this white paper is sure to provide a valuable guide.
Austin Ruse
President
Catholic Family and Human Rights Institute

 

Right to Abortion: Rights by Stealth
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