International law is premised on the doctrine of the
sovereign equality of all States. One logical consequence of sovereign equality
is that States are free to act in the absence of a direct prohibition.
This principle was most famously articulated in the
landmark 1927 S.S. Lotus case. In that case, the Permanent Court of
International Justice stated:
International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.
Despite the claim of many international law scholars that
this principle no longer represents the status of modern international law, the
International Court of Justice indirectly confirmed the Lotus principle in
its 2010 Advisory Opinion on the legality of Kosovo's unilateral declaration of
independence. Thus, where international law is silent, States are free to act.
International law is wholly silent on a right to abortion. Even the
liberal European Court of Human Rights, in A, B, & C v. Ireland,
recently recognized that the European Convention on Human Rights grants no
right to abortion.
For more on the jurisprudence of the ECHR, see S. Ernie Walton, Preserving the European Convention on Human Rights: Why the UK's Threat to Leave the Convention Could Save It, 42 Cap. U. L. Rev. 977 (2014).
Accordingly, Amnesty International is wrong. There is no
right to abortion under international human rights law, and in the absence of
this prohibition, Ireland is free to outlaw abortion and grant unborn children
the right to life. And from a purely logical standpoint, the absence in
international law of an affirmative right to life for unborn children in no way
translates into a positive right to abortion. Lack of X does not equal Y; it simply
equals not X. This is particularly true under international law, where
"restrictions upon the independence of States cannot [] be
presumed."
To the natural law school of thought that would disagree
with this positivist characterization of the international legal
system, natural law only confirms, not undermines, this argument. Modern
international law finds its most recent roots in the United Nations Charter,
created after World War II. Much of the Charter and its progeny (e.g., the
Universal Declaration of Human Rights, the Genocide Convention) were based in
natural law and specifically formulated to prevent another Nazi Germany,
where the utter lack of respect for human life was at its zenith.
Accordingly, much of post-World War II international law embodied the notion
that the international community should err on the side of life, even at the
expense of State sovereignty. While States were sovereign, natural law
mandated that certain things were off limits for all States.
Thus, to the extent that there is any room for debate over
whether the unborn are humans, entitled to the same right to life under
international law as the born, natural law and the modern roots of
international law err on the side of life. Lindsay Jonker, law clerk to the honorable
D. Arthur Kelsey, Virginia Supreme Court Justice, explained this best in her
article, Learning from the Past: How the Events that Shaped the
Constitutions of the United States and Germany Play out in the Abortion
Controversy, 23. Regent U. L. Rev. 447 (2011). Jonker compared the U.S.
Supreme Court's abortion jurisprudence to that of the German Supreme Court,
specifically examining how the destruction of life under the Nazi regime
influenced the German Supreme Court in its abortion jurisprudence to err on the
side of the unborn. Jonker stated:
Without our own [U.S.] history to inform us of the
consequences of massive violations of human dignity, can the United States not
learn from the Germans that, out of respect to life, the fetus must be attributed
personhood that merits significant State protection, at any term of a
pregnancy?
In other words, history and natural law teach us to err on
the side of life where there is any doubt. Germany learned this lesson, and
modern international law largely agrees. Accordingly, abortion is not only not
a right under positive nor natural law-based international law, but the
international community would be well within legal limits, positive and
natural, to affirmatively recognize a right to life for the unborn.
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S. Ernie Walton teaches International Law at Regent University School of Law and also serves as the Administrative Director of
Regent Law's Center for Global Justice, Human Rights, and the Rule ofLaw.
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