Endless Contestation: The Legal Status of Abortion as a Case of Colliding International Norms. Opposed Interpretations in International Fora

In debates witnessed in recent decades at the state and international levels, women’s rights have gained recognition as a globally relevant matter – as issues that concern justice, human rights and states’ socio-political development. Yet various matters pertaining to sexual and reproductive rights have remained controversial. Few issues are as highly contested as that of the legality of abortion: there is hardly a global consensus on what its precise legal status ought to be, or what should states’ role be in relation to abortion. International legal documents from the United Nations and Inter-American Rights systems (Treaties, Declarations, Pacts, Covenants, Programmes of Action, etc.) can easily be interpreted and invoked by advocates on both “sides” of the debate as promoting or opposing legal abortion. Such advocates, in both local and international fora, display widely differing – and often, fundamentally incompatible – normative and moral viewpoints. This paper focuses on the legal status of abortion as a case of international norms contestation, within a perceived collision of rights and of principles of justice. Abortion is an especially multi-dimensional matter: debates about its legal status involve not only the rights of two differently recognized individuals (the mother and the unborn), as well as clashing perceptions of relevant rights (right to life, to health, to personal choice in private matters), but also other tangential but relevant aspects such as disability rights, sexual violence or the right to conscientious objection. Abortion is controversial as well as politicized in several nation states – notably in Latin America and the USA –, often used as a point for electoral mobilization. Three highly illustrative examples of this contestation are examined in this paper. The first concerns the Draft Comment No. 36 on the Right to Life, recently published by the UN’s Office of the High Commissioner for Human Rights (OHCHR), as well as the numerous comments received by States parties and civil society. Secondly, the comments and reservations presented by States parties to Declarations and Treaties such as the Cairo Declaration on Population and Development (ICPD Cairo), its Programme of Action, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). And thirdly, the varying interpretations of rights observed between local and global advocates who invoke the UN’s legal documents on Human Rights, and those who invoke the American Convention on Human Rights” (or Pact of San José); which unlike the equivalent UN documents, does contain a provision to protect life from the moment of conception. These varying – and often, opposed – interpretations will be thoroughly analysed in this paper; focusing on the various contested dimensions of the abortion debate, the framing of international norms, the global organizing principles put forward by institutions and advocates on this debate, and the discourses given by various voices in international fora, in their attempt to fill the endlessly contested “legitimacy gap” of abortion-related norms and policies.