Abortion in Latin America and the Caribbean

The Legal Impact of the American Convention on Human Rights

Ligia De Jesús Castaldi

• Publisher: University of Notre Dame Press
• Year: 2020
• Print ISBN: 9780268044312, 9780268107659
• eBook ISBN: 9780268107673
• Topic: Social Sciences
• Subtopic: International Law
• Index: Social Sciences

Abortion in Latin America and the Caribbean is the first major book to analyze the abortion laws of the Latin American and Caribbean nations that are parties to the American Convention on Human Rights. Making use of a broad range of materials relating to human rights and abortion law not yet available in English, the first part of this book analyzes how Inter-American human rights bodies have interpreted the American Convention's prenatal right to life. The second part examines Article 4(1) of the American Convention, comparing and analyzing the laws regarding prenatal rights and abortion in all twenty-three nations that are parties to this treaty. Castaldi questions how Inter-American human rights bodies currently interpret Article 4(1). Against the predominant view, she argues that the purpose of this treaty is to grant legal protection of the unborn child from elective abortion that is broad and general, not merely exceptional.

Abortion in Latin America and the Caribbean offers an objective analysis of national and international laws on abortion, proposing a new interpretation of the American Convention's right-to-life provision that is nonrestrictive and provides general protection for the unborn. The book will appeal not only to students and scholars in the field of international human rights but also to human rights advocates more generally.

NOTES

Introduction

1. Organization of American States, American Convention on Human Rights art. 4(1).

2. See, e.g., Shelton, “International Law on Protection of the Fetus.” (Professor Shelton, who then went on to become a member of the Inter-American Commission on Human Rights, points out that the American Convention stands out among other international human rights instruments in its explicit establishment of a prenatal right to life.) See also Carozza, Anglo-Latin Divide and the Future of the Inter-American System of Human Rights, 164 (former president of the Inter-American Commission on Human Rights Paolo Carozza indicates that the American Convention “is, on its face, the international human rights treaty that is most clearly protective of the right to life of the unborn” [emphasis added]).

3. See Abortion, in Catechism of the Catholic Church § 2271 (indicating that the Catholic Church has affirmed the immorality of abortion since the first century). See also Carozza, From Conquest to Constitutions, 281 (tracing Latin American human rights tradition back to sixteenth-century Catholic thinker Bartolomé de Las Casas; commenting on the influence of Catholic social doctrine in Latin American understanding of French Declaration on the Rights of Man and its understanding of the citizen in Simón Bolívar’s thought and the Mexican Constitution of 1917, among things).

4. See Inter-American Yearbook on Human Rights (1968), 97 (tracing human rights movement back to the colonization era when Catholic voices rose up in condemnation of slavery and racial segregation). See also Palabras pronunciadas por el doctor Rodolfo Piza Escalante, 22-23 (speech by first Inter-American Court chief justice Rodolfo Piza Escalante at the court’s inauguration, where he describes the Christian origin of international human rights law, particularly the concept of human dignity, derived from divine revelation in the book of Genesis).

5. See, e.g., Organization of American States, Actas y Documentos of the Inter-American Specialized Conference on Human Rights, 408-9.

6. See Signatories and Ratifications: American Convention on Human Rights.

7. For more information on US obligations under the American Convention, see discussion on the Baby Boy petition against the United States in chapter 1 and discussion on object and purpose of the treaty in chapter 3.

8. See, e.g., Callamard, Rep. on a Gender-Sensitive Approach to Arbitrary Killings (indicating that “[t]reaty bodies and special procedures mandate holders have consistently condemned countries that criminalize and restrict access to abortion, making direct links between the criminalization of abortion, maternal mortality and the right to life. Noting that such laws violate the right to life of pregnant women and other rights, the Human Rights Committee and the Committee against Torture, for example, have expressed concerns about restrictive abortion laws, including absolute bans on abortion, as violating the right to life and prohibition of torture and other ill-treatment”). See also Maternal Mortality in 2005 (World Health Organization (WHO) suggests that the realization of the fifth MDG goal to reduce maternal mortality will require, among other things, prevention of unsafe abortions by legalization of abortion).

9. See Loudon, Death in Childbirth, 1800-1950; Kassembaum et al., Global, Regional, and National Levels and Causes of Maternal Mortality During 1990-2013, 980-1004; Trends in Maternal Mortality: 1990 to 2008 (WHO report); Koch et al., Women’s Education Level, Maternal Health Facilities, Abortion Legislation and Maternal Deaths (all finding that access to maternal and obstetric health care, skilled birth attendants, women’s education, and the overall level of health care in a given country or region, rather than abor...

Table of contents

• Halftitle
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Abbreviations
• Introduction
• One The Inter-American Commission on Human Rights’ Inconsistent Treatment of the Prenatal Right to Life
• Two The Inter-American Court of Human Rights’ Restrictive Approach to the Prenatal Right to Life
• Three Toward a Nonrestrictive Interpretation of the American Convention’s Prenatal Right to Life from Conception
• Four Evolutive Interpretation: State Practice on Prenatal Personhood and Human Rights Entitlement
• Five Evolutive Interpretation: State Practice on the Treaty Obligation to Legally Protect Prenatal Life from Abortion
• Six Systemic and Historic Interpretation: Relevant Rules of International Law and the Convention’s Preparatory Work
• Conclusion
• Notes
• Bibliography
• Index