Posted on | February 25, 2013 by J.C. von Krempach, J.D. |
Grégor Puppinck, a frequent author on this blog, has published a legal analysis on the website of the renowned European Journal of International Law, in which he concludes that laws allowing abortion on demand are in clear contradiction to the European Human Rights Convention, which in its Article 2 protects the Right to Life.
The difficulty for unborn children to vindicate their right is that they are not able to bring their case to any court. However, the European Human Rights Court (ECtHR) has at various occasions recognized that an abortion may affect the rights of other persons than the unborn child and its mother – for example, the child’s father or it’s grandmother. Consequently, Puppinck suggests, any such person could try to to turn to the ECtHR in order to obtain urgent and interim measures:
“All that such a father or grandparent has to do is to fax a letter to the Court under article 39 of the Rules of the Court, requesting it to take urgent and interim measures in order to avoid the realization of a serious and imminent risk of breach of a fundamental right. All they have to do is to request that the rights to life (art. 2) and to physical integrity and dignity (art. 3) of their unborn child or grand-child be preserved, and that their right to family life (art. 8) be protected. The relatives of the unborn child could successfully obtain from the Court an order to suspend the procedure of abortion, if they demonstrate that this abortion is not justified by a proportionate motives guaranteed by the Convention; they may also inform the Court that they are ready to rear the child. This procedure has never been used yet to stop an abortion, but it could be an effective way to save lives. It would be in continuity with the original meaning of the Convention and with the Court’s own case-law.”
I am less optimistic. Not because I think that Grégor is wrong on the legal issue, but because I think that the ECtHR has over the last few years into an institution that, in the name of a distorted concept of freedom, does more to dismantle human rights than to protect them. Nevertheless, it would be worth trying…