First Cycle of Review

In the first cycle, 29 states were issued recommendations on abortion during state reviews, of four different types. In response, a total of 12 recommendations were accepted, whilst a total of 17 recommendations were noted. The states accompanied their responses with statements of six different categories; four for those that were noted, and two forms of statements issued with those that were accepted.

RECOMMENDATION 1

Under the first category of recommendations, the observer states were issued recommendations to amend, repeal, or review domestic legislation in order to decriminalise abortion so that it was permitted under certain circumstances. A typical example of a recommendation issued under this category was when the delegate of Sweden suggested Nicaragua ‘consider reviewing laws regarding abortion, removing punitive provisions against women who have had abortion’.⁶⁵ A total of nine states received recommendations of this nature.

Strikingly, all recommendations issued under this category were noted. The delegates of Hungary,⁶⁶ Malawi-⁶⁷ and El Salvador⁶⁸ provided an N1 response, as the states noted the recommendation without providing any other comments. The delegate of Costa Rica⁶⁹ provided an N2 response as it stated that action was undertaken even before the UPR process.⁷⁰ The states of Andorra, Nicaragua, Papua New Guinea, and Ireland all provided an N3 response, as the states insisted that the domestic law and constitution extended the protection of rights to the unborn child, and on this basis, the states could not accept the recommendation to lift the legal ban on abortion. A typical response is when Nicaragua stated that it did not accept the recommendation ‘for the amendment of the law prohibiting therapeutic abortion’.⁷¹ The delegate added that ‘this was clearly an issue of sovereignty, not a religious one. The majority of Nicaraguans believed that the right to life of the unborn was important’.⁷² Similarly, the delegate of Papua New Guinea in its response stated that ‘accepting this recommendation will go against the spirit of our Constitution, which is founded on Christian principles’.⁷³ This response is noteworthy because it is the only instance when a state, either

Women’s Right to Health 97 observer or state under review, introduced religious values in their explanation for the position that was adopted in relation to abortion.

The delegate of the Dominican Republic provided a slightly different explanation for noting the recommendation, as it provided an N4 general response that provided no reference to the issue of abortion, and instead provided a very general response in the area of women’s rights. Overall, when states under review were issued with a recommendation to lift a blanket ban on abortion, no state accepted the recommendation.

RECOMMENDATION 2

Observer states issuing recommendations under this category sought to encourage the states under review to lift the blanket ban on abortion by drawing upon the state’s international human rights obligations. A typical example of a recommendation under this category was issued by Norway to Ireland ‘to bring its abortion laws in line with ICCPR’.⁷⁴ A total of four states under review were issued with a recommendation of this nature. In response, only the state of Paraguay accepted a recommendation under this category and provided an A2 response. The state explained that the process of reforms on the ban on abortion was being implemented even before the UPR process.⁷⁵ The other three states noted the recommendation issued under this category’ and provided explanations for their positions which were very' similar in nature. The states of Ireland,⁷⁶ Nicaragua,⁷⁷ and Chile provided an N3 response, explaining that to accept the recommendation would mean that it was contrary to the domestic laws and the constitutional regulation of abortion. For example, the delegate of Chile explained that ‘induced abortion is forbidden in Chilean legislation’.⁷⁸ From the analysis above, it can be seen that even when states are issued with recommendations that draw upon their international obligations to encourage states to lift the ban on abortion, the states under review challenged such suggestions on the basis of exercising state sovereignty. From this it can be observed that the states under review are directly challenging the universality of international human rights standards, which have interpreted a blanket ban on abortion as a violation of women’s rights to health.

RECOMMENDATION 3

The nature of the recommendations issued under this category were generic in nature as observer states made no specific references to the domestic criminalisation or blanket ban on abortion. Rather, the observer states focused their recommendations on encouraging the state under review to enact measures to prevent any form of unsafe abortion. A typical example of a recommendation under this category' was issued by' Sweden, who suggested that Sierra Leone ‘address other causes of maternal mortality and other related issues ... such as ... unsafe abortion’. ⁷⁹

A total of three states were issued with a recommendation under this category'. In response, the delegate of El Salvador accepted the recommendation and provided an Al response as no further comments were made. It is notable that this

Table 4.3 Nature of Discussions on the issue of Abortion in the First Cycle

was El Salvador’s only acceptance of a recommendation on abortion; other more specific recommendations issued to El Salvador were noted. On the one hand, when Sierra Leone was issued with a recommendation under this category, it accepted the recommendation but, at the HRC plenary session, it stated that it only accepted the recommendation ‘subject to constitutional review’, and therefore provided an A2 response.⁸⁰ On the other hand, the delegate of Ireland noted the recommendation and provided an N3 response as it drew upon its domestic constitution to justify not accepting the reforms on abortion.

The findings of the nature of discussions under this category lend further support to the suggestion that the issue of abortion was contentious in nature. This is because even the recommendations that were generic in nature, and therefore arguably less demanding, were not received well by the states under review. For instance, one state remained silent in their response, and the other two states suggested that the domestic law in the area held priority over any suggestions of reforms on abortion.

RECOMMENDATION 4

All the recommendations made under this category were issued by the Holy See, who holds a Permanent Observer State status at the United Nations. For the purposes of the UPR process, this means that a representative from the Holy See is permitted to participate in the discussions held at the interactive stage of the review process.⁸¹ When abortion was discussed at the interactive dialogue stage, the Holy See issued recommendations during the reviews of three states. First, during the review of the Netherlands, the Holy See stated that ‘the best way to respect the human rights of the child starts with the rejection of any forcible termination of his/her life, and with the recognition that the right to life is inviolable’.⁸² Second, during the review of Timor-Leste, the delegate suggested that it should ‘persevere in its efforts to protect human life from conception until natural demise’.⁸³ Third, at the review of San Marino, the ‘Holy See highlighted the efforts ... to protect the rights of unborn children’. As the three recommendations were not classified as official recommendations, no states under review provided specific responses to the suggestions made by the Holy See.

From these recommendations, it can be observed that the representative of the Holy See adopted a position to actively encourage the state under review to protect the rights of the unborn child, and therefore, to restrict women’s rights to access abortion services. The striking fact is that the delegate of Holy See was the only state that issued the recommendations on abortion to the three states under review in question. In addition, it is notable that the position adopted by the Holy See to expressly suggest that the state under review defend the rights of the unborn child was not adopted by any other observer state. For instance, the states of Andorra, Nicaragua, Papa New Guinea, Ireland, and Chile expressly challenged recommendations issued to them to lift the blanket ban on abortion based on the protection of rights of the unborn child. However, in their capacity as observer states, none of the five states listed above issued recommendations to states under review to ban abortion services based on protecting the rights of the foetus. This shows that whilst the five states justified their challenge to lift the ban on abortion based on the protection of the rights of the unborn child, none of the states themselves attempted to use this justification as a basis to issue recommendation to ban abortion services during the review of other states. The Holy See’s recommendations to protect the rights of the unborn child are therefore unique in nature.