Discussion and Analysis

The issue of abortion is clearly contentious, and this has been reflected in the discussions held on the issue during states reviews over both cycles. Aside from the high number of recommendations that were noted over the two cycles, what is striking are the three key themes that have emerged in the nature of discussions that were held on the issue. First, the most prevalent recommendation issued under both cycles was to decriminalise abortion. In fact, in the first cycle no states accepted this recommendation, and most of the states under review provided an explanation for their position. This indicates that states not only directly challenged the reforms suggested on abortion but were also willing to explain the reasons why women’s rights to abortion services were restricted in the domestic context. It is notable that the most common response issued by states for this recommendation and overall in both cycles was that national laws were sovereign on the issue of abortion. In this way, despite international human rights jurisprudence expressly providing that such legislation is contrary to women’s right to health, an overwhelming number of states refused to accept this recommendation. In fact, a more direct challenge to the universality of women’s right to access to abortion services was made when states, again in both cycles, were recommended to observe their international human rights law obligations in relation to abortion. These recommendations were more directly referring to the jurisprudence on women’s rights to access abortion facilities. In this case too, the majority of the states under review noted the recommendations providing justifications of national sovereignty of laws as a reason for noting the recommendation. In fact, Malta in the second cycle when issued with a recommendation to comply with its international human rights obligations made reference to the reservations that were made to the treaty in relation to abortion. The overwhelming refusal to accept the recommendation to decriminalise abortion andto comply with international human rights obligations on the issue of abortion indicates a strong challenge to the universality of the women’s rights universality of the international treaty jurisprudence that guarantees women’s rights to abortion services. The overwhelming majority of the states responded using national sovereignty as a reason for not accepting the recommendation.

The implication of states adopting a position, whereby a challenge to the universality of women’s rights to abortion is based on national sovereignty is, arguably, a more confrontational challenge to international norms than those that are justified on cultural grounds. This is because a justification of the non-acceptance of recommendations based on state sovereignty can be considered as being more definitive in nature, and arguably indicates a non-negotiable position on abortion adopted by the state in question. In contrast, when states adopted positions that resembled the cultural relativist perspective during the discussions of FGM, the nature of the statements indicated that their positions were not as definitive as projected by the states during the discussions on abortion. For instance, when states adopted positions that resembled the strict cultural relativist position on FGM, the states did make clear that it perceived the practice was against its international obligations and did not categorically deny the implementation of all aspects of the suggested reforms in the recommendation. By contrast, in the context of abortion, states using national sovereignty and the provisions in the domestic constitution as the basis for the categorical defence to accepting the suggested reforms aimed at lifting the ban on abortion. In this way, the states challenged the universality of women’s rights to abortion services on the basis of national sovereignty, which clearly cannot be altered without state authorities initiating the reforms on the issue.

The second significant pattern that emerged was in the second cycle of review. The state of Myanmar when issued with Recommendations 1 and 3, responded by stating that abortion was prohibited by the state as it was not socially or culturally acceptable in society. This justification for not accepting reforms based on cultural norms was unique, as no other state over both cycles issued a response of this nature. This response is unique in nature as it was the only instance, over the two cycles of review, where a state under review made references to cultural norms of society as a justification for not accepting the recommendation to decriminalise abortion. This position adopted by Myanmar strongly affiliates with the strict cultural relativist perspective, as the state through its response has implicitly shared two of its core values. First, Myanmar adopts the traditional and closed definition of culture, and then portrays it as the claimed position on the international platform. This is because the delegate presumes that the proclaimed cultural norms that do not allegedly accept the decriminalisation of abortion are not only shared by all, but also that these views are to be held perpetually. The delegate does not provide any indication in the response that recognises the possible diversity in the values held within the cultural norms of society or of the possibility of them being subject to change or reform. A similar position was taken, albeit in a more implicit manner, by Nicaragua when it was issued with a recommendation to implement gradual changes to the law on abortion. In

Women>s Right to Health 109 response, the state noted the recommendation, and stated the legislation adopted was voted for by a majority in the national assembly and supported by public opinion. In the cases of Myanmar explicitly, and Nicaragua more implicitly, the states held a static interpretation of public opinions on the issue of abortion, and presumed this not to be open to changes and reform. In addition, both states based their justifications for not accepting reforms on the presenting of, and very likely falsely, uncontentious public opinions on the issue. Second, the response of Myanmar uses the cultural norms of society as a justification for not accepting changes and reforms. This, again, is at the heart of the strict cultural relativist position whereby there is a strongly held rejection of any form of transcultural dialogue, and thereby refusing to accept the reforms suggested by those living outside the cultural boundaries. Myanmar used the cultural values and norms of society as a justification for not accepting any reforms from others that were beyond its perceived cultural boundaries.

The final pattern to emerge is that, over the two cycles of discussion on abortion no state under review committed itself to taking any particular action regarding their existing regulation of abortion. Now, at the outset, it is clear that the UPR process is a mechanism whereby changes and reforms are likely to be slow and evolutionary in nature. However, over the two cycles of discussions an overwhelming number of states noted that recommendation, and whilst the number of states accepting a recommendation in the second cycle had risen, an analysis of the nature of responses provided indicates a rather superficial nature of discussion. In all of the responses that were accepted over the two cycles, states either accepted the recommendation and did not provide any further comments, or simply referred to existing law. In relation to the latter, states either referred to domestic laws that regulated abortion, implying that laws were already in place or the states under review responded by stating that policies were currently being drafted to make the existing laws clearer. In this way, in the few recommendations that were accepted, the states under review failed to commit to any substantial actions that were to be taken as to reform the existing practices in relation to the issue of abortion.