Rule of Law at Risk By Fiat Of International Tribunal

“We had a 50 year battle to return the issue of abortion to the American people so that states and Congress could legislate against abortion… By claiming abortion is an international human right, you would take away the ability of countries legislate on abortion democratically,” said human rights expert Stefano Gennarini in an exclusive interview.

Referring to the Inter-American Court on Human Rights (IACHR), established under the American Convention on Human Rights, it funds the court and has an interest in legal developments there.

“If the IACHR establishes abortion as a human right under the American Human Rights Convention, specifically the article on the right to life, then we are looking at seeing a decision by an international court being applied against the U.S.,” Gennarini said. The U.S. has not ratified the American Convention, which states that the right to life is to be protected from the moment of conception. Gennarini pointed out that even though the U.S. has not ratified the treaty, it is a signatory of the International Covenant on Civil and Political Rights under the United Nations, which also protects human life from conception.

At issue in the IACHR is El Salvador v. Beatriz case, which was brought against the tiny Central American republic by pro-abortion organizations that receive funding from the International Planned Parenthood Federation. On March 23, the IACHR concluded a two-day hearing in what portends to end protections for unborn human life in the Western Hemisphere.

“The consequences would be grave, not only for El Salvador, but for the rest of Latin America, should abortion be recognized as a human right. El Salvador is one of the few countries in Latin America that explicitly protects life for all people. It’s a Roe v. Wade for Latin America,” Pilar Vásquez – an attorney and co-founder of the pro-life Free and Sovereign Woman activist group –  said in an interview.

Calling on the court to shun radical ideologies “clearly contrary to international treaties binding on most countries in Latin America,” Vásquez’s group declared, “Abortion is violence against women and not a recognized as a right within the framework of international law. The IACHR judges should adhere to their mandate and recognize the first right of all the inhabitants of our American continent: the right to life.”

In El Salvador v. Beatriz, the Central American nation is accused of violating the human rights of a woman given the fictive name “Beatriz” who, according to pro-abortion groups, was denied an abortion. Already the mother of a boy, Beatriz suffered from an auto-immune disorder while she was pregnant in 2013 at age 20. Her baby was diagnosed with anencephaly, a birth defect in which much of the brain and skull fails to develop during pregnancy. According to the CDC, most anencephalic babies die a few hours or days after birth.

The IAHCR is based in Costa Rica, has jurisdiction over the 25 signatory countries, and adjudicates claims of human rights violations by government. Its rulings are binding on all Latin American countries.

The 25 countries ratifying the treaty are in turn members, as is the United States, of the Organization of American States (OAS) which was formed in 1948 as a bulwark against communism. In the past, the OAS has imposed sanctions on governments in the Americas, including Cuba, Honduras, and Venezuela.  A ruling against El Salvador could mean debilitating sanctions by the OAS.

According to the IACHR, Beatriz was told the pregnancy put her life at risk and that the baby faced a short lifespan after birth. The pro-abortion groups, such as Agrupación Ciudadana, Ipas, and Amnesty International in concert with Beatriz’s lawyers then sought before the Salvadoran high court an exception to the law and permit a “therapeutic abortion.” That court ruled, however, that Beatriz had not been denied her rights to life and health. 

Beatriz gave birth in 2013 to daughter Leilani, who died a few hours later. Vásquez said that El Salvador shielded the rights of mother and child, who “received medical care for their medical condition” and that El Salvador protected the lives of both. In 2017, Beatriz died in a traffic accident, leaving her son an orphan. 

In El Salvador, abortion is prohibited. Its constitution recognizes “every human being as a human person from the moment of conception.” CNN, among other legacy media, have dubbed the country’s protections as the “world’s harshest abortion law.”

Elective abortion is legal in Argentina, Colombia, Cuba, Uruguay, and some states in Mexico. According to Vásquez, should the IAHCR rule against El Salvador, “It would affect all the countries belonging to the inter-American system indirectly because the supreme courts of those countries, such as Mexico, Argentina, Colombia, cite the rulings of the IAHCR as precedent when considering cases. If the court determines there is a right to abortion, those courts would follow suit.”

Consequences for El Salvador

Outside of the court on March 22, hundreds of members of El Salvador’s Parents Alliance protested outside the court, declaring that Latin America is pro-life.  Among the protesters was Gerald Bogantes, president of the National Pro-Life Front of Costa Rica. Bogantes told in an interview that consequences could be dire for El Salvador should it reject an IACHR finding in favor of abortion rights.

“When a country doesn’t comply with the OAS or the IAHCR, it would be defying the inter-American system. This could create a backlash, such as sanctions, especially for El Salvador and President Nayib Bukele, who has been criticized for his policies against violence and criminal gangs,” Bogantes said.

“Should El Salvador leave the OAS, it could suffer economic sanctions and international banks cease to lend money. Everything is connected. Loans from international banks are conditioned by progressive ideology regarding reproductive rights and homosexual marriage,” he said.

France recently awarded a prize to leftist feminist Morena Herrera, the Salvadoran founder of Agrupación Ciudadana.

An Inter-American Right to Life for Women and the Unborn

Appearing as an expert witness before the IAHCR, Notre Dame Professor Paolo Carozza reminded the court that international human rights law “confirms without exception that the recognition and protection of the equal dignity of every human being is the cornerstone of all universal human rights.”

“The right to life, as noted frequently in this Court’s jurisprudence, is the first of those rights because without it all other rights are rendered null and meaningless,” he testified, and noted that the American Convention on Human Rights “places it beyond any reasonable dispute” that “human beings are holders of the right to life even before birth, from the moment of conception.”

Of such international treaties, the American Convention on Human Rights uniquely states:

Article 4. Right to Life.  1.    Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

Carozza reminded the IAHCR, “In sum, under the American Convention as interpreted by this Court, both a pregnant woman and her child in utero are entitled to the affirmative, simultaneous, and equal protection of the right to life by the State.” He called on the IAHCR to protect the rights of both women and children, and thus “set our societies on a radically new path, on which the promise of universal human rights will finally be capable of overcoming the polarizing divisions that have plagued this area of law for so long.”

The IAHCR is expected to rule by the end of 2023.

Martin Barillas is a retired diplomat, and author of 'Shaken Earth', which is available at Amazon. Signed copies are available by writing martinbarillasdelapena@gmail.com