Hopefully we can see an emerging debate on matters in relation with abortion on the blog of the European Journal of International Law (EJIL: Talk!).
As I earlier mentioned in this blog Gregor Puppinck, director of European Center for Law and Justice wrote a comment on abortion on demand and the case-law of the ECtHR. Mr. Puppinck expressed his opinion on matters related to abortion in a conservative "pro life" fashion which entails the disregard towards women's right to rospect of private life, the superseding interests of the embryo or the foetus and - what I called a terrifying solution - the consideration of the interest of the prospective father or grandfather. The author justified his reasoning by some kind of grateful tolerance on behalf of the Court towards abortion.
The response to the above mentioned opinion was published on EJIL: Talk!last week by three PhD Candidates from the Durham University Law School. Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala call for a more sophisticated and nuanced approach to abortion in their post.
The authorsadmit that - even though there cannot be found a right to abortion within its case-law - the ECtHR "has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances". They call for a holistic approach taking into accont not only the decisions of the Court but the ruling of the domestic courts as well. Relying on both domestic and ECtHR case-law they conclude that the Court does not impose "new or expanded obligations" upon Member-Statea, but rather re-affirms "obligations and rights protections which already form part of domestic legislation".
The authors also address the issue of the rights and interests of the father. They recall the decision of the European commission of Human Righta in H. v. Norway (Applicantion no. 17004/90) in which the Commission declared that the rights of the prospective mother shall be taken into account in the first place - as she is "the person primarily concerned by the pregnancy and its continuation or termination" - when assessing the rights of the potential father. A fact that was not mentioned in Mr. Puppuinck's post.
The overall conclusion of the post is as follows:
The authorsadmit that - even though there cannot be found a right to abortion within its case-law - the ECtHR "has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances". They call for a holistic approach taking into accont not only the decisions of the Court but the ruling of the domestic courts as well. Relying on both domestic and ECtHR case-law they conclude that the Court does not impose "new or expanded obligations" upon Member-Statea, but rather re-affirms "obligations and rights protections which already form part of domestic legislation".
The authors also address the issue of the rights and interests of the father. They recall the decision of the European commission of Human Righta in H. v. Norway (Applicantion no. 17004/90) in which the Commission declared that the rights of the prospective mother shall be taken into account in the first place - as she is "the person primarily concerned by the pregnancy and its continuation or termination" - when assessing the rights of the potential father. A fact that was not mentioned in Mr. Puppuinck's post.
The overall conclusion of the post is as follows:
In the context of the abortion debate, it is crucial to appreciate the nuanced and comprehensive jurisprudence of the European Court taken as a whole and note the Court’s consistent efforts – if not quite yet successes – in taking into account domestically sensitive issues while balancing the rights afforded to all under the ECHR. While the Court has refrained from recognising a right to abortion under the ECtHR [...], it has at least sought to provide guidance on this issue and reaffirm rights currently existent in domestic legislation where these rights have not received effective implementation. (emphasis added)
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