The Council of Europe and Abortion - Essay Example

The Council of Europe and Abortion Introduction The Council of Europe (COE) is an organization that was formed by the Treaty of London in 1949. It is based on principles of human rights, pluralist democracy, and the rule of law. It has 47 countries as signatories. For a state to join the COE, it must show its respect and determination to adopt the principles under which the organization is formed. Apart from the three main areas of basis of formation, COE also works to promote economic strength, consolidate and maintain democratic stability, and to promote European culture and diversity. Any state that joins the Council of Europe retains its political and sovereign identity, but is expected to accomplish treaty obligations. This essay will discuss how the COE protects women’s rights in regard to abortion. The Council is made of four main institutions. These include; the Committee of Ministers, Parliamentary Assembly, The Congress of Local and Regional Authorities, and The Secretary General. It is through this structure, that the council’s duties are managed. The Committee of Ministers is composed of all member states’ foreign affairs ministers and is the chief decision making-body1 2 3. Parliamentary Assembly’s main role is planning. It is the driving force of the council of Europe. It is the body that decides what issues are to be debated and acted upon by the Council of Europe. The body selects its own agenda, discusses aspects of international politics and social problems. From its discussions, it recommends to the Council of Europe, policies for adoption. The Assembly produces three types of texts, which are; their opinion on draft treaties, membership applications, and Committee of Ministers’ submitted texts, the recommendations which are submitted to the Committee of Ministers for decision making, and their resolutions which express the assembly’s own view point4. These policies are then submitted to the respective governments5. The ‘Congress of Local and Regional is a forum for discussing local and regional problems, comparing experiences and creating important points of view to the governments. The Congress of Local and Regional Authorities, works in collaboration with international and national governments and gives advice to the Parliamentary Assembly and the Council of Ministries, on all regional and local policy matters. The Secretary General is responsible for directing and coordination of the organization’s activities6. Member states of the COE must show respect and determination for adoption of the principles under which the organization was formed. Under each principle the council has guiding policies and laws. Under human rights protection, there are treaties formed to ensure the countries comply with the recommendations of the council so as not to violate human rights. These treaties include; the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Framework Convention for the Protection of National Minorities. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, is monitored by Committee for the Prevention of Torture. Committee for the Prevention of Torture is composed of independent experts who ensure people are not deprived of their liberty. The Committee for the Prevention of Torture visits places such as prisons, police stations, elderly care institutions, detention centres and mental health care institutions to monitor the treatment given to people held in such institutions. Information obtained from these visits is used to make suggestions to make sure that there is prevention of ill treatment and torture. The Framework Convention for the Protection of National Minorities is an international binding treaty that entered into force in 1998 and it is only specific to protection of minorities only. Convention for the Protection of Human Rights and Fundamental Freedoms (1950) is a treaty that deals with protection of political and civil rights7. In 2008, the Parliamentary Assembly came up with a resolution for COE member states on abortion and safe health. This is as described below. “Resolution 1607 (2008)1: Access to safe and legal abortion in Europe”8 The Parliamentary Assembly resolved that: Abortion is not and should not be considered a family planning method. Women’s rights should be respected and for that reason, the number of abortions and unwanted pregnancies should be reduced through all possible means. Restricting and imposing numerous conditions on effective access to safe acceptable and appropriate abortion services is discriminatory. According to the Parliamentary Assembly, laws of member states to the Council of Europe permit abortion for various reasons. These include; preserving the mother’s mental and physical health, to save the expectant mother’s life, in case of foetal impairment, in case of incest and rape, for social and economic reasons and in some countries, upon request. The Parliamentary Assembly observed that among its member states, there are those who impose numerous conditions, and restrict access to affordable, safe, appropriate and acceptable abortion services. This is discriminatory considering that women who do not have enough finances and are not well informed cannot get the safe abortions, nor, can they get the legal services to fight for their rights, compared to those who are well informed and can afford both legal and safe abortion services9. Conditions that are put in place to provide abortion services should be there to guarantee effective access to the women’s right to safe and legal abortion. The Assembly found out that women lack doctors willing to conduct abortions, lack local health care facilities, lack of enough time allowed for one to change her mind about abortion, lack of repeated medical consultations required and waiting time for abortion10. Abortion should not be banned within sensible gestational limits. According to the Assembly, a ban on abortion does not eliminate the need for abortion; it only affects access to safe abortion services. This is denying women their right to safe healthcare services. A ban on abortion does not also reduce the number of abortions, instead; it increases the number of concealed abortions which increases maternal mortality and is more distressing. It also leads to a costly abortion that delays timing of an abortion and causes social inequities11. States should utilize their resources to provide education on rights, strategies and policies that reduce abortion and on sexual and reproductive health. Abortion should be based on a woman’s concern with specific consideration to the right of all human beings to freedom to control their own bodies and to respect their physical integrity. Member states of the COE are advised to assure “women’s effective exercise of their right of access to a safe and legal abortion”12, have reasonable gestational limits in decriminalizing abortion, provide an environment of freedom of choice without promoting abortion, remove restrictions that deny women their rights to safe abortion, ensure access to contraception for both men and women, and encourage pro-family attitude among their members13 14. These recommendations however, may not have been adopted by some countries as required of them. This is as illustrated by cases such as R. R. V Poland, A, B, and C v Ireland, P and S. V Poland, and Tysiac v. Poland15 and some reports on countries legislation effects on women. The Council of Europe ensures protection of human rights through various bodies which include: The European Courts of Human Rights (replaced by Protocol 11 of the European Convention on Human Rights), European Social Charter, and the European Committee of Social Rights16. The European Courts of Human Rights has optional jurisdiction over member states that have accepted the optional jurisdiction. Its judges are elected by the Parliamentary Assembly. The role of the court is to handle human rights cases. It handles applications on human rights violations from individuals as well as from member states1718. It ensures that member states adhere to the recommendations of the COE. The countries should abide by the European Courts of Human Rights judgements decided against them. This is however, not the case. Ireland, Poland and Turkey are some of the countries that have not implemented the Human Rights Court’s decisions19. In Ireland, the court criticized its legislation on abortion stating that the legislation denied a pregnant woman, legally acceptable abortion services. This was in the case of A, B and C v Ireland. The legislation denies women knowledge on whether one who wants to have an abortion qualifies for abortion under the exception of saving a mother’s life. Zaimov also indicates that Ireland is being urged to revise its laws on abortion and legalize it to help the women of that country have access to safe abortion services. Ireland however, is still considered a “symbol of resistance against abortion”20. Ireland is a signatory state to the Council of Europe which has provided the above described resolutions on abortion and safe healthcare. However, it has shown a high level of resistance to implementing these resolutions. The decision making body is composed of foreign affairs ministers from each member state representing each state. Such retaliation to agreements shows a high level of inconsistency within the COE governing institutions and member states, on the issue of abortion. In Turkey, in 2012, the council found out that the country had an intention to change its legislations to outlaw abortion in all circumstances. Again this is a show of disagreement. The Council of Europe is another parliament to Turkey and it should follow its recommendations based on its obligation to abide by the objectives of the 1949 treaty. This is another clear example of inconsistency concerning abortion laws21 22. Poland’s legislation on abortion has also been found to be very strict to an extent that they violate various womens rights23. They have been condemned severally and urged to change their laws and ensure protection of human rights concerning the matter of abortion, but it seems the country has not heeded24. The debate on abortion has its supporters indicating that the current Parliamentary Assembly resolution consecrate key human values. These are; conscience, freedom and life. These values are considered at the root of democracy, for which the COE stands for. For this reason, Gregor Puppinck, with the European Center for Law and Justice, noted that the COE does not fight against euthanasia or abortion, but fights to protect the right of medical practitioners, medical doctors, and medical institutions to provide or not to provide abortion services or practice euthanasia. Abortion was already legal in various states which are members of the COE. About 27 states have abortion as legal for various reasons, for example, for unwanted pregnancies that are allowed to be terminated at the 28th week focusing on the well being of the mother25. From this information, it is clear that the COE does not support nor disagree with abortion. It only ensures that the rights of the people involved are protected. It ensures that the rights of the doctors, medical practitioners, and the patients are protected. This is through its recommendations and resolutions on how people can have access to health care with equality and freedom. If a country has a law that supports abortion, the COE through its Parliamentary Assembly and other human rights bodies, ensures that people get what they deserve as according to the laws protecting their rights. The Parliamentary Assembly draft on abortion, however, has anti-abortion supporters. Religious groups have come out to oppose the support for abortion laws stating that it is immoral. This has created a section of catholic, eastern (representing Muslims) and orthodox members of parliament to isolate themselves to fight against abortion using the moral approach26. Poland, Ireland and Turkey are strong staunch catholic countries27 28 29. The system supports the protection of the rights of the people, but there is disagreement on abortion laws. Some countries have disregarded the resolutions made by the Parliamentary Assembly as well as the Human Rights Court’s judgements on cases against their abortion laws. This shows that some COE member states have not agreed on the resolutions presented to the Committee of Ministers on abortion. The COE’s governance of its member states is shaken, as some countries refused to shape their laws according to its recommendations. However, the COE has worked through its treaties and human rights protection bodies to ensure their goals are accomplished. This is illustrated in some of the cases that they have handled. In Vo Vs France, the main issue is about violation of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as was filed by Mrs Thi-Nho Vo30 31. The applicant wanted the unintentional killing of her unborn child classified as involuntary homicide, basing her facts on Article 2 of the Convention. This article is about protection of life. According to section 1 of the article, the law protects everyone’s right to life and no one shall be deprived of his life intentionally. This is in exception of penalties provided by law that require execution of persons found guilty by the courts for certain convictions that require such penalties to be carried out. Section 2 defines circumstances and conditions under which deprivation of life is not in violation of section 1. These include; when deprivation of life results from the use of force, “which is no more than absolutely necessary”, in order to prevent escape of a lawfully detained person or carry out a lawful arrest, in order, acting lawfully, to quell an insurrection or a riot, and in defence of any person from unlawful violence32. The Court could not consider the doctor’s act an involuntary homicide stating that the issue of when right to life begins should be decided at the national level. This was because the COE does not have an accord on legal and scientific definition of the beginning of life, and because the states that ratified the convention had not agreed on the matter. The court found that the nature and legal status of a foetus was not yet defined in France. The court, therefore, found no violation of Article 2 of the Convention33 34. First of all, Mrs Thi-Nho Vo’s claim that the unintentional killing of her foetus shows lack of protection of life, as provided for under article 2 of the COE’s Convention for the Protection of Human Rights and Fundamental Freedoms, is wrong. The article states that “no one shall be deprived of his life intentionally”. This already confirms that article 2 was not violated. “Everyone’s right to life shall be protected by law” is the main issue here. This is where the question of whether the foetus should be considered a human being, fitting the description of ‘everyone’ as provided by law, arises. Based on the lack of the definition of the beginning of human life, it is not easy to defend Mrs. Tho-Nho Vo on this basis. It is not yet determined in her country, and even in the COE’s human rights protection laws. Except for the lack of consideration of the issue of the sanctity of life, which states that, “all human life is sacred from conception to death” 35, protection of human rights is not biased, it is offered to everyone. This is why, irrespective of Mrs. Tho-Nho Vo having been the ‘client’ who filed a case against her country and the doctor, for not considering her unborn foetus a human being. The case was judged right by considering the facts of the case not in violation of article 2 of the convention. Mrs. Tho-Nho Vo could have filed a case against the doctor, for being negligent in his practice. Paton v UK is a case where a husband tried to prevent the wife from having an abortion. The applicant filed a complaint with the European Conventions Human Rights alleging that: Articles 2, 5, 6, 8, and 9 of the Convention had been violated36. Concerning Article 2, the Convention ruled that the sentence ‘everyone’s right to life’ in section one of Article 2 does not include foetus as everyone. It indicated that although the word ‘everyone’ has not been defined by the Convention, its application in other articles shows that it can only be applied after the child is born. The Commission also found the husband’s right to respect for private and family life cannot be interpreted so widely to even include procedural rights to a pregnant woman that aim at saving her life. Other articles were found irrelevant for the examination of the applicant’s complains37. There is consistency in the rulings regarding the definition of the beginning of life. However, there is a question that one might raise regarding the reasons given when making judgements. The first case indicates that the COE has no definition of the beginning of life, while the second case states clearly that the word ‘everyone’ does not regard foetus as ‘everyone’. This second case shows that COE in its laws, does not consider a foetus as a human being, yet in the first case, judgement was made on the basis that both France and COE laws do not have any definition of the beginning of life and so could not consider a foetus as a human being to be included in the ‘everyone’ as provided by the law. This is a bit confusing. Irrespective of this observation, COE is trying to promote uniformity in provision of human rights among its member states. This is as evidenced by the above recommendations and resolutions by the Parliamentary Assembly, and judgement on its human rights cases. Most of its states have different laws regarding abortion. These affect the services offered to the services, the quality of life of citizens, and in turn violate their rights. A case example is AB&C Vs Ireland. This was a case taken by three women against Ireland. The three women argued that their health and well being were at risk because abortion is a crime according to Ireland laws. They also argued that criminalization of abortion was in violation of some articles of the European Convention on Human Rights. Such articles include; Article 2 which is on right to life, Article 3 which is on prohibition of torture, Article 14 which is about prohibition of discrimination, and Article 8 which is on Respect for Family and Private Life.38. The judges of the European Courts of Human Rights ruled that Ireland was in violation of Article 8 of the European Convention of Human Rights by not implementing the constitutional right to lawful abortion when a woman’s life is at risk. Ireland’s law on abortion was found to violate women’s right and was advised to ensure life-saving abortion services are available39. Poland is a representative of member state with stringent laws and practices that violate human rights. In Tysiąc v Poland [2007], the Convention’s human rights court found that the provisions of Poland’s civil law as applied by the Polish courts did not allow Alicja Tysiąc to defend her right to respect for her private life. Alicja Tysiąc sought the court’s intervention after being advised against abortion by a medical practitioner, stating that it would not affect her eye sight. Her eyesight deteriorated after delivery which was a sign of the effect of the pregnancy. This was never established, but the treatment she was given by the courts and the laws of the country were found to violate her rights as she tried to seek justice40. Other cases that show the differences in laws among member states and the violations of human rights are; Silva Monteiro Martins Ribeiro v. Portugal, Jean-Jacques Amy v. Belgium, R. R. V Poland, P and S v Poland, Open Door and Dublin Well Woman v. Ireland, and Odièvre v. France414243444546. The decisions of these court cases have a similar basis to that of the formation of abortion recommendations by the Parliamentary Assembly. One of the arguments made by one of the representatives of the COE on abortion is that abortion is already legalized in most of the European counties. The role of the COE, therefore, was not to support or oppose abortion, but to provide human rights supports. The COE representative meant that COE recognized laws already developed in various states on abortion and ensures safe and non-discriminatory delivery of abortion services to citizens of member states. Abortion is already legalized and so the states should work towards providing efficient services for abortion. The same applies to the above cases. In Vo Vs France, the issue of when life begins is still under debate in France and so the Court acted on this basis to provide a fair judgment. It shows that the COE acts to protect individual rights. The Court of Appeal of France, however, already made a decision that the doctor is guilty of unintentional homicide. This could only mean that according to the criminal laws of France, the foetus should be considered a human being. Paton vs UK case is also affected by the lack of an agreement on whether a fetus should be regarded as a person that deserves to be protected by the laws of various states. The Commission has, however, shown that protection of rights also needs justice. It has proved that no rights of the applicant were violated, and even if there could be, for example, the right to respect for family and private life, such a right could not be considered when one’s life is at stake. Silva Monteiro Martins Ribeiro v. Portugal shows that the Convention declared that abortion is not a right. Rulings on Jean-Jacques Amy v. Belgium indicate that, neither does the Convention support this practice. This does not mean that in cases where abortion is legal, the Convention would not consider the legitimate interests involved. This has been the case with the above mentioned cases. R. R. V Poland, P and S v Poland, A. B. and C. v. Ireland, Tysiac v. Poland, and Paton v UK; all show that the Convention only acts to ensure that the legal frameworks adopted by various countries in support of abortion in some situations, are well developed to allow involvement of legitimate interests from different countries, in accordance with the Convention’s obligations47. A. B. and C. v. Ireland, Odièvre v. France, and Open Door and Dublin Well Woman v. Ireland, show the types of legitimate interests involved. They show the interest of the society in protecting morals484950. All these cases have shown the level of the COE’s participation in protecting and defending human rights. When compared to the policy level of defence, it could be considered to be the same. It is the policies that guide the mechanisms used to protect the people and COE member states. References Ankara, 2012, June 06, Abortion Ban Unacceptable, Council of Europe Warns Hürriyet Daily News. Retrieved on 9th March 2013 from: http://www.hurriyetdailynews.com/abortion-ban-unacceptable-council-of-europe-warns.aspx?pageID=238&nid=22466 Council of Europe, 2010, Council of Europe Institutions. Retrieved on 9th March 2013 from: http://www.coe.md/index.php?option=com_content&view=category&layout=blog&id=47&Itemid=73&lang=en Cranmer, F., 2013, Poland Condemned By The ECHR In Another Abortion Related Case. Retrieved on 9th March 2013 from: http://humanistfederation.eu/poland-condemned-by-the-echr-in-another-abortion-related-case/ European Convention on Human Rights. (n.d). Convention for the Protection of Human Rights and Fundamental Freedoms. Retrieved on 28th March 2013 from: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf Flynn, D. 2012 October, Europe rights court condemns Poland in abortion rape case. Reuters. Retrieved on 1st April 2013 from: http://www.reuters.com/article/2012/10/30/us-poland-abortion-court-idUSBRE89T1AC20121030 Human Rights Education Association (HREA), n.d., The European Human Rights System. Retrieved on 9th March 2013 from: http://www.hrea.org/index.php?doc_id=365 Mediterranean Commission, n. d., CLRAE: The Congress of Local and Regional Authorities of Europe. Retrieved on 9th March 2013 from: http://www.commed-cglu.org/spip.php?rubrique138 Mental Health Europe (MHE), 2010, Council of Europe Institutions. Retrieved on 9th March 2013 from: http://www.mhe-sme.org/about-eu/other-european-institutions/coe-institutions.html Netherlands Institute of Human Rights. 2012. Vo v. France. Retrieved on 9th March 2013 from: http://sim.law.uu.nl/sim/caselaw/Hof.nsf/2422ec00f1ace923c1256681002b47f1/978b5b23d9fa1e1bc1256ec9004e16ee?OpenDocument Novak, D. (2007). The Sanctity of Human Life. Washington, DC: Georgetown University Press. Parliamentary Assembly, 2008, Resolution 1607 (2008)1: Access to Safe and Legal Abortion in Europe. Assembly Debate on 16 April 2008. Retrieved on 9th March 2013 from: http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta08/eres1607.htm Radio Liberty, 2013, March 09, Council Of Europe Takes Up Abortion Debate. Retrieved on 9th March 2013 from: http://www.rferl.org/content/Council_Of_Europe_Takes_Up_Abortion_Debate_/2191892.html Stoyan, Zaimov, 2012 December, Europe Pressuring Ireland to Drop Abortion Ban? CP World. Retrieved on 1st April 2013 from: http://www.christianpost.com/news/europe-pressuring-ireland-to-drop-abortion-ban-86616/ The Journal.ie, 2012, December 11, Ireland Told To Expedite Abortion Legislation Or Regulation. Retrieved on 9th March 2013 from: http://www.thejournal.ie/council-of-europe-abortion-710582-Dec2012/ UK Delegation To The Council Of Europe, 2013, Congress of Local and Regional Authorities. Retrieved on 9th March 2013 from: http://ukcoe.fco.gov.uk/en/uk-and-the-coe/congress/ UK Parliament, 2012, Parliamentary Assembly of the Council of Europe. Retrieved on 9th March 2013 from: http://www.parliament.uk/mps-lords-and-offices/offices/delegations/coe2/ WHO, 2013, Council of Europe Parliamentary Assembly Report on Safe and Legal Abortion in Europe. Retrieved on 9th March 2013 from: http://www.euro.who.int/en/what-we-do/health-topics/Life-stages/sexual-and-reproductive-health/activities/abortion/report-on-safe-and-legal-abortion-in-europe CASES ABC v Ireland. n.d. Retrieved on 9th March 2013 from: http://www.ifpa.ie/Hot-Topics/Abortion/ABC-v-Ireland Paton v UK Case Tysiąc v. Poland Case Retrieved on 9th March 2013 from: http://www.bailii.org/eu/cases/ECHR/2007/219.html Vo v. France Case Retrieved on 9th March 2013 from: http://www.equidad.scjn.gob.mx/IMG/pdf/18-_Caso_Vo_v-_Francia_-_Ingles.pdf Read More