So we've turned in our class project on Colombia. For the most part, we took the Center's arguments on why Colombia's laws are a violation of the ICCPR. Mainly, the Center argues that the law violates the right to life, equality, freedom from torture and religious freedom. This is all in the brief, unfortunately, the brief doesn't have a lot of citations, so I'm thinking these are new interpretations. Here are the basic arguments, although, personally, I doubt they will all hold.
Life: These illegal abortions are dangerous, and women whose lives and health are endangered by continuing the pregnancy have no legal options. Even seeking post-abortion treatment can lead to jail-time. Therefore, this law violates the right to life.
One of the counter-arguments is that abortion rights themselves derogate from the protecting the right to life, which, you might know from my previous posts, is not the case (see the European Court of Human Rights cases of X v. UK, RH v. Norway, and Vo v. France).
Equality: Only women can get pregnant; only women can get abortions; only women are dennied this very important health service.
Torture: According to the Center/HRW, restrictions on access to legal abortion may give rise to situations that constitutie cruel, inhuman or degrading treatment. This would include both forcing women to continue their pregnancies, and restrictions on post-abortion health care. Apparently, part of this denial of healthcare includes withholding pain medication, which speaks to inhuman treatment.
Freedom of Religion: According to our problem, which I'm not sure is true, Colombia justified its laws by arguing that the majority of the country is Catholic, and this law reflects the Catholic values. One, apparenlty Catholic values in Colombia don't include prohibiting abortion, since there are tens of thousands per year. Second, and more legally, the freedom of religion includes freedom from religion.
Then we went into Customary International Law. Customary International Law "results from a general and consistent practice of states, followed by them from a sense of legal obligation". There is no consistent practice of states to legalize abortion, an there is no sense of legal obligation. There is a much more in-depth analysis in our paper, obviously, but it's not that interesting.
Okay, so let's say the HRC, the body that's going to hear this alleged violation of the ICCPR agrees with The Center/HRW. Then what?
A) the complaint has to be filed on behalf of an individual, not women in general
B) domestic remedies must be exhausted before the HRC will look at this petition; however, if domestic remedies are not exhausted because they are fruitless, the HRC may still hear the case.
Next, the HRC will ask Colombia to respond - it has a year to a year and a half to respond, unless the HRC find this issue urgent, in which it can demand interm measures.
If HRC accepts the petition (finds it admissible) Colombia has six months to respond and explain or make changes. Then The Center/HRW would have two months to respond.
If the HRC makes a decision in The Center's favor, that decision is final. The decision would include steps Colombia should take, and Colombia will have three months to update the HRC as to its movements on the issue.
The HRC could also appoint a special rapporteur to follow up with Colombia.
Now, there's an interesting quirk in Colombian law. The Colombian Constitution states that international law is automatically a part of the Colombian Constitution. The decision then becomes binding as a matter of domestic law, which would give rise to further domestic remedies.
Okay, that is all. Post any questions.