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Footnotes on the San Jose Articles



Notes to Article 1


“Conception” (fertilization) is the union of an oocyte and sperm cell (specifically, the fusion of the membranes of an oocyte and spermatozoon upon contact) giving rise to a new and distinct living human organism, the embryo.  The embryo exists when the gametes no longer exist, their genetic material having contributed to the formation of the new individual generated by their union. See, e.g., Sadler, T.W. Langman’s Medical Embryology, 7th edition. Baltimore: Williams & Wilkins 1995, p. 3 (noting that “the development of a human begins with fertilization, a process by which the spermatozoon from the male and the oocyte from the female unite to give rise to a new organism…”); Moore, Keith L. and Persaud, T.V.N. The Developing Human: Clinically Oriented Embryology, 7th edition. Philadelphia: Saunders 2003, p. 2 (noting that “the union of an oocyte and a sperm during fertilization” marks “the beginning of the new human being.”).


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In addition, any process that results in the creation of a new living human organism should be understood as a form of “conception” for purposes of these articles.  For example, in rare instances at an early point in embryonic development, some cells become disaggregated from the embryo and through a process of internal restitution and regulation, resolve themselves into a separate new living human organism—a monozygotic (identical) twin of the original embryo.  In such cases, the life of the twin begins with this process rather than by the fusion of spermatozoon and oocyte.


There are also scientific techniques (including but not limited to somatic cell nuclear transfer, otherwise known as cloning) that bring into being a distinct new human individual at the embryonic stage of development.  All such techniques are forms of “conception” within the meaning of this article.


No matter how an individual member of the species begins his or her life, he or she is, at every stage of development, entitled to recognition of his or her inherent dignity and to protection of his or her inalienable human rights, as noted in Article 4, infra.



Notes to Article 2


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An “embryo” is defined as “the several stages of early development from conception to the ninth or tenth week of life.”  Considine, Douglas, ed., Van Nostrand’s Scientific Encyclopedia, 10th edition. New York: Van Nostrand Reinhold Company, 2008, p. 1291.  “During the first week, the embryo becomes a solid mass of cells and then acquires a cavity, at which time it is known as a blastocyst.”  Ronan O’Rahilly and Fabiola Muller Human Embryology & Teratology, 3rd edition, New York: A. John Wiley & Sons, 2001, p.37.


Even the European Court of Human Rights, which has in recent years been reluctant to afford full protection to the unborn child, nonetheless stated in 2004: “It may be regarded as common ground between States that the embryo/fetus belongs to the human race.” [Vo v. France (53924/00, GC, 8 July 2004, at § 84)].


While there is broad agreement about the biological classification of the embryo as a living, individual member of the human species, some are attempting to revise scientific terminology for political reasons–to obfuscate or conceal the moral and ethical questions at hand.  Unfortunately, certain scientists and scientific organizations have followed such a course in the past, by arguing, for example, that the term “embryo” should not be used to describe the individual human being who is used and destroyed in embryonic stem cell (and other forms of embryo) research. See, e.g., “Playing the Name Game,” Nature, Vol. 436, 7 July 2005, p.2. It is important to resist such efforts to politicize scientific terminology.  In a recent landmark judgment, the European Court of Justice  rightly rejected such terminological manipulation, holding that “any human ovum after fertilization, any non-fertilized human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilized human ovum whose division and further development have been stimulated by parthenogenesis constitute a ‘human embryo’” [ECJ 18.10.2011, C-34/10, Brustle v Greenpeace].



Notes to Article 3


The fact that from conception each unborn child is by nature a human being is true of all human beings, however brought into being, at every stage of development. See notes to Articles 1 and 2, supra.



Notes to Article 4


The preamble of the Universal Declaration of Human Rights (UDHR) states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and UDHR Article 3 states, “Everyone has the right to life, liberty and security of person.”


The International Covenant on Civil and Political Rights (ICCPR) Article 6 states: “Every human being has the inherent right to life. This right shall be protected by law.  No one shall be arbitrarily deprived of his life.”  The preamble to the ICPPR likewise states: “In accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world[.]”  The ICCPR preamble also recognizes that “these rights derive from the inherent dignity of the human person.”  The ICCPR also implicitly recognizes the human rights of unborn children by providing in Article 6 that capital punishment “shall not be carried out on pregnant women.” 


The Declaration of the Rights of the Child and the preamble to the Convention on the Rights of the Child both state that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”


Likewise, the American Convention on Human Rights stipulates in Article 4.1: “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.”


See also the preamble to the International Covenant on Economic, Social, and Cultural Rights which states: “[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world[.]”



Notes to Articles 5


Abortion is not mentioned in any binding UN human rights treaty.  Only one regional treaty, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), contains reference to abortion as a right.  That treaty is highly contentious and in no way enjoys universal acceptance.  Only about half of the 54 African nations have acceded to the Maputo Protocol, and the reason most often cited for non-accession is the abortion provision.


The longtime former executive director of the U.N. Population Fund recently observed: “We, UNFPA, are mandated to consider abortion within the context of public health, but never as a right, as some NGOs do. … Abortion is a national issue to be decided by national laws and legislations.”  Interview with Thoraya Obaid, Huffington Post, January 15, 2011.  Despite UNFPA’s official position, the agency nonetheless promotes abortion rights.  See notes on Article 7, supra.


Even abortion advocacy organizations confirmed until quite recently that there is no right to abortion in international treaties.  For instance, in 2003 the Center for Reproductive Rights acknowledged that international treaties do not recognize a right to abortion: “We have been leaders in bringing arguments for a woman’s right to choose abortion within the rubric of international human rights.  However, there is no binding hard norm that recognizes women’s right to terminate a pregnancy.”  The statement was made in the Center for Reproductive Rights’ 2003 internal memorandum, “International Legal Program Summary of Strategic Planning,” and was introduced into the U.S. Congressional Record. [The Center for Reproductive Rights, internal memorandum, entered into the U.S. Congressional Record: 108 Cong., 1st sess., Congressional Record 149, no. 175 (December 8, 2003) E2534-E2547,]


In 2009, however, the Center for Reproductive Rights argued: “Women’s right to comprehensive reproductive health services, including abortion, is rooted in international human rights standards guaranteeing the rights to life, health, privacy, and non-discrimination.  These rights are violated when governments make abortion services inaccessible to the women who need them.  Under international law, governments can be held accountable for highly restrictive abortion laws and for failure to ensure access to abortion when it is legal.”  Center for Reproductive Rights report, “Bringing Rights to Bear: Abortion and Human Rights,” January 14, 2009, p.1.]


The disparity between what was said by the Center for Reproductive Rights in 2003 and then in 2009 is that in 2003 they were speaking in a private meeting of their staff, board and stake-holders, while in 2009 they were speaking in public.  Nothing had changed in the intervening years, either in customary law or in treaty law, to make the 2003 statement no longer true.


International human rights advocacy organizations have also traditionally recognized that “[t]here is no generally accepted right to abortion in international human rights law.” [Amnesty International, “Women, Violence and Health,” 18 February 2005.]


Some of these organizations have recently changed their position, often using language nearly identical to that in the Center for Reproductive Rights documents.  For instance, Amnesty International argued in 2008, that “repealing the legal reforms of the Federal District Penal Code [liberalizing access to abortion] will, in fact, result in violations of Mexico’s international human rights obligations.” Amnesty International, Brief submitted to the Supreme Court of Mexico, March 2008.


The Amnesty International brief in the Mexico case was filed a few months after an abortion rights conference at which Amnesty International had announced it would advocate for a human right to abortion.  The group’s sexual and reproductive rights director announced that Amnesty International would join the Center for Reproductive Rights’ international litigation strategy for abortion rights by helping to bring lawsuits in national courts to challenge restrictive abortion laws.  When the Amnesty International representative stated that her organization only promoted abortion rights in some and not all circumstances, her counterpart from Human Rights Watch countered that the distinction was insignificant, and then “welcomed” Amnesty International into the fold of international abortion rights advocates.  At the same conference, Amnesty International’s executive deputy secretary general announced that the group would also join the Center for Reproductive Rights in a new legal initiative to promote a “right” to maternal health which included abortion. [Remarks at the Women Deliver conference, London, October 2007.  See “Six Problems with Women Deliver,” International Organizations Research Group Briefing Paper No. 2 (November 5, 2007),].

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For a discussion on “reproductive health” and its relationship to abortion see notes on article 7, infra.



Notes to Article 6


While the authorities given to these bodies vary according to the terms of the treaties that created them, these instruments speak of the treaty bodies’ roles in terms of monitoring and making recommendations, not making decisions.  For instance, CEDAW Article 21 provides that the CEDAW Committee “may make suggestions and general recommendations based on the examination of reports and information received from the States Parties.”  Similarly, the Convention on the Rights of the Child Article 45 provides that the Committee on the Rights of the Child “may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention,” and the International Covenant on Civil and Political Rights (ICCPR) Article 40(4) provides that the Human Rights Committee “shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties.”   No United Nations treaty authorizes a treaty body to issue interpretations of the treaty that are binding on States Parties.  Although subsequent Optional Protocols to some treaties allow treaty bodies to adjudicate cases arising from individual complaints, these adjudications can take place only with respect to states that have ratified the Optional Protocol in question and are binding only on the parties to the particular dispute.


States Parties have made numerous statements making clear that they do not regard comments by treaty bodies as legally binding and that such comments were not contemplated to be legally binding when the treaties were negotiated.  According to Article 31(3)(b) of the Vienna Convention on the Law of Treaties, this subsequent practice should be taken into account in interpreting the treaty.  See e.g., Report of the Human Rights Committee, 50th Sess., Supp. No. 40, Annex VI, Observations of States Parties Under Article 40, Paragraph 5, of the Covenant, at 135, U.N. Doc.  A/50/40 (Oct. 5, 1995) (“The United Kingdom is of course aware that the General Comments adopted by the [Human Rights] Committee are not legally binding.”).  See also the U.S. statements that the ICCPR “does not impose on States Parties an obligation to give effect to the [Human Rights] Committee’s interpretations or confer on the Committee the power to render definitive or binding interpretations” of the ICCPR. Id at 131, The “Committee lacks the authority to render binding interpretations or judgments,” and the “drafters of the Covenant could have given the Committee this role but deliberately chose not to do so.”  Id.


Even legal commentators who have advocated for broad treaty body powers have recognized that treaty body interpretations are not binding on States Parties.  See, e.g., Manfred Nowak, “The Need for a World Court of Human Rights,” Human Rights Law Review 7:1, 252 (2007) (noting that treaty bodies issue “non-binding decisions on individual complaints as well as…concluding observations and recommendations relating to the State reporting and inquiry procedures.”); Michael O’Flaherty and John Fisher, “Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising theYogyakarta Principles,” Human Rights Law Review 8:2, 215 (2008) (“Concluding Observations have a non-binding and flexible nature.”); Christina Zampas & Jaime M. Gher, “Abortion as a Human Right—International and Regional Standards,” Human Rights Law Review 8:2, 253 (2008) (noting that treaty bodies “are not judicial bodies and their Concluding Observations are not legally binding”).


Despite this consensus and the fact that the treaty it monitors does not mention abortion, the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has read a right to abortion into the treaty and has pressed more than 90 countries to liberalize their abortion laws.  [Human Rights Watch, “International Human Rights Law and Abortion in Latin America,” July 2005, p.5]  The committee stated in its General Comment No. 24 that, “when possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.”  CEDAW General Comment No. 24 further asserts that nations “must also put in place a system that ensures effective judicial action.  Failure to do so will constitute a violation of article 12.”  When nations negotiated the treaty, there was no understanding that this article included abortion rights, nor did any nation reserve its position on this article in order to protect its laws criminalizing abortion.  One national court, however, has accepted the comments of the CEDAW committee as authoritative in this regard.  The high court of Colombia directed a liberalization of the national abortion law in 2006 and the court’s majority referred to the comments of the treaty bodies regarding abortion. [Constitutional Court of Columbia Decision C-355/06, 10 May 2006].


The Human Rights Committee has admonished more than a dozen countries to liberalize their abortion laws.  The Committee on Economic and Social Rights has pressed more than ten countries to liberalize their abortion laws.  The Committee on the Rights of the Child and the Committee Against Torture have also urged countries to liberalize their abortion laws.



Notes to Article 7


The World Health Organization has asserted that “[a]ccess to safe, legal abortion is a fundamental right of women, irrespective of where they live.” [See, e.g., World Health Organization, “Unsafe abortion: the Preventable Pandemic” (2006),]


The UN Population Fund (UNFPA) is prohibited from promoting abortion as a form of family planning by its mandate in the 1994 International Conference on Population and Development (ICPD) Program of Action, clause 8.25.  Yet it nonetheless promotes abortion by funding abortion providers and advocates who promote abortion as a human right and by making these providers and advocates its partners and agents in countries throughout the world.  For example, UNFPA funds the abortion-rights law firm Center for Reproductive Rights (CRR) [See CRR annual reports, e.g. its latest report from 2009 at] UNFPA has also collaborated with CRR on briefings for the committees responsible for monitoring compliance with the Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights.  According to CRR, these briefings focused on “reproductive rights violations” such as “denial of reproductive healthcare services, including abortion and post-abortion care.” []


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The Program of Action adopted at the International Conference on Population and Development is often cited to substantiate claims that there is an international right to abortion derived from the internationally recognised right to the highest attainable standard of health care [See ICPD Program of Action, Cairo 5–13 September 1994].  While it is not legally binding, the Program of Action remains the only document of some international standing containing a definition the term “reproductive health and rights,” which some interpret as including a right to abortion.


In fact, however, that definition (found in paragraph 7.2 of the Program of Action) does not include any reference to abortion at all.  On the contrary, rather than imposing on any State an obligation to legalize or de-penalize abortion, the ICPD Program of Action explicitly recognizes the sovereignty of states to legislate on that matter.  Specifically, paragraph 8.25 states, “Any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process.”


Because ICPD and the outcome document from the Fourth World Conference on Women in Beijing did not include abortion rights, advocates turned to the UN human rights treaty monitoring system to find a right to abortion.  In 1996, staff from the office of the UN Office of the High Commissioner on Human Rights, UN Population Fund, UN Division for the Advancement of Women and non-governmental abortion advocates produced a report outlining the means to do so.  The strategy, which has been implemented in subsequent years, said that “United Nations agencies could analyze each treaty and the work of each treaty monitoring body” to promote the agenda, which entailed redefining the various rights to attempt to fashion a right to abortion.  According to the report, “The right to life…could be extended to the issue of life expectancy, including distinctions between women and men, particularly in respect of issues of women’s reproductive and sexual health which adversely affect women’s life expectancy, such as…strict abortion laws which lead women to seek unsafe abortion.” [Roundtable of Human Rights Treaty Bodies on Human Rights Approaches to Women’s Health, with a Focus on Sexual and Reproductive Health Rights, Glen Cove Report, (December 9-11, 1996), 22-23.  The CEDAW committee “welcomed” the Roundtable report at its 53rd session in 1998, (A/53/38/Rev.1),].


The Center for Reproductive Rights similarly “finds” a right to abortion by reinterpreting treaties: “We and others have grounded reproductive rights in a number of recognized human rights, including the right to life, liberty, and security; the right to health, reproductive health, and family planning; the right to decide the number and spacing of children; the right to consent to marriage and to equality in marriage; the right to privacy…”  [See Center for Reproductive Rights’ internal memorandum, and position of Amnesty International on abortion rights, Notes on Article 5, infra]  



Notes to Article 8


It is generally acknowledged that the right to life within the meaning of the International Covenant on Civil and Political Rights (ICCPR) and other human rights instruments entails an obligation of States Parties not only to refrain from unlawful killing but also to take affirmative steps to prevent such killing.  See, e.g., L.C.B. v. the United Kingdom (European Court of Human Rights Judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36): the right to life “requires the State not only to refrain from the ‘intentional’ taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.”


The Vienna Convention on the Law of Treaties (VCLT) Article 26 (“pacta sunt servanda”) provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.”  Article 31(1) of the VCLT provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and the succeeding sections of Article 31 specify factors that should be taken into account in interpreting treaties, such as agreements among states relating to the treaty and/or its interpretation, state practice that establishes such an agreement, and any applicable and relevant rules of international law.


Because neither any of the interpretive factors set forth in Article 31 of the VCLT nor any other authoritative source indicates that state responsibility to protect human life does not extend to all human beings, States are free under the VCLT to interpret their obligations under treaties guaranteeing the right to life as including an obligation to protect the lives of all human beings from the moment of conception.



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Notes to Article 9


Although this Article specifically mentions abortion, governments should also guard against other threats to the lives of unborn human beings.  These threats include but are not limited to research involving the use and destruction of living human embryos.


States may, and indeed should, interpret international obligations under UN human rights treaties as including a duty to legally protect human life from its very beginning, that is, from conception as discussed in the previous note to Article 1.  A number of national constitutions already protect the lives of human beings from conception, including those of Chile, the Dominican Republic, El Salvador, Guatemala, Honduras, Ireland, Madagascar, Paraguay, Peru, Philippines, and Hungary.


Indeed, about two-thirds of the world’s countries continue to prohibit abortion by law in all or almost all circumstances.  According to the most recent compilation by the abortion advocacy group Center for Reproductive Rights, 68 countries either prohibit abortion or permit it only where necessary to save the mother’s life, and another 59 countries permit abortion only when necessary to preserve the mother’s life or health.  About a third of these countries also have exceptions for rape, and a few also have exceptions for incest and/or fetal impairment.  [Center for Reproductive Rights, “Fact Sheet: The World’s Abortion Laws,” September 2009.]  While not all of these 127 laws afford unborn children the full scope of appropriate legal protection, they clearly reflect a continuing recognition by the overwhelming majority of the world’s nations that unborn children deserve protection and that there is no human right to abortion.  In contrast, only 56 countries permit abortion for any reason, and only 22 of these are without restriction such as gestational period.  Another 14 countries prohibit abortion but provide exceptions for socioeconomic reasons.  [Fact Sheet, supra.]


Examples of pressure brought to bear on developing nations by developed nations include the experience of Nicaragua in 2006 in response to its legislature’s decision to ban “therapeutic” abortion.  The term “therapeutic” is mentioned here because it is the one commonly used, although we do not agree that an abortion can be considered, per se, a treatment for any disease.


The ambassadors to Nicaragua from Sweden, Finland, Denmark, Norway and the Netherlands, as well as the Representatives of the United Kingdom and Canadian governments, the European Commission, and UN agencies (the World Health Organization (WHO), the UN Children’s fund (UNICEF), the UN Population Fund (UNFPA), the UN Development Program (UNDP) and the Food and Agriculture Organization of the United Nations (FAO)), signed a joint letter to the President of the National Assembly, Eduardo Gomez Lopez, on October 20, 2006, in which they urged a postponement of the vote on the ground that the new abortion law would “affect the lives, the health, and the legal security of Nicaraguan women.”  The lead signatory on the letter, Swedish ambassador to Nicaragua Eva Zetterberg, announced at a donors’ conference a few months later that donors “wish to ensure a plan with mechanisms that guarantee a better linkage between assistance and government policies” and that abortion “is super-important for us.”  [“Empieza Mesa Global entre el gobierno y los paises donantes,” La Voz, July 3, 2007; “Breves Nicaragua,” Revista Envio, July 2007.]  Shortly thereafter Sweden announced a phased withdrawal of all assistance to Nicaragua.  The withdrawal was widely viewed within Nicaragua as retribution for the new abortion law banning “therapeutic” abortion.  [“Diputados acusan a la Embajadora Suecia,” El Nuevo Diario, August 29, 2007.]