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OEA/Ser.L/V/II.54 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
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INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RESOLUTION N 23/81 CASE 2141 (UNITED STATES) CONCURRING
DECISION OF DR. ANDRES AGUILAR M. 1.
I concur with the decision of the majority of the members of the
Inter-American Commission on Human Rights in this case, because, from a
legal point of view I find no reasons which would allow the Commission to
hold that the facts alleged by the petitioners constitute a violation, by
the United States of America, of the rights set forth in Article I, II, VI
and XI of the American Declaration on the Rights and Duties of Man. 2.
The Inter-American Commission on Human Rights, irrespective of the
individual or collective opinions of its members on specific questions,
must determine, in each case, whether or not acts, imputed to the Member
States of the Organization of American States, constitute a violation of
one or more of the rights set forth in the American Convention on Human
Rights, if a State Party to this international instrument is involved, or
if the case concerns a State which is not a party to said Convention, of
the rights set forth in the American Declaration of the Rights and Duties
of Man. What must be determined in the one case, as in the other, is
whether the charges presented against a Member State of the Organization
constitute a violation of the international obligations which that State
has contracted in the field of human rights and in the region. 3. Consequently,
the Commission must examine with the greatest care the meaning and the
scope of the norms applicable to each case, bearing in mind among other
things the travaux preparatoires of the pertinent international
documents to assure a correct interpretation. 4.
The United States of America is not a party to the American
Convention on Human Rights, the Pact of San José, so that the primary
task of the Commission is to determine whether or not in this case any of
the rights set forth in the American Declaration of the Rights and Duties
of Man had been violated. 5.
In my view, the opinion of the majority comes to the correct
conclusion, that none of the rights set forth in said Declaration had been
violated. In effect, it is clear from the travaux preparatoires
that Article I of the Declaration, which is the fundamental legal
provision in this case, sidesteps the very controversial question of
determining at what moment human life begins. The
legislative history of this article permits one to conclude that the draft
which was finally approved is a compromise formula, which even if it
obviously protects life from the moment of birth, leaves to each State the
power to determine, in its domestic law, whether life begins and warrants
protection from the moment of conception or at any other point in time
prior to birth. 6.
This being the case, the Inter-American Commission on Human Rights,
which is an international regional body for the promotion and protection
of human rights, with a precise legal mandate--could not,--without
transgressing the limits of that mandate, issue a value judgment on the
domestic law of the United States of America or of any other State in this
matter. 7.
The decision of the majority does not begin, ant could not begin,
to judge whether abortion is reprehensible from a religious, ethical or
scientific point of view, and it correctly limits itself to deciding that
the United States of America has not assumed the international obligation
to protect the right to life from conception or from some other moment
prior to birth and that, consequently, it could not be correctly affirmed
that it had violated the right to life set forth in Article I of the
American Declaration of the Rights and Duties of Man. 8.
For the reasons expressed, I dissent on this point, from the
opinion of my distinguished colleagues Dr. Luis Demetrio Tinoco and Dr.
Marco Gerardo Monroy Cabra. On the other hand, I completely share their
judgment, based in the opinions of well-known men of science, that human
life begins at the very moment of conception and ought to warrant complete
protection from that moment, both in domestic law as well as international
law. [ Table of Contents | Previous | Next ]
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