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Home Human Rights European Convention on Human Rights In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Although the Court stated that Article 8 “cannot be interpreted as conferring a right to abortion”, it nevertheless also “found that the prohibition of abortion when sought for reasons of health and/or well-being falls within the scope of the right to respect for one’s private life and accordingly of Article 8” (P. and S. v. Poland, para 96, referencing A., B. and C. v. Ireland paras. 245 and 214). Moreover, the Court considered that “the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion” (P. and S. v. Poland, para 99).

The common thread in the P. and S.  case and the Court’s previous decision in A., B. and C. v. Ireland is that in both cases, unlike Mr Puppinck’s suggestions elsewhere, the Court is not imposing new or expanded obligations upon the Member-State; rather, it is re-affirming obligations and rights protections which already form part of domestic legislation. Both in Ireland and in Poland narrow exceptions to the prohibition of abortion are part of national jurisprudence. In Ireland, the 1992 Supreme Court decision in Attorney General v. X allows for an abortion in limited circumstances where there is a real and substantial risk to the life of the mother if the termination is not affected (in this particular case the risk was suicide). However, this ruling of the Irish Supreme Court has not yet been transposed into ordinary legislation that would settle the exact procedural and substantive requirements for a lawful pregnancy termination and provide medical professionals with certainty as to how to proceed. As abortion is a criminal offence punishable by life imprisonment under Irish criminal law, the need to clarify the legal and medical framework and clearly outline the circumstances where a medical termination or abortion can be performed without the risk of a criminal prosecution is palpable. In the P. and S. case, an official permission of abortion had been obtained as the pregnancy was the result of a rape. However, the State failed to provide the minimum acceptable conditions necessary for a safe and respectful execution of the procedure.

Admittedly, the question whether the accessibility to an abortion constitutes a right under the Convention remains a thought-provoking one. In this context, Mr Puppinck resorts to an originalistic reading of the Convention stating that “when the Convention was drafted, abortion on demand was widely recognised as a crime (Brüggemann and Scheuten v. Federal Republic of Germany)”. This argument is utilised to support the view that no such right could have been established or developed by the Convention. However such an interpretation disregards the inherent intent and nature of the Convention to promote and protect human rights, which has been consistently re-affirmed by the European Court of Human Rights. The Court’s statement in the Tyrer v. UK case (para 31) that “the Convention is a living instrument… which must be interpreted in the light of the present day conditions” is perhaps one of the most well-known and quoted statements of the Court. The evolving interpretation of the Convention is well illustrated in the approach towards homosexuality, which captures the advancement of LGBT rights in relation to privacy (Dudgeon, Norris, Modinos cases).

In general, as stated in Airey v. Ireland (para 24) “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. Thus, with reference to abortion, it is striking that Mr Puppinck then implies that the Court is sitting in the corner patiently waiting for a father or grandparent to file a complaint, which would offer the Court the opportunity to declare that “abortion on demand” (which is not clearly defined in his piece) is a violation of articles 2, 3, or 8. Moreover, the issue of a father’s objection to the termination of a pregnancy was addressed in H. v. Norway and declared inadmissible by the Commission. In that case the Commission found that  “any interpretation of the potential father’s right under [articles 8 and 9] in connection with an abortion which the mother intends to have performed on her, must first of all take into account her rights, she being the person primarily concerned by the pregnancy and its continuation or termination” (para 4). In relation to the alleged discrimination under article 14 between parents, the Commission found that the father’s situation was not analogous to the mother’s (para 6).

The right to life of the foetus and when this right may be said to begin (whether from the first moment of conception or afterwards) is a key element in Mr Puppinck’s piece. It is important to note at this juncture that the Court has been notoriously reluctant in ruling on this issue and has afforded the discretion to each individual Member-State to determine when human life begins within domestic legislation. In Vo v. France, the Court states that “the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, [as] a ‘living instrument’ (quoting Tyrer)” (para 82). The two reasons for this were, firstly, that “the issue of such protection has not been resolved within the majority of the Contracting States themselves”, and secondly, that “there is no European consensus on the scientific and legal definition of the beginning of life” (ibid).

The court has generally referred back to Member-States through the margin of appreciation doctrine when delicate religious, moral and political questions have been at stake. In Handyside v UK (para 48) the Court found that the State had a legitimate aim to ‘protect morals’, and that the national authorities were better placed to decide on questions of ethical content. However, the existence of competing rights to balance is a challenge that the Court has engaged with constructively. In Open Door and Dublin Well Woman v Ireland the Court “considered that the restraining of the provisions of information to pregnant women about abortion facilities abroad violated Art. 10”, employing the principles of proportionality and necessity in evaluating how national authorities balance the rights of the unborn vis-à-vis the Convention rights applicable ordinarily to all persons in being (para 69 and 70). Importantly, the Court has considered the balance of conflicting rights with respect to the intent and protections afforded under the ECHR, as stated in A. B. and C. v. Ireland (para 237 and 238;): “the margin of appreciation is not unlimited (…) as to how it balances the conflicting rights” and “the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved”. For instance, in Open Door and Dublin Well Woman, in discussing Art 10 with regards to information on abortion services, the Court recalled Handyside: freedom of expression is also applicable to “information” or “ideas” (like abortion) that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (para 71). Mr Puppinck would, we are sure, agree that the Court is unlikely to voluntarily depart from upholding the values of a democratic society.

The very nature of the margin of appreciation doctrine would suggest that the Court strives and will continue to strive for a more sophisticated approach in allowing for a degree of variation between Member-States on complex ethical questions, while at the same time trying to uphold the Convention rights for all individuals concerned – regardless of how liberal or conservative their national laws may be. However, this approach is still highly ambiguous, as discussed recently in a case note to A. B. and C. by de Londras and Dzehtsiarou; by accepting the force of a ‘trumping internal consensus’ (i.e. an alleged moral value of the State that overrides the European consensus), the Court seems to defer completely to State discretion on certain sensitive matters instead of “laying down the exact parameters of Convention rights in contentious areas”.

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 (Silva Monteiro Martins Ribeiro v. Portugal), 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.

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10 Responses

  1. Clément Marquet

    Thank you! Very interesting read!

  2. Grégor Puppinck Grégor Puppinck

    I’m very pleased that you spent time and energy to discuss my previous post: it is always good to discuss sensitive matters; so, thank you very much.
    You accuse my attitude “towards the ‘free will of women’ combined with [my] (mis)representation of abortion [to be] not particularly constructive and [my] legal analysis [to be] not sufficiently nuanced.” This was a promising start, but I have to say that it did not reached my expectations; while reading the post, I expected a more convincing critic, focused on the heart of the matter rather that discussing mainly the secondary issues of the margin of appreciation, living instrument, and consensus, which are important but not essential. May I say also that I do not see where the sophistication of your approach is; although I understand that you appreciate presenting yourselves as nuanced and sophisticated.
    So, let me please indicate you the “targets” that should be addressed if you really intend to refute my presentation. If you do not address seriously those questions, I would consider your accusation as being simply inappropriate and mpolite.
    In order to seriously refute my article, I would you please ask you to demonstrate that:
    1. the Court excludes the unborn person from the scope of the Convention;
    2. access to abortion on demand can be claimed based on the Convention;
    3. the refusal to grant access to abortion on demand infringes a right guaranteed by the Convention;
    4. the practice of abortion on demand does not curtail any right and interest guaranteed by the Convention.

    I have an additional question as to your remark on the doctrines of “originalism” and of “living instrument”: can a human being be and not be? How the ontological nature of the human being before birth (or after birth), which determines its quality as “person” within the meaning of article 2, can change depending on the evolutional interpretation of the Convention? One more question as conclusion: can the “consensus” define who is a person?
    Finally, in good faith, I do not see any other coherent status of abortion before the ECHR, than the one I proposed in the post and submitted to your constructive critics.

    Sincerely yours,
    Grégor Puppinck.

  3. Sloet Steenkamp

    Sorry guys, – I’m really moved by your enthusiasm but your comment (shallow, I must say) doesn’t stand any criticism.
    (1) You invoke the so-called principle of “evolutive” interpretation, i.e. “the Convention is a living instrument… which must be interpreted in the light of the present day conditions”. However, you very conveniently “forget” another, still more important principle, that is:
    “The Court cannot, by means of an evolutive interpretation, derive from [the Convention] a right that was not included therein at the outset.” (Johnston and Others v. Ireland, para. 53, Emonet v. Switzerland, para. 66).
    Don’t forget it: despite its particular character and whatnot, the European Convention remains an international treaty governed by the Vienna Convention of 1969 on the Law of Treaties (more precisely by its articles 31 and 32). The ECHR cannot substantially overstep the limits set by the parties’ intentions – such a judgment would be ultra vires, therefore illegal, therefore null and void, therefore not binding on the respondent State.
    Sorry to disappoint you, my European friends, but an international treaty is, by its nature, nothing but a contract ruled by the very basic, Roman, principles of contract law. And the basic contents of a contract correspond to the parties’ intent. Therefore, a radical disconnection of the Court’s case law with the original meaning of the Convention would be not only legitimate, but plainly illegal. When the Convention was signed, its authors – very clever people – certainly foresaw the development of new technologies, etc., to which the Convention would have to adapt. However, even in the worst nightmare they couldn’t imagine that the Convention would once be invoked to claim a positive “right” to abortion, which, as Dr Puppinck writes, was then as a principle outlawed in the majority of the West European countries.
    Therefore, there is not and cannot be a “right to abortion” in the Convention. If the ECHR once declares that there is one, it will be to the domestic Constitutional or Supreme Court to nullify this judgment of the ECHR as an ultra vires act. Yes, it is as simple as that. There is absolutely no obligation for a State to comply with the directives of international bodies when they act ultra vires.
    (2) The second fundamental mistake you make is in the last but one paragraph: you speak of “an alleged moral value of the State that overrides the European consensus”. Well, you see, the tricky thing is that there is no “European consensus” on abortion. Recalling my English classes, the proper meaning of “consensus” is a general (express or tacit) agreement among the members of a group. If at least one vocally disagrees, there will be a strong or overwhelming majority, but no consensus. In Europe, as far as I know, there are not one but FOUR States with extremely restrictive laws on abortion: Ireland, Poland, Malta, Liechtenstein. What consensus can there be then?
    Your problem is that you confuse a “consensus” with a “trend”; or, more precisely, you call a trend a consensus. (But don’t worry: the ECHR itself makes the same mistake.) Indeed, a consensus can be used as an auxiliary source of law in interpreting an international agreement; a trend (which we can also call “fashion”) cannot. It is simple as that: fashion doesn’t legally bind, be it listening to “Gangnam Style” or allowing abortions.
    (3) Your article (although intended to be a part of an academic debate) actually contains a shining shibboleth which reveals the whole idea behind your publication. Here it is: “it [the Court] has systematically been pressing more conservative Member-States to etc..”
    Wow! That’s really hard. Because, you know, the term “conservative”, in the context you have used it, belongs to the political and ideological, not legal sphere. And it seems that you now allege that the European Court of Human Rights promotes a partisan ideological agenda (and, since it is specifically “pressing” allegedly “conservative” States – as you say –, it seems that you imply that this agenda is socialist, right?). This is a terribly important question with very important implications. Let me repeat my question clearly: Do you imply that the ECHR promotes an ideological agenda, as it follows from your own words?
    Best regards,
    Sloet from Stellenbosch
    P.S. A final remark: despite the title, I see nothing “nuanced” and still less “sophisticated” in your article.

  4. Jakob Cornides Jakob Cornides

    Just two comments:

    1. By saying that the Convention is a “living instrument”, the Court actually says that it does not want to respect the Convention as it was originally drafted. That is precisely what lies at the heart of many doctrinal abrerrations – not only those concerning abortion.

    2. The most important (and revealing!) decision is Vo. v. France, although it does not directly deal with abortion. The decision is remarkable for two reasons. The first is that the Court actually acknowledges the obvious, namely that the unborn child is a human being. But at the same time, it introduces a completely new criterion: that of personhood. Whie we all agree on what a human being is, everybody is left free to adhere to his own theories as to what turns a human being into a “person”. The basis for the Court’s argument is incredibly flimsy (it makes use of the fact that in some linguistic versions of the Convention the word “everyone” in Art. 2 is translated as “every person”…), but it results in turning the widely accepted concept of HUMAN RIGHTS in PERSON RIGHTS.

    So, “personhood” is apparently the decisive criterion. But in the same judgment the Court says that it is “neither possible nor desirable” to find out whether the unborn child is a person.

    Not desirable???? Well, this is a bit like if in a murder trial the judge said: “it is not desirable to find out who killed the victim.” Honestly, what would we think of such a judge?

    Thus, the Court’s jurisprudence on pre-natal life is actually characterized by two features: first, the abrupt re-definition of human rights into “person rights”, and then, the unwillingness to find out who is a “person”.

  5. Alan Greene

    I think the comments on this piece are confusing the two separate issues of (a) whether there is a right to an abortion under the ECHR and (b) whether the unborn has a right to life under the convention, and at what point such a right kicks in.

    That “there is no European consensus on the scientific and legal definition of the beginning of life”, indicates that the authors are focusing on (b); whether the unborn has a right to life and at what point such a right kicks in, and not on whether there is a right to an abortion under the convention (a). To attack the authors’ arguments on the basis that they are trying to argue that there is a right to an abortion under the convention is therefore to set up a straw man to knock down.

    Even in Ireland there is no legal definition of when life begins. Rather, in Roche v Roche, the Irish Supreme Court held that the protection of the unborn (as opposed to when life itself begins) begins at implantation, rather than conception due to the connection between the child and the mother as emphasised in the wording of Art.40.3.3 of the Irish Constitution(as opposed to any philosophical, religious or scientific debate on the issue). As there ‘can be no miscarriage without carriage’ the protection of the unborn under Art.40.3.3 doesn’t kick in until implantation. The Irish Supreme Court expressly refused to assess the issue of when life begins, with then Chief Justice Murray suggesting that the degree of uncertainty on this issue is not one that can be solved by law but is ‘a policy choice for the Oireachtas’ (Irish legislature).

    Therefore, even in a jurisdiction with such a narrow access to abortion, there is no clear consensus as to when life begins. To expect the ECtHR to infer a consensus across all contracting parties as to when life begins and construct a general prohibition of ‘abortion on demand’ around this point, would not only be unrealistic, but disingenuous.

    The original piece by Grégor Puppinck to which this post is a response to argues that there is no right to an abortion under the ECHR, however, his position fails to deal with the problem of when the right to life of the unborn begins, taking it as an assumption that it starts at conception with the only justification given that that to deny the fetus the right to life would push it into a ‘legal gap’. Given that all positions pertaining to abortion must inevitably deal with the issue of when life, or the right to life begins, and given that there is no consensus- legal, scientific, or philosophical- on this issue, the doctrine of margin of appreciation is very important on this topic and cannot be considered to be merely a technicality. Indeed even the Catholic Church is unsure when life begins, with the Church’s position based on a precautionary assessment on the earliest point at which ensoulment is considered possible, i.e. conception, although not explicitly saying that ensoulment happens at conception.

  6. Jakob Cornides Jakob Cornides

    Alan,

    thank you for this interesting contribution. Yes, you are right that the decisive question is when life begins. But is this really a leal question? Or a scientific one? Or a philosophical one?

    The opinion of the Irish Supreme Court you are quoting is remarkable, and as a non-Irishman I was not aware of it. But obviously, it does not deal with the question when life begins. Rather, as you say, it deals with the question when legal protection “kicks in”. And I must say that the solution by the Supreme Court seems rather arbitrary.

    But what has this to do with the ECtHR’s position as expressed in Vo. v. France?? The ECtHR also offers no answer to the question when life begins. Instead, it abruptly declares “personhood” to be the decisive criterion – yet it fails to explain what “personhood” is and when it begins. And obviously, it means that there also is no explanation as to when legal protection “kicks in”.

    I am sorry, but what characterizes the ECtHR’s case-law on abortion is really the systematic avoidance of any insight – probably because such insight unavoidably would lead to a stronger protection for the unborn. A case of judicial obscurantism, so to say…

  7. Kieran

    Having read both the original piece and response, I feel that there is a misunderstanding by some of the comments above. The reference to a “more sophisticated and nuanced approach” in my view is a reference towards the ECtHR own approach through the margin of appreciation doctrine.

    The original piece mostly argues that the ECtHR is forcing states such as Ireland and Poland to legislate for abortion on demand; based on the domestic jurisprudence particularly in the case of Ireland and the ECtHR own decisions in respect of both countries for me this is an incorrect interpretation and is misrepresenting the ECtHR’s approach. Through the margin of appreciation doctrine, which is a fundamental principle within the entire ECtHR jurisprudence and this issue in particular, the Court has tried to thread carefully and respect domestic legislation while affording effective protections rather than force states to change their legislation. The above piece doesn’t argue that due to the evolving interpretation of the Convention there is a right to abortion, it is urging for a more comprehensive and insightful understanding and respect for the Court’s jurisprudence.
    The wide majority of the 47 Council of Europe Member States have voluntarily (not forced by the ECtHR) legislated domestically for abortion prior to the 2008 Resolution 1607 by the Parliamentary Assembly on access to safe and legal abortion thus there is a widespread agreement or consensus on the issue within Europe.

  8. Grégor Puppinck Grégor Puppinck

    Kieran,

    Thank you.

    You may mix up the two articles I wrote recently.
    The above “response” addresses my previous post on EJIL Talk http://www.ejiltalk.org/abortion-on-demand-and-the-european-convention-on-human-rights/ which demonstrates that there is no right to abortion under the Convention and that “abortion on demand” violates the Convention.
    The article on Poland and Ireland deals with the matter of the “procedural obligations” as a tool to pressure those States to liberalise access to abortion; and more generally it answer the questions as to “how can a country, that refused abortion three times by referendums, be pressured to legalize it in the name of a Convention which does not enshrine a right to abortion?” http://www.turtlebayandbeyond.org/2012/abortion/how-the-council-of-europe-is-imposing-abortion-on-ireland-and-poland/
    When you say that there is a “widespread agreement or consensus on the issue within Europe”, do you mean that there is a consensus to say that the unborn is not a person, and do you think that such question has to be decided by consensus? Or, do you prefer to stay silent, as the Court did until now, refusing to exclude the unborn from the scope of the Convention? Maybe there is a consensus in practice, but it is based on a “non-dit”: the nature of the unborn. We do not know and want to know what its content is, this explains the nuanced and sophisticated approach of the ECHR on the margin of appreciation in A B C v Ireland.
    The fact that abortion derogates from the legal protection of life before birth and is not a right per se explains perfectly the way the Court used the doctrine of the “margin of appreciation” in A. B. C. v. Ireland. In A. B. C., the Court considered that a broad margin of appreciation should be accorded to Ireland because of the “acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake”( A, B, C v Ireland, para. 233). The Court did “not consider that this consensus [“amongst a substantial majority of the contracting states of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law”(para. 235)] decisively narrows the broad margin of appreciation of the state” (para. 235).
    In a dissenting opinion, six judges expressed their disagreement with the decision of the Grand Chamber in this case, considering that the existence of a consensus on abortion among Member States of the Council of Europe should have been used to narrow the width of the margin of appreciation enjoyed by Ireland when regulating abortion in order to straighten the dynamic interpretation of the Convention towards the development of a right to wider access to abortion. The dissenting judges pointed out that it is “the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views””. They argued that the fact that these “moral views” “can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law” (Partly Dissenting Opinion at para 9). Such fear is understandable when it comes from judges impregnated by liberal philosophy. They cannot accept that “profound moral views” may impede the dynamic extension of human rights created by the Court through its doctrine of the Convention as a “living instrument”, according to which the Convention shall be interpreted in the light of present-day conditions. Such approach of the margin of appreciation of the States would severely hinder the possibilities of activism in moral and sensitive matters. Such a restraint was embraced shortly by the Grand Chamber after the A., B. and C. v. Ireland judgment in S. H. and others v. Austria, [G C], N° 57813/02, 3 November 2011.

    It is true that a large number of Member States have more or less a similar view on the “woman’s right” over the life of her unborn child, but there is no general consensus on the other side, namely on the right to life of the unborn child, which depends on “the question of when the right to life begins” (para. 237). It is not sufficient for the Court to assess the proportionality of the Irish law on abortion by looking whether a fair balance has been struck between the interests of the mother and the other rights and interests involved in the issue. Such a balance is not possible if the State recognises the unborn child as a person: you cannot strike a balance between the rights of one person and the life of another one. Therefore, it is important to understand that the question of the legal status of the unborn child takes necessarily precedence over the status of the “woman’s right” upon the life of her unborn child, as the value of an individual right upon an “object” cannot be evaluated if the nature of this object has not been previously determined.

    Whereas, according to the doctrine of the conditional applicability of the Convention, the Court should have applied the Convention to the unborn child, the Grand Chamber preferred to reaffirm that it is “impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2”, therefore “the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother” (para. 237).

    In A., B. and C. v. Ireland judgment, it is not only the “moral views” against abortion that have overridden the European consensus in favour of abortion. For the Court, the consensus in favour of abortion is not sufficient, as it also has to answer the question of the status of the unborn child in the internal legal order.
    When balancing different interests at stake in the A., B. and C. case, the dissenting judges looked only to the “moral and ethical issues raised by the question of abortion” and did not consider “the public interest at stake” (para. 233) which is deemed important by the Court to justify the restrictions on abortion. Within the notion of “public interest [is] notably the protection accorded under Irish law to the right to life of the unborn” (idem). The protection of the “right to life of the unborn” is not only a moral view; it is a constitutional obligation consistent with the Convention.

  9. Max

    Thanks very much to Ms Grozdanova, Ms Panepinto and Ms Tzouvala for their effort and, particularly, their clarification of Dr Puppinck’s various assertions.

    The difficulty – as the three learned authors explain – is that there is no authoritative support for Dr Puppinck’s overall point: in particular, comments in a separate opinion in Vo and some truly obscure inadmissibility decisions dismissing claims by fathers fall far short of establishing a Convention proscription of abortion, as distinct from a Convention acceptance that states parties may themselves regulate abortion to a point. Dr Puppinck’s statement here that “the Court should have applied the Convention to the unborn child, the Grand Chamber preferred to reaffirm that it is ‘impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2′” is rather more accurate: that is, he believes that Article 2 should be interpreted in line with what one presumes to be his own moral views, but that the Grand Chamber of the Court, and the Court’s continual jurisprudence, has – alas for Dr Puppinck – declined to do so.

    For that reason, Dr Puppinck’s original post and his comments here also fall far short of providing any basis whatsoever for the suggestion in the original post that “[a]ll that such a father or grandparent has to do is to fax a letter to the Court under article 39 of the Rules of the Court, requesting it to take urgent and interim measures …,” let alone a sufficient basis for publicly advocating such a step.

    Thanks, again, to the three learned authors and – while one is never particularly keen on even scholarly censorship – perhaps the editors might, at least, have an appropriately qualified reviewer scrutinise this sort of polemic in future?

  10. Theresa

    Thank you for a very useful debate