OEA/Ser.L/V/II.54
Doc. 9 rev. 1
16 October 1981
Original: Spanish

ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
 1980-1981

 

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 Josť, 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. 

 

 

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