ABSTRACT

Th is contribution highlights that, in its relevant jurisprudence, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has interpreted abortion-related provisions of the European Convention on Human Rights (ECHR) in a manner that deviates from the customary rules on treaty interpretation, to avoid engaging in a lege artis assessment of morally or politically sensitive abortion laws. Precisely, following an overview of the Court's abortion-related jurisprudence, the contribution compares the interpretative conclusions reached by the Court in this jurisprudence with the interpretative outcomes to which the customary rules of interpretation lead. Through this analysis, the contribution evinces that, to reach its restrictive interpretations, the Court has employed an interpretative technique whereby more interpretative value is afforded to the interpretative tools that enable a restrictive interpretation than to other interpretative tools. Subsequently, the contribution highlights that even the broader interpretation of the ECHR's abortion-related provisions, in line with the customary interpretative rules, does not tackle the points of criticism that have been raised by feminist legal scholars. In doing so, the analysis indicates the boundaries of positivist treaty interpretation when it comes to reaching a feminism-informed interpretation of the ECHR, i.e. an interpretation that is closer to, or meets the standards of, feminist legal scholars. Ultimately, the analysis suggests that the Court could adopt such a feminism-informed interpretation in its jurisprudence on abortion. To do so, it would not have to deviate from the customary rules on treaty interpretation more than it already has, but simply to employ its hierarchical interpretative technique to a feminist end, i.e. to afford more interpretative value to those customary interpretative tools that enable the ECHR's feminist interpretation.

INTRODUCTION

Discussions on access to abortion and the restrictions imposed thereon are in vogue – literally. The recent strict abortion policies and restrictive jurisprudential interpretations of provisions which were previously seen as sources of a right to access abortion have had a major impact on human rights debates in various circles. As expected, abortion, and particularly the question of whether the grounds for lawful access to abortion should be left entirely to the states’ discretion, have made their way to the forefront of academic debates.