International Human Rights Law and Liberatory Potential: Part III

In Section II, I will focused on the Istanbul Convention, considering arguments about colonial oppression in this case.

Here, in section III, I will illustrate that Poland violates the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the right to abortion.

Section III- The Abortion Bill

States can violate international laws, significantly in reproductive rights, limiting international law as a liberatory potential in women's rights. For example, Article 12.1 of CEDAW maintains that states should take appropriate measures to eliminate discrimination against women in healthcare, including family planning, to ensure equality for men and women.

This clearly illustrates that women ought to have access to contraception, abortion and IVF treatment to have equal status as men and not be discriminated against. Despite CEDAW, Poland enforced a controversial near-total abortion ban in early 2021, where women could only access abortion if the mother's life is at risk, in cases of incest or rape.

This seriously undermines the status of women's freedom and equality. Though limiting women's equality status is prohibited by CEDAW, it did not stop PiS from violating such a law.

Consequently, a 22-week pregnant woman died in hospital from pregnancy complications, as doctors were told not to abort the foetus until the heart stopped beating. In light of such a catastrophic violation of rights, the European Court of Human Rights recognised the lack of access to abortion services as violating the right to family and private life.

However, again this does not implement any change in the law. In this way, the EU and its international law have no impact on abortion rights in a member state such as Poland, and the EU merely calling on them to respect fundamental rights is not enough to actualise international women's rights have liberatory potential. This is as it takes countries themselves to transform their rights.

Image: News DW

An objection could be that international law does have liberatory potential as the EU protects Polish citizens. For example, when Poland contemplated leaving the EU ('Polexit', 2021), the EU Commission Office responded that their priority was to ensure the rights of Polish citizens were protected, suggesting that international law aims to protect citizens against state domestic law violations.

However, this is not a convincing argument as most Polish politicians were against 'Polexit',[6] highlighting the low likelihood that such an exit of the EU would occur. PiS still implements teachings of the Catholic church about traditional gender roles to govern the bodily autonomy of women, regardless of EU membership.

Additionally, this further violates other international laws, such as the European Convention on Human Rights (ECHR), which protects the freedom to determine how to live one's own life. PiS Party rhetoric against 'genderism', the limitation of reproductive rights and the preservation of traditional family values inhibits the liberatory potential of international human rights law.

Poland's rejection of CEDAW claims to offer support to protect the life of a conceived child, banning abortion. However, this is extremely worrying and has already resulted in losing a woman's life.

Such gross violations of rights physically harm women and deprive them of the right to life. Due to this, I argue that international law, such as EU law, should implement restrictions on what must be included in the Polish replacement of both the Istanbul Convention and CEDAW.

This is especially true as the EU and Poland share similar values about the good of the family, despite PiS claiming that both the Istanbul Convention and CEDAW threaten Polish culture. If these conventions did not uphold Polish values, Poland would not have signed up and ratified them in the first place.

As international law recognises, family rights should not infringe on individual rights. If an individual's life is at risk due to domestic violence or a fatal risk in pregnancy, everything should be done to save the individual at risk.

Once again, the liberatory potential of international human rights law is inhibited without the domestic endorsement of the law. For this potential to be actualised, pressure from the international community may be required.

For more information:

United Nations Commission of the Status of Women. “Convention on the Elimination of All Forms of Discrimination against Women (1981).” 1979. https://www.ohchr.org/documents/professionalinterest/cedaw.pdf.

BBC News. “Poland enforced controversial near-total abortion ban.” 28/01/2021. https://www.bbc.co.uk/news/world-europe-55838210. De Vido. “The Ratification of the Council of Europe Istanbul Convention by the EU: a Step Forward in the Protection of Women from Violence in the European Legal System.”

BBC News. “Polish abortion law protests over woman’s hospital death.” 02/11/2021. https://www.bbc.co.uk/news/world-europe-59130948.

Adam Easton. “Poland stokes fears of leaving EU in ‘Polexit’.” BBC News. 09/10/2021. https://www.bbc.co.uk/news/world-europe-58840076. Elizabeth Wicks. The State and the Body. North America: Hart Publishing, 2016.

Anna Gwiazda. “Right-wing populism and feminist politics: the case of Law and Justice in Poland.”

Claudia Ciobanu. "Poland's Replacement for Istanbul Convention would ban abortion and gay marriage." Reporting Democracy. 15/03/2021. https://balkaninsight.com/2021/03/15/polands-replacement-for-istanbul-convention-would-ban-abortion-and-gay-marriage/. DW.com. “EU starts new legal action against Poland over rule of law.” 15/01/2022. https://www.dw.com/en/eu-starts-new-legal-action-against-poland-over-rule-of-law/a-60220102.