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Provisional Measures With Regard to El Salvador in the Matter of B (INTER-AM. CT. H.R.)

Published online by Cambridge University Press:  20 January 2017

Lisl Brunner
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Extract

On May 29, 2013, the Inter-American Court of Human Rights (Court) issued its first pronouncement on abortion in the context of an order for provisional measures against El Salvador. The beneficiary was a young woman known as “B,” who suffered from lupus and whose fetus was determined to have anencephaly, a condition in which a major part of the brain is absent. The absolute criminalization of abortion in El Salvador prevented her doctors from terminating the pregnancy in order to protect her health, leading the Court to require the State to adopt the necessary measures in order for B’s doctors to perform the procedures they considered “opportune and desirable” to avoid irreparable harm to her rights to life, personal integrity and health.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1285 - 1299
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the United Nations Web site (visited November 16, 2013), http://www.corteidh.or.cr/docs/medidas/B_se_01_ing.pdf.

1 Matter of B, Provisional Measures with Regard To El Salvador, Order of the Court, “Having Seen” (Inter-Am. Ct. H.R. May 29, 2013), http://www.corteidh.or.cr/docs/medidas/B_se_01_ ing.pdf [hereinafter Provisional Measures].

2 Rules of Procedure of the Inter-American Commission on Human Rights 25(2) (2009), http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (“In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons under the jurisdiction of the State concerned, independently of any pending petition or case.”).

3 Matter of B, Precautionary Measure 114/13, Inter-Am. Comm’n H.R. 14 ¶ 1 (2013), http://www.oas.org/en/iachr/decisions/precautionary.asp.

4 For those States that are parties to the American Convention on Human Rights and have recognized the jurisdiction of the Court, Article 63(2) of the Convention provides for provisional measures. American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention] (“In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.”).

5 Provisional Measures, supra note 1, “Considering” ¶ 4.

6 Id. ¶ 13.

7 Id. ¶ 14.

8 Id. ¶ 15.

9 Id. ¶ 16.

10 Provisional Measures, supra note 1, “Decides” ¶ 1.

11 Matter of B, Provisional Measures with Regard to El Salvador, Order of the Court, “Having Seen” ¶ 14 (Inter-Am. Ct. H.R. Aug. 19, 2013), http://www.corteidh.or.cr/docs/medidas/B_se_02_ing.pdf.

12 See European Court of Human Rights, Rules of Court 39 (2014), http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf; Rules of Procedure of the African Commission on Human and Peoples’ Rights 98 (2010), http://www.achpr.org/files/instruments/rules-of-procedure-2010/rules_of_procedure_2010_ en.pdf.

13 See Felipe Gonzalez, Urgent Measures in the Inter-American Human Rights System, 7 Sur Int’l J. Hum. Rts. 50 (2010), http://www.surjournal.org/eng/conteudos/getArtigo13.php? artigo_13,artigo_03.htm.

14 See, e.g., Fernando Basch et al., The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with its Decisions, 7 Sur Int’l J. con Hum. Rts. 8 (2010), http://www.surjournal.org/eng/conteudos/getArtigo12.php?Artigo=12,artigo_02.htm; Alexandra Huneeus, Courts Resisting Courts: Lessons from the Inter-American System’s Struggle to Enforce Human Rights, 44 Cornell Int’l L. J. 493 (2011).

15 An absolute ban is present in Chile, El Salvador, the Dominican Republic, Honduras, and Nicaragua. See La Corte Interamericana de Derechos pide el aborto de la joven de El Salvador, El Mundo (May 20, 2013), http://www. elmundo.es/america/2013/05/30/noticias/1369939149.html; Center for Reproductive Rights, The World’s Abortion Laws 2014, http://worldabortionlaws.com/map/.

16 Amelia, Precautionary Measure 43-10, Inter-Am Comm’n H.R., OEA/Ser.L/V/II.54, doc. 5 rev. 1 (2011).

17 American Declaration on the Rights and Duties of Man art. 1, 1948, O.A.S. Res. XXX (“Every human being has the right to life, liberty and the security of his person.”). 18 Baby Boy Case, Case 2141, Inter-Am. Comm’n H.R., Res. No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev. 1 (1981); American Convention, supra note 4, art. 4(1) (“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”).

19 Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 257 (Nov. 28, 2012).

20 Id. ¶¶ 223-24, 264.

1 At the request of the Inter-American Commission, the identity of the woman for whom the provisional measures are sought is kept confidential, and she is identified with the letter “B.”

2 Rules of Procedure adopted by the Court at its eighty-fifth regular session held from November 16 to 28, 2009.

3 Cf. Matter of the Socio-educational Internment Facility, Provisional measures with regard to Brazil, Order of the Court of February 25, 2001, sixth considering paragraph, and Matter of Guerrero Larez with regard to Venezuela, Order of the Court of November 17, 2009, eighth considering paragraph.

4 Cf. Matter of the Socio-educational Internment Facility, Provisional measures with regard to Brazil, Order of the Court of February 25, 2001, sixth considering paragraph, and Matter of Guerrero Larez with regard to Venezuela. Order of the Inter-American Court of Human Rights of November 17, 2009, eighth considering paragraph.

5 Cf. Case of the “La Nación” Newspaper. Provisional measures with regard to Costa Rica. Order of the Court of September 7, 2001, fourth considering paragraph, and Matter of Wong Ho Wing. Provisional measures with regard to Peru. Order of the acting President of the Court of December 6, 2012, fifth considering paragraph.

6 Cf. Matter of the Capital Detention Center El Rodeo II. Provisional measures with regard to Venezuela. Order of the Court of February 8, 2008, seventh considering paragraph, and Matter of Wong Ho Wing, Provisional measures with regard to Peru. Order of the acting President of the Court of December 6, 2012, fifth considering paragraph.

7 Cf. Case of the “La Nacio´n” Newspaper. Provisional measures with regard to Costa Rica. Order of the Court of September 7, 2001, fourth considering paragraph, and Matter of Wong Ho Wing. Provisional measures with regard to Peru. Order of the acting President of the Court of December 6, 2012, fifth considering paragraph.

8 Cf. Case of Carpio Nicolle et al., Provisional measures with regard to Guatemala. Order of the Inter-American Court of Human Rights of July 6, 2009, fourteenth considering paragraph, and Matter of L.M., Provisional measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph.

9 Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the Inter-American Court of Human Rights of August 29, 1998, sixth considering paragraph, and Matter of L.M., Provisional measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph.

10 Cf. Matters of the Monagas Detention Center (“La Pica”); the Capital Region Penitentiary Center Yare I and Yare II (Yare Prison); the Occidental Region Penitentiary Center (Uribana Prison), and the Capital Detention Center El Rodeo I and El Rodeo II. Provisional measures with regard to Venezuela, Order of the Inter-American Court of Human Rights of November 24, 2009, third considering paragraph, and Matter of L.M., Provisional measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph. 11 Cf. Summary of medical report of March 22, 2013 (file of request for provisional measures, annex 1), and decision of the Constitutional Chamber of May 28, 2013.

12 Minutes of the Medical Committee of the National Maternity Hospital of April 12, 2013 (file of request for provisional measures, annex 4).

13 Communication of the Minister of Health addressed to the Supreme Court of Justice dated April 15, 2013 (file of request for provisional measures, annex 4).

14 Report of the “Latin American Center for Perinatology, Women and Reproductive Health” of the Pan-American Health Organization of April 22, 2013 (file of request for provisional measures, annex 4). 15 Opinion of the Director of the National Maternity Hospital of May 2, 2013 (file of request for provisional measures, annex 7). 16 Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures, annex 11).

17 Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures, annex 11).

18 Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the President of the Inter- American Court of Human Rights of July 13, 1998, sixth considering paragraph, and Matter of L.M., Provisional measures with regard to Paraguay. Order of the Court of July 1, 2001, twenty-second considering paragraph.

19 Report of the “Latin American Center for Perinatology, Women and Reproductive Health” of the Pan-American Health Organization of April 22, 2013 (file of request for provisional measures, annex 4). 20 Newspaper article entitled “Yo quiero vivir, por mi otro hijo. . . si este viniera bien, arriesgarı´a mi vida” [I want to live for my other child . . . if this one was healthy, I would risk my life], published on “elfaro.net” on April 23, 2013 (file of request for provisional measures, tome I, annex 9).

21 Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures, annex 11).

22 The Preamble to the American Convention states that the essential rights of man are not derived from one’s being a national of a certain State, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American States.

23 Report of the Institute of Forensic Medicine of May 7, 2013 (file of request for provisional measures, annex 11).

24 Report presented by the Ministry of Health and incorporated into the State’s report of May 17, 2013 (file of request for provisional measures, annex 13).

25 Cf. Case of Cesti Hurtado. Provisional measures with regard to Peru. Order of the President of the Inter-American Court of Human Rights of January 21, 1998, sixth considering paragraph and second operative paragraph, and Matter of María Lourdes Afiuni, Provisional measures with regard to Venezuela. Order of the President of the Inter-American Court of Human Rights of December 10, 2010, twelfth considering paragraph.