Extraterritorial duties to protect and its envolvement - illustrated by the example of abortion in the context of development cooperation
When the German state supports projects abroad that involve the realisation of sexual and reproductive health and rights, this raises questions about the validity of the German Basic Law in development cooperation. Some partner countries pursue a more liberal approach to abortion than Germany. In the context of development work, this can lead to conflicts with German fundamental rights. This is because it is not possible to simply transfer domestic German standards to resolve the conflict between the protection of unborn life and the rights of pregnant women in development work due to the exceptional situation of the action or the genesis on the territory of the partner country. The Basic Law is based on international law and thus opens up room for manoeuvre for German development workers. This is based on joint obligations of the partner countries under international law and respect for the sovereignty of the developing country.
Citation:
Fontana, S.; Lang, L. Extraterritoriale Schutzpflichten und ihre Entfaltung – dargestellt am Beispiel des Schwangerschaftsabbruchs im Kontext der Entwicklungszusammenarbeit. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 2024, 84 (2), 331-364. DOI: 10.17104/0044-2348-2024-2-331
Story Highlights:
- In its 2021 climate decision, the Federal Constitutional Court postulated for the first time a development in the dimension of the duty to protect.
- In the case of development cooperation, the fundamental rights provisions of the Basic Law must be enforced within the framework of what is possible under international law.
- However, joint obligations under international law and respect for the sovereignty of the partner country must be upheld.
- The example of South Africa's more liberal laws on abortion shows that cooperation is in line with common human rights obligations.
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How to guarantee sexual and reproductive health and rights in the partner country
In 1996, the Republic of South Africa liberalised the right to abortion with an unconditional right for a pregnant woman to have an abortion within the first twelve weeks of pregnancy. The present paper by Sina Fontana and Lorenz Lang shows in detail that the fundamental right to protection can also be developed in this context in the dimension of the duty to protect. In order to be in line with the South African legal situation, the principles developed by the Federal Constitutional Court for the protection of the unborn life must be transferred to the local legal situation in a suitably modified way. However, the more liberal interpretation of the development cooperation in the field of abortion compared to the German legal situation does not conflict with the German legal situation for constitutional reasons. Modifications due to public international law result in a greater scope of action in external action than in domestic action – in most cases, this results in a framework for a corridor of action that is in conformity with public international law.
In the specific example, this means that the German state can justify deciding against a withdrawal and in favour of continuing development cooperation. This serves to strengthen interstate relations and to guarantee a minimum standard of sexual and reproductive health and rights in the partner country South Africa. In this respect, the Federal Constitutional Court had ruled that the German state can opt for a reduced level of protection compared to German law; in particular, if the fundamental rights would otherwise be implemented to an even lesser extent. In the case of South Africa, abortions could be provided for which abortions would not have occurred if the development work had been withdrawn. If they do, however, the sexual and reproductive health of those affected could be endangered in the present cases as a result of unsafe abortions. Overall, additional protection of life can therefore be assumed here and thus a convergence towards the realisation of all the rights concerned. This consideration reflects the fundamental and human rights tension between the protection of life on the one hand and sexual and reproductive health and rights on the other. The resolution of this tension is not assessed uniformly at the international level and under international law – even in the domestic discourse in many states, as in Germany, there is no consensus on this question.
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State obligations to protect
"The state has an obligation under international law to respect, protect and fulfil human rights. States must provide protection against human rights violations committed within their territory and/or jurisdiction by third parties, including business enterprises. This requires that they take appropriate measures through effective policies, legislation, other regulations and judicial decision-making procedures to prevent, investigate, punish and redress such violations." (Source: German Federal Ministry of Labour and Social Affairs)
The public sector must therefore protect and promote fundamental rights in order to fulfil its duty to protect.