1

The International Court of Justice (ICJ) — the principal judicial organ of the United Nations — has ruled that the statements of UN expert committees do not, in themselves, constitute a binding interpretation of treaties.

2

At most, they remain a “supplementary means” of interpretation that no one is obligated to accept.

3

This means that, among other things, the so-called “right to abortion” derived by UN committees has no basis in treaties and creates no international obligation.

4

Poland retains sovereign freedom over its own legal regulations, including the protection of life at the prenatal stage, in keeping with the actual text of the treaties.

Origins of the case

The International Court of Justice (ICJ) — the principal judicial organ of the United Nations — has stated unequivocally, in an advisory opinion, that the pronouncements of treaty-monitoring bodies (committees made up of independent experts) do not, in themselves, constitute a binding interpretation of a treaty and do not create international obligations for states. Although the case before the ICJ formally concerned the right to strike, this finding is of fundamental importance for the long-running dispute over whether UN committees can, through their pronouncements alone, create a so-called “right to abortion.”

The dispute that led to the opinion had been unfolding within the International Labour Organization (ILO) for more than a decade. Since 2012, a group of employers had argued that the organization’s supervisory bodies — including the Committee of Experts on the Application of Conventions and Recommendations — had exceeded their mandate by deriving protection for striking workers from Convention No. 87, which does not mention the right to strike explicitly. The internal mechanisms of the ILO’s tripartite structure (governments, employers, and workers) failed to resolve the dispute, prompting the ILO’s Governing Body to request an advisory opinion from the ICJ in November 2023. This was only the second such request in the ILO’s history — the first was submitted back in 1932, to the Court’s predecessor. The case drew broad interest: it received 31 written statements, and 18 states and five international organizations took part in the hearings.

What did the Court establish?

The opinion was issued in the case Right to Strike under ILO Convention No. 87 (Case No. 191). By a vote of 10 to 4, the Court held that Convention No. 87 protects the right to strike — basing this conclusion primarily on the text of the convention itself, under the general rule of interpretation set out in Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT). What matters most for present purposes, however, is the Court’s determination of the legal character of expert bodies’ positions. The ICJ indicated that:

  • the pronouncements of such bodies are not “subsequent practice” within the meaning of Article 31(3)(b) of the VCLT and do not automatically create an agreement among the states parties on the interpretation of a treaty. A unilateral declaration by a body does not constitute such an agreement, even if repeated consistently and with authority;
  • they can influence treaty interpretation only derivatively, to the extent that they prompt or reflect the states’ own practice, which itself must satisfy the “agreement” requirement of that provision;
  • beyond that, they remain merely a supplementary means of interpretation under Article 32 of the VCLT, which — as the Court stressed — no body applying the treaty is obligated to accept, whether an international court or, still less, a domestic court or authority.

It is telling that even in a case whose substantive outcome — protection of the right to strike — matched the position the ILO’s supervisory bodies had advocated for years, the Court still declined to treat their pronouncements as capable of creating a freestanding treaty obligation. The positions of those bodies played a confirmatory role; they were not, by themselves, the legal basis for the ruling.

The “great weight” formula and dissenting opinions

The Court applied — with appropriate modifications — the “great weight” formula first articulated in its 2010 judgment in Ahmadou Sadio Diallo with respect to the UN Human Rights Committee. Yet according “great weight” to a supervisory body’s interpretation does not amount to a legal obligation to accept it — the possibility of taking a position into account as a supplementary element does not transform it into a source of obligation. Nor was the formula adopted uncritically: Judge Bhandari suggested that, given the ILO’s tripartite bodies, a “due weight” formula would be more appropriate, while Judge Nolte cautioned that the language from Diallo should not be read as a general acknowledgment that treaty bodies’ pronouncements always merit “great weight.”

The ICJ’s position is not an outlier in international jurisprudence. The Court systematized an approach it had already outlined in Diallo (2010) and Whaling in the Antarctic (2014), and which the International Law Commission described in its 2018 Conclusions. Their special rapporteur, Georg Nolte, now sits on the ICJ and was among the majority that issued the opinion at hand. Reservations about the de facto law-making role of treaty bodies are also voiced by part of international-law doctrine, which points out, among other things, that the UN Human Rights Committee’s case law on abortion does not, in fact, offer legal reasoning for the positions it adopts. The 2011 San José Articles declaration is written in a similar spirit.

Implications for the dispute over the “right to abortion”

The Ordo Iuris Institute has long pointed out that the positions of UN committees — the Human Rights Committee, the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on Economic, Social and Cultural Rights, and others — do not create binding international obligations, particularly with respect to the so-called “right to abortion” that these bodies claim exists. The ICJ’s opinion of May 21, 2026, reinforces this argument, since it comes from the UN’s principal judicial organ and directly addresses the methodology for treating expert bodies’ pronouncements in the process of treaty interpretation.

Applying this methodology leads to the conclusion that the claim of a “right to abortion” — advanced, among others, by the UN Human Rights Committee in General Comment No. 36 of 2018 and by the CEDAW Committee — has no basis in existing treaties and creates no international obligation for states parties. Invoking committees’ positions as a freestanding, binding source of obligation in this area is a methodological error that, after the ICJ’s advisory opinion, no longer finds support in the authoritative interpretation of international law. As a result, states, including Poland, retain the freedom to shape their domestic regulations on the protection of prenatal life as a matter of sovereign choice, so long as those regulations remain consistent with the text of the treaties as read under the rules of the Vienna Convention — rather than with whatever committees would like to find in that text.

“It should be recognized that no United Nations committee can, through its statements alone, determine the content of a treaty against its text and against the position of the states parties. This also applies to claims that a so-called right to abortion follows from human rights treaties,” emphasizes attorney Anna Kubacka, an analyst at the Ordo Iuris Center for International Law.

Translated using Claude.ai

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Source of cover photo: iStock

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