Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found – in Mellet v Ireland[4] and Whelan v Ireland[5] – that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees’ views as not being ‘binding’ and ‘not like the European court’.[6] This exemplifies the confusion that exists regarding Ireland’s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law.

Ireland should adhere to the views of the Committees.

The views of the Committees should not be ignored for a variety of reasons. First, although the respective Committees cannot issue binding judgments, they are made up of a group of experts in human rights law and are mandated to provide authoritative interpretations of the respective treaties. Under the international law rule of pacta sunt servanda,[7] Ireland must comply with treaties that it is a party to in good faith.

Second, Article 27 of the Vienna Convention on the Law of Treaties provides that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.[8] This position was reiterated by the Human Rights Committee in the decisions of Mellet and Whelan, and it promptly dismissed the constitutional protection of the life of the unborn as justifying Ireland’s treatment of the respective women.[9]

Third, a state’s international reputation is undermined by non-compliance with international treaties. For example, a State Party’s failure to implement the Human Rights Committee’s views: “becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations.”[10] Relatedly, ignoring the views of such Committees, could lead to subsequent complaints being brought and subsequent violations being found, which increases reputational damage to the State.

Ireland’s International Law Obligations

The various Committees have called on Ireland to ensure access to abortion in three specific circumstances: (i) in cases of fatal foetal abnormality,[11] (ii) where pregnancy is the result of rape or incest[12], and (iii) where the woman’s health or life is in danger.[13] In respect of the latter circumstance, Ireland’s present laws do not provide for a right to an abortion where the health as opposed to the life of the mother is at risk and this has been raised as a concern. It should be noted that in highlighting these categories, we are not arguing that these are the only circumstances where abortion should be provided, rather we are arguing that these are the minimum circumstances which have been specified by the relevant Committees where a right to an abortion arises under international law. States have discretion to provide abortion in broader circumstances, and many states already do.

Various committees have also recommended that abortion be decriminalised in all circumstances in Ireland.[14] Finally, the Committees have requested Ireland to clarify the information which can be provided in Ireland on abortion services abroad. Individuals seeking terminations abroad are often faced with a dearth of information on such services as health professionals cannot ‘advocate or promote’ terminations under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.

Until Ireland brings its laws in line with its international obligations it will continue to receive criticism from the international community. It is crucial that the Irish public are made aware of these international law obligations so that they can exercise their right to vote in an informed manner when a referendum on abortion finally occurs.

[1] See Irish Family Planning Association, ‘United Nations Torture Committee poses tough questions on Ireland’s abortion laws’ (Press Release, 27th July, 2017) https://www.ifpa.ie/UNCAT-2017-2

[2] See, Ellen Coyne, ‘UN challenges Ireland on human rights before abortion vote’ (28th July, 2017) The Times (Irish Edition) p. 1.

[3] This includes, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), and the Committee on Economic, Social and Cultural Rights (CESCR).

[4] ICCPR Human Rights Committee, Amanda Mellet v Ireland, 9 June 2016, UN Doc CCPR/C/116/D/2324/2013.

[5] ICCPR Human Rights Committee, Siobhán Whelan v Ireland, 12 June 2017, UN Doc CCPR/C/119/D/2425/2014.

[6] Pat Leahy, ‘UN abortion ruling is “not binding”, Enda Kenny says,’ (15 June 2016) Irish Times available at http://www.irishtimes.com/news/politics/un-abortion-ruling-is-not-binding-enda-kenny-says-1.2684762

[7] Article 26, 1969 Vienna Convention on the Law of Treaties.

[8] See discussion in Síobhán Mullally, ‘Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’ CCJHR Blog (16th June, 2016) available at http://blogs.ucc.ie/wordpress/ccjhr/2016/06/16/mellet-v-ireland-legal-status-un-human-rights-committees-views-2/

[9] See General Comment No 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights CCPR/C/GC/33.

[10] Para 17, General Comment 33.

[11] This includes: Human Rights Committee views in Mellet v Ireland, Whelan v Ireland. See also, Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43 which recommended that terminations be legalised in cases of severe as opposed to fatal impairment of the foetus;

[12] This includes, the Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9. See also, the Committee on the Elimination of Discrimination against Women, Concluding Observations on the 7th and 8th periodic reports of Peru CEDAW/C/PER/CO/7-8, 24 July 2014.

[13] This includes concerns raised by the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014); Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3.

[14] This includes: Committee on the Rights of the Child, Concluding observations on the combined third

and fourth periodic reports of Ireland CRC/C/IRL/CO/3-4; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. The Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3 and the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) which expressed concern over the criminalisation of abortion.

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

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