Ireland and the ‘Right’ to Access Abortion Assessing the Concerns of the Human Rights Committee Jason Michael McCann ABSTRACT This brief review of the case for a right to access abortion, in light of the 2014 observations and recommendations of the Human Rights Committee, will examine the wording and interpretation of the International Convention on Civil and Political Rights, and the challenge these present to the sovereignty of the Irish state, to assess what obligations Ireland has (if any) to the opinions of the monitoring body. THE HUMAN RIGHTS COMMITTEE has been consistent in its observations of the implementation of the International Convention on Civil and Political Rights by its state parties with regard to women’s right to life as applied to access to safe abortion. 1 These observations and recommendations for a revision of the Constitution of Ireland and Irish laws pertaining to abortion in the state have been cited by numerous non-governmental organisations, including the Irish Family Planning Association and Amnesty International, in an attempt to put pressure on the Irish government, on human rights grounds, to acquiesce to such recommendations. In the course of this brief review the obligations of Ireland in relation to its present international treaties will be discussed in light of these recommendations, the wording and interpretation of the treaties themselves, and Ireland’s sovereignty. Given the limitations, this discussion will focus exclusively on the Committee’s August 2014 concluding observations on the fourth periodic report of Ireland.2 In reference to the “inherent right to life” in Article 6 of the Convention3 the Committee, in its observations on Poland, noted that laws restricting women’s access to abortion in and of themselves impact upon the pregnant woman’s right to life.4 Such language, which relates both to the right to life and health, forms an implicit basis for a right to abortion, and therefore allows NGOs to speak of the Irish Constitution’s affirmation of the “the right to life of the unborn and, with due regard to the equal right to life of the mother,”5 as “irreconcilable with women’s human rights, including the right to the highest attainable standard of physical and mental health.”6 The inference is clear, that in the Amnesty International, “She Is Not a Criminal: The Impact of Ireland’s Abortion Law” (London: Amnesty International Ltd., 2015), 31-32. 2 UN Human Rights Committee (HRC), Concluding observations on the fourth periodic report of Ireland, 19 August 2014, CCPR/C/IRL/CO/4, at para. 9. 3 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 6.1 4 UN Human Rights Committee (HRC), Concluding observations of the Human Rights Committee on Poland, 2 December 2004, CCPR/CO/82/POL, at para. 8. 5 Constitution of Ireland, Article 40.3.3° 6 Irish Family Planning Association, “Stakeholder report of the Irish Family Planning Association on reproductive rights Second Universal Periodic Review of Ireland: 2016.” 1 observations and recommendations of the Committee, as well as their reading by NGOs, access to safe abortion is being posited as an extension of the Convention’s right to life, and therefore a human right towards which Ireland is failing in its obligation. With respect to this, the Committee recommends that Ireland “revise its legislation on abortion, including its Constitution, to provide for additional exceptions…”7 Ireland, in rejecting these recommendations, may rely among others on two lines of defence; the question of sovereignty and the problems concerning the interpretation of treaties. It must be noted that the authority responsible for these observations and recommendations, the Human Rights Committee, is an independent monitoring body of experts and not the Convention itself.8 In effect then these recommendations belong to the body of soft law, referring to “international norms that are deliberately non-binding in character but still have legal relevance, located ‘in the twilight between law and politics,’”9 and as such must be considered only as interpretation. Whether or not Ireland acquiesces to their legal force as an obligation vis-à-vis the Convention becomes a matter of how any party to a treaty ought to interpret the same. There exists in the corpus of international human rights law a singular treaty, legally binding upon its state parties, which makes explicit mention of abortion. The Maputo Protocol stipulates the protection of the …reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.10 Yet this African Women’s protocol, to which Ireland is not a party, has no bearing on Irish law. As there is no treaty to which Ireland is a signatory in which an explicit right to access abortion is mentioned, the case for abortion (or access to abortion) as a right has to be made through the interpretative mechanisms of the various treaty monitoring authorities. Treaties and their interpretation are not neglected in international law. According to Article 31 of the Vienna Convention on the Law of Treaties all treaties entered into by a state party “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”11 This of course leaves the Human Rights Committee and other treaty monitoring bodies in a difficult position in terms of their reading https://www.ifpa.ie/sites/default/files/documents/submissions/ifpa_stakeholder_submission_upr_ireland_sept_1 5.pdf (accessed 18 April, 2016) 7 UN Human Rights Committee (HRC), CCPR/C/IRL/CO/4, at para. 9. 8 UN Office of the High Commissioner on Human Rights, “Human Rights Committee.” http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx (accessed 18 April 2016) 9 Jon Birger Skjærseth, Olav Schram Stokke, and Jørgen Wettestad, “Soft law, hard law, and effective implementation of international environmental norms,” Global Environmental Politics 6, no. 3 (2006): 104-120. 10 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) reprinted in 1 Afr Hum Rts LJ 40 (African Women Protocol) art 14.2c 11 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 31.1 of abortion rights into treaties in which there is no mention of the same either in the ordinary meaning of the language or in the context of their original signing. In consideration of this rule on the interpretation of treaties, Ireland is a party to the United Nations Convention on the Rights of the Child in which’s preamble the child is explicitly said to be due the right to safeguards and care, including the protection of law, “before and after birth.”12 Certainly in the ordinary meaning of the terms of the treaty it chimes perfectly with the language of the Constitution of Ireland when it both recognises the “right to life of the unborn (a terminology somewhat less humanising than the Convention on the Rights of the Child’s ‘Child’),” and its commitment to “defend and vindicate that right” by law.13 Ireland, in defence of its Constitution and legislation in the face of the Committee’s observations and recommendations, must also face the question of its sovereignty. It is frequently the case when entering into treaties (as is the case with Ireland signing the International Covenant on Civil and Political Rights) that states cede some of their sovereignty. 14 The problem in this particular case is this: At what point in the interrelation of the laws of the treaty together with their subsequent interpretations and the law of the state does the state party have the right to assert its sovereignty over and against the terms of the treaty? In order to answer this question, three notionalities of sovereignty should be considered. Firstly there is within the modern democratic nation state the idea of the sovereignty of the people, the idea that the citizens of the state have a right to determine for themselves the customs and laws which best suit them as a nation. Secondly there is de jure sovereignty,15 perhaps better understood as the Westphalian sovereignty in which the state is recognised together with its right to selfdetermination within the wider community of nation states. Then, thirdly, there is a natural sovereignty, appealing as it does to a Natural Law that is binding upon all people always and everywhere. The right of the nation (or the people of a national territory) to assert its sovereign right is an ancient concept. In Scotland the right to popular sovereignty is given voice in the Declaration of Arbroath where, at a time when monarchs were widely held to be divine appointments, the Scots set their case before the Papacy, that “as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English.”16 Articles 1 and 2 of the Constitution of Ireland; in defining the nation as the people of Ireland, reiterate this ancient and universally accepted sovereignty in the popular sense, and of course this finds its fullest international expression in the 12 Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3 preamble Constitution of Ireland, Article 40.3.3° 14 Grethel Aguilar Rojas and Alejandro Iza, Governance of shared waters: Legal and institutional issues. IUCN, in collaboration with the IUCN Environmental Law Centre, Bonn, Germany, 2011, 127. 15 Anthony J. Colangelo, “De Facto Sovereignty: Boumedience and beyond.” The George Washington Law Review 77 (2008), 626. 16 Declaration of Arbroath, 1320 13 Universal Declaration of Human Rights where “everyone has the right to a nationality,”17 and that “the will of the people shall be the basis of the authority of government.”18 Given the proper consent of the people of the nation, the state which represents that consent has a long-established right to govern the territory and people of the nation insofar as the nation is recognised by other nations. This has been an accepted principle of international relations since as early as the end of the Thirty Years War with the signing of the Treat of Westphalia.19 These concepts of national sovereignty, however, have their limitations, and therefore in and of themselves cannot provide an adequate defence against the imposition of law from the international community or the imposition of interpretations of treaty law already entered into. When the law of the nation fails to legislate against that which is so egregious to reason, as was the case in Nazi Germany (relying as it had on its sovereign right as a state), then an appeal can and must be made to a higher authority, to a higher sovereignty. It was of this situation that Justice Robert H. Jackson, chief United States prosecutor at the Nüremberg Trials, said, The last stand of those implicated was not that the evidence failed to convict of the acts, but that the law had failed to make the acts crimes. 20 In an attempt to articulate this higher sovereignty, Justice Jackson wrote, “Common law depends less on what is commanded by authority and more on what is indicated by reason.”21 Again, this appeal to reason as a source of law was fundamental to the Universal Declaration of Human Rights,22 and indeed, albeit in a [Christian] theistic expression (which is by no means strange to the language of Constitutions)23, to the Constitution of Ireland’s opening dedication: In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred…24 It is upon such a tripartite structure of sovereignty, when all of its parts are in accord with one another, that the nation state has the right and the legal and moral obligation to assert its positions, arrived at in good faith, against the letter or the interpretation of treaties. That the people of Ireland, by national referendum, have stated their opinion – and that the state has enacted laws to the end of that opinion – then meet the requirements of both popular and de jure sovereignty. A basis for the reasonability qua the higher sovereignty must then be sought in international law. 17 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 15.1 18 UDHR art 21.3 Treaty of Westphalia, 1648 20 Eric Lane, “Mass Killing by Governments: Lawful in the World Legal Order,” New York University Journal of International Law & Politics. 12 (1979): 251. 21 Robert H. Jackson, “Nuremberg in Retrospect: Legal Answer to International Lawlessness,” American Bar Association Journal (1949): 885. 22 UDHR art 1 23 See also the “Laws of Nature and of Nature's God,” of the United States’ Declaration of Independence, 1774 24 Constitution of Ireland, dedication 19 Beginning with the aforementioned Convention on Civil and Political Rights, it is interesting that Article 6 also prohibits the carrying out of the death penalty in the case of pregnant women. 25 The implication here is that the law is interested in the life interest of the unborn; the recognition of the special care owed to the child mentioned, as noted above, in the Convention on the Rights of the Child. When the American Convention on Human Rights’ understanding of the right to life “from the moment of conception”26 is added to this body of law it becomes increasingly clear that Ireland’s law is not unique in concluding the humanity of the unborn child, and therefore affording it rights and legal and Constitutional protections. In light of the foregoing discussion it would seem at least reasonable to conclude, all personal opinions aside, that the observations and recommendations of the Human Rights Committee reflect interpretations of the treaty not fully consistent with the ordinary meaning of the words of the treaty or with the specific language of other treaties referring to the inherent human rights of the unborn child. This conclusion would also therefore find that the use of these inconsistent observations and recommendations by Amnesty International, the Irish Family Planning Association, other NGOs and interested parties is perhaps a manœuvre to establish as customary law something from a body of soft law which has a thin – if any – claim to legal reality. It would also find, in consideration of the understanding of the child elsewhere in international law and treaties to which Ireland is bound, that the Irish state does in fact have legal and moral grounds on which to reject the observations and recommendations of such treaty monitoring bodies. 25 26 CCPR art 6.5 The American Convention on Human Rights (entered into force 18 July 1978) art 4.1