The UN and the Eighth Amendment
Sir, – The UN Human Rights Committee has found that Amanda Mellet’s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in Ireland in a case of fatal foetal abnormality.
It has held that Ireland must amend its abortion law, including the Constitution if necessary, to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR), including ensuring effective, timely and accessible procedures for pregnancy termination in cases of fatal foetal abnormality in Ireland.
The Taoiseach and others have noted that the findings of this committee are not “binding”.
Here are six legal and policy reasons why Ireland must take good faith steps to implement the findings and comply with its international obligations:
1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).
2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee’s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.
3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).
4. It is immaterial to Ireland’s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee’s decision is not binding, can never be used as justification for non-compliance.
5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.
6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.
Until the legal framework is brought into line with Ireland’s international legal obligations, the likelihood is that women will continue to engage with international legal institutions to seek recognition of rights violations, remedy, and guarantees of non-repetition. – Yours, etc,
1. Prof. Fiona de Londras, University of Birmingham Law School 2. Mairead Enright, Lecturer in Law, University of Kent 3. Prof. Christine Bell, University of Edinburgh Law School 4. Prof. Fionnuala ni Aolain, University of Ulster Transitional Justice Institute 5. Prof. Siobhan Wills, University of Ulster Transitional Justice Institute 6. Prof. Aoife Nolan, University of Nottingham Law School 7. Prof. Laurence O. Gostin, Georgetown Law School 8. Prof. Oscar Cabrera, Georgetown Law School 9. Lilian Abriniskas, Women and Health in Uruguay 10. Sharon Pia Hickey, Teaching Fellow, Global Gender Justice Clinic, Cornell law School 11. Ailbhe Smyth, Coalition to Repeal the 8th 12. Niamh Allen, Head of Membership and Development, National Women’s Council of Ireland 13. Helen Guinane, Parents for Choice 14. Senator Ivana Bacik 15. Professor Tamara Hervey, School of Law, Sheffield University 16. Dr. Rosa Freedman, Senior Lecturer in Law, University of Birmingham 17. Dr. Aoife O’Donoghue, Senior Lecturer in Law, Durham University 18. Dr. Paul O’Connell, Reader in Law, SOAS London 19. Dr. Rose Parfitt, Lecturer in Law, University of Kent 20. Dr. Eilionoir Flynn, Senior Lecturer in Law, NUI Galway 21. Rumyana Grozdanova, Lecturer in Law, University of Liverpool 22. Dr. Anne-Marie Brennan, Lecturer in Law, University of Liverpool 23. Dr. Illan rua Wall, Associate Professor in Law, Warwick University 24. Dr. John Reynolds, Lecturer in Law, NUI Maynooth 25. Dr. Bríd Ní Ghráinne, Lecturer in Law, University of Sheffield 26. Dr. Sorcha McLeod, Lecturer in Law, University of Sheffield 27. Dr. Michelle Farrell, Senior Lecturer in Law, University of Liverpool 28. Maeve O’Rourke, Barrister 29. Dr. Natasa Mavronicola, Lecturer in Law, Queen’s University Belfast 30. Ntina Tzouvala, Lecturer in Law, Durham University 31. Dr. Liam Thornton, Lecturer in Law, UCD 32. Dr. Stefanie Khoury, Postdoctoral Research Associate, University of Liverpool 33. Dr. Kathryn McNeilly, Lecturer in Law, Queen’s University Belfast 34. Dr. Catherine O’Rourke, Senior Lecturer, Transitional Justice Institute, University of Ulster 35. Dr. Alex Schwartz, Lecturer in Law, Queen’s University Belfast 36. Dr. Sheelagh McGuinness, Senior Lecturer in Law, Bristol University 37. Dr. Vicky Conway, Lecturer in Law, Dublin City University 38. Prof. David Whyte, University of Liverpool 39. Dr. Ruth Fletcher, Senior Lecturer in Law, Queen Mary University of London 40. Professor Rosemary Hunter, Queen Mary University of London 41. Dr. Amel Alghrani, Lecturer in Law, University of Liverpool 42. Dr. Anne Neylon, Lecturer in Law, University of Liverpool 43. Dr. Katherine O’Donnell, Associate Professor in Philosophy, UCD 44. Dr. Joan McCarthy, Lecturer in Healthcare Ethics, UCC 45. Goretti Horgan, Lecturer in Social Policy, University of Ulster? 46. Colin Murray, Senior Lecturer in Law, Newcastle University 47. Dr. Sinead Ring, Lecturer in Law, University of Kent 48. Dr. Elizabeth Campbell, Senior Lecturer in Law, University of Edinburgh 49. Dr. Fergus Ryan, Lecturer in Law, NUI Maynooth 50. Dr. Louise Crowley, Senior Lecturer in Law, UCC 51. Dr. Catherine O’Sullivan, Senior Lecturer in Law, UCC 52. Dr. Sara Ramshaw, Senior Lecturer in Law, Exeter University 53. Dr. Alan Greene, Lecturer in Law, Durham Law School 54. Jane Rooney, PhD Candidate in Law, Durham University 55. Muireann Meehan Speed, PhD Candidate, Oxford University 56. Eileen Crowley, White & Case LLP 57. Wendy Lyon, Solicitor 58. Orla Ryan, Barrister 59. Kate Butler, Barrister 60. Suzanne Guilloud, Barrister 61. Claire Nevin, Human Rights and Social Affairs Adviser for the EU Delegation to the Council of Europe (personal capacity)