UN committee ruling on abortion: An obligation on the Government to legislate

The onus on the State is a political/diplomatic one – how long does Ireland mind being cited internationally as being in breach of the covenant?

 

When Ireland in 1990 signed up to the optional protocol to the International Covenant on Civil and Political Rights, we agreed to give the UN’s Human Rights Committee (HRC) the right to interpret our compliance with the covenant and to be bound by its rulings.

So, when the HRC gave its “view” on Thursday that Ireland is in breach of its obligations under the covenant – articles seven (freedom from inhuman and degrading treatment), 17 (privacy), and 26 (equality before the law) – and ordered this State both to amend its abortion laws and to compensate the courageous plaintiff Amanda Mellet, the committee reminded Ireland that “the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognised in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred”.

That obligation is one, however, in international law. Unlike the rulings of the European Court of Human Rights (ECHR), it is not justiciable or enforceable in domestic law. The onus on the State is largely a political/diplomatic one – how long does Ireland mind being cited internationally as being in breach of the covenant? (Historically, as David Norris will attest of another convention, the State has in this regard an unfortunately high tolerance of embarrassment).

But the UN committee’s ruling does indeed ratchet up pressure on Ireland. Importantly, it confirms the evolving trend in international courts’ jurisprudence towards – pace Amnesty, they are not there yet – seeing abortion rights as human rights. In this specific, narrow case of the right to abort a foetus that has a fatal abnormality, the unanimity of the committee suggests, however, that this is now beyond doubt, and that this right joins other fully acknowledged rights as a human rights norm.

That makes the challenge for the Government in respect of this issue more complicated and more urgent than dealing with the more general, broader demand to “repeal the Eighth Amendment”. Promising simply to leave the issue to be debated by a “citizens’ convention”, which may or may not decide to embrace this reform along with other special cases like pregnancies linked to rape or incest, will not meet the Government’s obligation to assure the UN committee that the change will be made. It is supposed to provide that assurance within six months.

And it raises once again the likely vexed issue of the Government parties finding that they will need to whip TDs behind what they will be told is not an option, but a legal requirement on the State.

The challenge will be even more fraught if the Government is advised – not by any means certain – that a constitutional amendment, and therefore referendum, will be required, although polls suggest strong public support for the move.

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