Media – Page 3 – Professor Fiona de Londras

HRC Decision on Irish Abortion Law

Cross posted from Human Rights in Ireland; reprinted in the Irish Times

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

Column on the Brussels Attacks

Last evening The Conversation published a column from me on the terrible attacks in Brussels yesterday. The piece has already been picked up and reprinted widely, including by ABC’s The Drum and the Sydney Morning Herald, and can be read in full here. The introduction is as follows:

The attacks of March 22 in Brussels were shocking, but not surprising. They reinforced what many have known for years: Belgium has a serious problem with terrorism.

For a long time, security analysts have expressed anxiety about the depth and extent of radicalisation and fundamentalism in the country. It is thought that Belgium has the highest per capita rate of foreign terrorist fighters of any EU country. A February 2016 “high-end estimate” puts that number at 562 out of a population of just over 11 million.

Last November it was revealed that some of the Paris attackers had Belgian connections and were known to the security forces there, and Brussels was virtually locked down for almost a week.

Over recent years there have been attacks on Belgian museums, supermarkets and trains, raising questions about why the country cannot seem to effectively tackle the challenges of insecurity.

As ever, the answer is not a simple one. Rather, as observed by Tim King, Belgium’s “failures are perhaps one part politics and government; one part police and justice; one part fiscal and economic. In combination they created the vacuum that is being exploited by jihadi terrorists”.

Interview at KCL on transnationalism, hybridity and counter-terrorism

Earlier this month I was pleased to participate in the KCL transnational law colloquium, where I presented some work on hybridity, counter-terrorism and human rights including and beyond law. After the colloquium I was interviewed on some of the themes that my presentation raised, and that interview is now available (audio file only) on the KCL YouTube stream here.

Accounting for Rights in EU Counter-Terrorism: Recording

In June I gave a seminar at the Oxford Human Rights Hub entitled ‘Accounting for Human Rights in EU Counter-Terrorism’. The abstract is reproduced below (original), and a recording of the seminar is available on the OxHRH website here.

While a baseline of security is required in order to enjoy rights per se, ‘countering terrorism’ often infringes on the rights of suspected terrorists and, more broadly, undermines social cohesion and the rule of law. For that reason, it is important that we pay proper attention to rights in the making, implementation and review of counter-terrorism laws and policies.

In spite of this, the pre-legislative process in EUCT is problematic from a rights-based perspective, even where the formal ex ante impact assessment process is employed. This process, undertaken by the Commission, engages with stakeholders to predict the environmental, economic and social impacts of proposed measures and provide an evidence-base for political decision-making.

Social impacts include impacts on rights. Understandably, however, the qualitative analysis of rights impact is not easily assessed alongside the quantitative analysis of economic impact, with more ‘concrete’ data often appearing to receive more analytical weight. Thus, it is not unusual when reading these assessments to notice that the analysis of rights is ‘light touch’.

This might be expected given that forward-looking analyses are speculative, especially in relation to values that are difficult to quantify. But it points towards a need to afford more weight to rights in these assessments, especially as they can also shape later analyses of the ‘effectiveness’ of measures where such ex post assessment takes place.

We can only ascertain a measure’s actual impact once it is operational. Even at that point it is important to remember that the impact of EUCT will not be uniform across every member state or social group: the vast majority of implementation is national and there can be significant variations across the member states.

In spite of this, formal ex post facto review of EU counter-terrorism is remarkably infrequent, even where the measure in question expressly requires it. Of the 88 legally binding minding measures introduced since 2001, 68 required review, only 33 of which have so far taken place on time (10 have not reached their time limit).

The lack of effective and regular ex post facto review of EUCT is highly problematic from a rights-based perspective. The necessity and proportionality of any measure may vary according to changing security and social circumstances and thus requires regular review. Without this, we must rely on the hope that a court will have the opportunity to judicially review a measure to assess its legality, which assessment is only part of a comprehensive rights-related understanding of the impact of counter-terrorist measures.

The EU is a relative newcomer to counter-terrorism, and although it takes some account of rights, this is not sufficient to ensure EUCT is as rights-compliant as possible. The EU does have the potential to account more fully for rights in its counter-terrorism, in particular by enhancing participation in the life cycle of counter-terrorist law- and policy-making and instigating regular, participatory and evaluative review.