Category: Uncategorized

Public Lecture in Hong Kong: A Rule of Law Crisis in Europe?

EDIT (1.9.16): It seems there is quite a bit of interest in this topic, so the location of the lecture has been changed to Room 724 & 725, 7/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong. Registration is still open!

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I will spend next week as a visitor at the Centre for Comparative and Public Law at the University of Hong Kong. While there, I will be participating in a workshop and collaborating with colleagues in the CCPL, meeting with doctoral researchers and discussing their work with them, and also giving a public lecture on Friday, September 3rd.

The lecture, “Is there a Rule of Law Crisis in Europe?”, will take place at 5:30pm on the Centennial Campus of HKU (Small Moot Court, Room 723 Room 724 & 725, 7/F Cheng Yu Tung Tower). Registration is free but encouraged, as there is a registration limit of 50. If you are in Hong Kong at the time you can register here. Continue reading “Public Lecture in Hong Kong: A Rule of Law Crisis in Europe?”

Defending academic freedom in Turkey

In the wake of last week’s failed coup, President Erdoğan of Turkey has been taking ‘decisive’ steps against those he claims or suspects were involved in the organisation of the coup or otherwise supported it. This has included people involved in the education sector: 21,000 teachers have had their licences revoked, over 1.5 thousand university deans have been instructed to resign, and a ban on international travel for professional purposes has been placed on all university academics.

There is, of course, concern that these activities are not only oriented towards removing ‘plotters’ from public life, but also quietening all opposition to the Erdoğan regime and, thus, greatly undermining critical democratic spaces represented by universities and other educational settings. I spoke about this yesterday on the Russia Today news channel and the interview and associated news story is available here.

I have also started a petition, which so far has over 600 signatures, directed specifically towards expressing solidarity to our academic colleagues in Turkey and asking President Erdoğan to rethink and revoke the travel ban. Please do consider signing it and share it widely.

There is also an open letter here, condemning the purge in Turkish universities, which I would also encourage people to sign.

The more support our colleagues in Turkey get from their international colleagues, the better.

New blog: Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination

As an associate of the Oxford Human Rights Hub, I occasionally provide posts for the Hub’s excellent blog. Yesterday my latest contribution was published. In “Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination“, I consider the challenges posed by Mellet v Ireland and how the government might respond to them. I also argue against taking a narrow approach of addressing access to abortion in cases of fatal foetal abnormality only, and leaving the remainder of the 8th Amendment regime changed. The full post can be accessed here, and closes thus:

The Irish people voted on abortion in 1983, 1992 and 2002, but no referendum has ever offered the opportunity to liberalise abortion law. The Taoiseach (Prime Minister) has committed to convening a ‘Citizens’ Assembly’ to consider inter alia revisiting the 8th Amendment, and the UNHRC’s decision is expected to expedite this. However, to take the UNHRC’s decision as outlining ‘all’ that has to be done to make Irish abortion law compliant with human rights law and basic conceptions of bodily integrity, autonomy and self-determination, would be to mitigate the cruelty of the 8th Amendment only in a very particular kind of circumstance (FFA) without addressing the overall dilemma for pregnant women in Ireland. Thus, it is imperative that the terms of reference for the Citizens’ Assembly are expansive and allow for every option to be considered, including placing a positive statement of the right to self-determination in all medical matters into the Constitution.

The likelihood of that happening, however, seems low as long as the Government seems unwilling to have ‘big’ and difficult conversations about the status of the foetus, autonomy and self-determination, choice, medical care and medico-legal culture, belief, and morality. While decisions like the UNHRC’s can prompt political action, they cannot compel this difficult, uncomfortable, but necessary national conversation. Only political leadership and courage can do that. We wait to see whether that will be the legacy of the promised Citizens’ Assembly.

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.