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A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

Published on February 7, 2019        Author: 
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In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment. Read the rest of this entry…

 
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UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

Published on June 13, 2016        Author: 
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Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

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