Conference on Reforming Abortion Law: Comparative Perspectives

Conference

Reforming Abortion Law: Comparative Perspectives

March 22nd 2013 (1.30pm – 5.30pm)

(Registration from 1-1.30pm)

 

Centre for Criminal Justice and Human Rights, Faculty of Law,  University College Cork

 

This event will mark the launch of the Gender, Law And Sexuality (GLAS) research initiative in the Faculty of Law, University College Cork. This initiative supports collaborative and interdisciplinary research in UCC Law including in fields of human rights law, health and medical law, employment law, migration and refugee law, criminal justice and family law.

 

Chair:  Hon. Mr. Justice Seán Ryan, High Court  (Chair of Expert Group on the judgment in A ,B and C v Ireland )

 

Speakers

Minister for Health, Mr James Reilly T.D. (invited)

Professor Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University NY

Professor Blanca Rodriguez Ruiz, Dept of Law, University of Sevilla, Spain

Dr Ruth Fletcher, Dept of Law,  Keele University, UK

Johanna Westeson, Centre for Reproductive Rights

Professor Siobhán Mullally, University College Cork

Dr Claire Murray, University College Cork

 

Venue: Brookfield Health Sciences Complex, College Road, Room G_06, University College Cork

BOOKING DETAILS:

Registration Fee: €40

Trainee Solicitors and Barristers €15

Students: €10

 

Online booking and fee payment available at: https://www.uccconferencing.ie/product/reforming-abortion-law-comparative-perspectives/

 

Registration Fee can also be paid at the event or preferably in advance by cheque payable to University College Cork Law Department (Send to: Noreen Delea, Dept of Law, University College Cork, Cork, Ireland)

 

Advance Booking is essential

 

For queries, contact:  Noreen Delea at:  ccjhr@ucc.ie

 

Conference convenors: Prof Siobhán Mullally and Dr Claire Murray, Law Faculty, University College Cork

 

 

4 CPD Group Hours available

 

Parking at the main UCC campus, and at the Brookfield complex, is extremely limited.

The venue is fully accessible. Please notify us of any specific accessibility requirements.

This event is supported by an Irish Research Council New Foundations Award and the Dean of Law Strategic Fund

Justice for Magdalenes by Professor Siobhán Mullally

On Monday February 18th 2013, the CCJHR hosted a seminar with Maeve O’Rourke, Advisory Committee Member of  Justice for Magdalenes (JFM). Maeve’s seminar formed part of the LLM in International Human Rights Law clinical module.

 

Maeve spoke in detail of the role played by UN human rights bodies, in particular, the UN Committee Against Torture, in raising the question of the state’s liability for continuing violations of the rights of Magdalene survivors. Specifically, the UN Committee Against Torture called on the State to:

 

institute prompt, independent and thorough investigations into all complaints of torture and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.

A key issue that has emerged from the submissions made by JFM and the testimony gathered from Magdalene survivors is that of the State’s responsibility for the failure to prevent, investigate and prosecute those responsible for forced labour, servitude and slavery.

The prohibitions of Article 4 ECHR are clearly relevant here, and the jurisprudence of the European Court of Human Rights since Siliadin v France has relied on the indicators of forced labour identified by the ILO, and have drawn upon the 1930 ILO Forced Labour Convention. More recent cases, including CN v UK and CN and V v France, have explored in some detail the definition of servitude in particular and the State’s positive obligations arising under Article 4.

In C.N and V v France, it was particularly the absence of choice and the isolation experienced that was critical to the Court’s finding that, in C.N.’s  case, a breach of Article 4’s prohibition of servitude had occurred. The Court also found that C.N. had been subjected to forced or compulsory labour, given the amount of work that she had been required to carry out, under threat ‘or menace’ of reporting to immigration authorities.

Dr Cliodhna Murphy, former Post-Doc fellow with the Irish Research Council funded Migrant Domestic Workers project at UCC, has pointed out that  Ireland is still without an effective statutory framework prohibiting forced labour. It is now  expected that the Employment Permits Act will be amended to correct this following the High Court judgment in Hussein v the Labour Court.

Today, we will hear what the State’s response is to the documented human rights abuses endured by the Magdalene survivors. A failure to adequately respond at this point, will mark a continuing violation of the rights of the Magdalene survivors. On this, the recently adopted General Comment no.3 on Article 14 of the UN Convention Against Torture, provides an authoritative interpretation of the right to redress that will be relevant to those watching and assessing the Government’s response.

Mali, Legitimacy and Self-Determination by Seán Butler*

Operation Serval, the military intervention by France in Mali that began almost three weeks ago, appears to be close to an end after President Francois Hollande indicated this week that control of the military action would soon be given over to the ECOWAS-organised African-led International Support Mission to Mali (AFISMA). Uniquely for a military intervention, the operation has been met with no international protest and no challenge of its legality from any State.

This is not to say that the situation is legally cut and dry. A series of posts by Dr. Theodore Christakis and Dr.Karine Bannelier on EJIL Talk! (see here and here) offer the clearest analysis of the legal issues, namely that France’s three legal justifications are all problematic. Firstly, its claim of authorisation under Article 51 of the UN Charter (concerning the right of individual or collective self-defense) ignores the fact that this provision is intended for state on state violence, not actions by non-state terrorist organisations (only one of the three Islamist groups involved in the conflict – Al-Qaeda in the Islamic Maghreb – can even be considered an ‘external actor’). Secondly, its invocation of UN Security Council Resolution 2085 forgets that this only authorises the deployment of AFISMA, which was originally not expected to be ready until September or October. But it is the third justification, that of consent by the host government, that offers the most interesting questions.

There are two issues with the consent of the Malian government in this case. The first is that this is a government that seized power in a coup last March, and has consequently not been recognised by large swathes of the international community, who have furthermore been accused of participation in extrajudicial executions, torture and disappearances. The second issue is that, prior to French involvement, this ‘government’ was in control of only approximately one-third of the country’s territory, with the Islamist groups and breakaway groups such as the National Movement for the Liberation of Azawad controlling the remainder. In essence, therefore, it is questionable whether the administration that requested the intervention can be considered the de jure or even the de facto government.

The situation in Mali can therefore be seen as essentially a civil war, in which France (and by extension the international community) have chosen a side rather than remain neutral. Such a stance is inconsistent with the principle of self-determination of peoples, as outlined in Article 1(2) of the UN Charter (Article 2(7) is also relevant if acceptance of UNSC Resolution 2085 as justification for the intervention can be construed as UN involvement in the affair) as well as Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.Interpretation in this regard also exposes an ambiguity in the current formulation of international law that has affected a number of recent situations: what constitutes a “legitimate” government.

Traditionally, the principle of sovereignty has meant the UN was indifferent to the processes by which governments changed. Regardless if a change in power occurred democratically or through a violent revolt, the UN treated states effectively as ‘black boxes’. Recognition by others decided in what manner the world was divided into states, and within that, control of territory was considered the primary criterion by which legitimacy could be measured. There was some politics involved in recognition (as seen by the 22-year gap between the Communist Party of China seizing power and being recognised in the UN as the legitimate representative of the Chinese people), but at the very least, the UN prided itself in taking a neutral stance in domestic power struggles. The organisation’s greatest failures of inaction, such as Rwanda and Srebrenica, were the result of this policy.

These failures, and the general context of the Cold War’s conclusion, led to more biased policies being used. In 1994, the UN authorised an intervention in Haiti to restore President Jean-Betrand Aristide’s government after he was ousted in a coup. In December 2010, the UN went a step forward when the organisation refused to recognise election results released by Cote d’Ivoire’s own Constitutional Council that announced that incumbent President Laurent Gbagbo had retained power. Instead, the UN recognised his opponent AlassaneOuattara as the winner, and the already-present peacekeeping force in the country, the UN Operation in Cote d’Ivoire, acted to help to insure this result. They protected Ouattara in the Golf Hotel in Abidjan when he was under siege by pro-Gbagbo forces, placed economic sanctions on Gbagbo and members of his regime, allegedly exclusively targeted pro-Gbagbo forces, and participated in the siege of the Presidential Palace that resulted in Gbagbo’s ousting.

Libya was a step further. Western powers discussed the Gaddafi regime’s legitimacy at length in Security Council meetings discussing the situation (see comments by the US representative here, the UK & German representatives here, and the US & Germany again here), while Resolution 1973, which authorised NATO’s no-fly zone, made a major contribution to swinging the war in the rebels’ favour. The criterion for loss of legitimacy here was the Responsibility to Protect doctrine, which in its simplest formulation declares that a state’s right to sovereignty is contingent on protecting its citizens from mass atrocities, with the international community having a secondary responsibility should the state fail to uphold this duty. Both during and after the conflict, major qualms were raised by non-Western members of the Security Council (most often by Russia and South Africa) about the fact that the UN was not permitted to either engage in or authorise regime change in these situations. This debate spilled over into the crisis in Syria, with the precedent of Libya being one of the primary reasons given by Russia and China for vetoing action in the situation. Strict interpretations of the Charter and the relevant Resolutions affirm this viewpoint.

The core of this contention is that while the international community has a duty to prevent atrocity crimes, the only group legally and technically competent to decide upon the legitimacy of a government are the citizens of that country. Of course, it is not easy to separate the commission of atrocities with the maintenance of power. The problem here is the lack of clarity about what “self-determination” entails – for example, is the ‘self-determined’ Malian government that one that would result from whomever won the conflict if no external interference occurred, or the one that would be elected democratically in a peaceful environment? Consequently, should the role of the international community be a strict policy of non-involvement, or interference so as to bring about a democratic outcome (and in the latter case, which side should it support)? The fallacy here may be that a policy of inaction is not a policy of neutrality – it is one that recognises that probabilistically the more powerful side will win. It is for this reason that state practice has begun to lean to the latter understanding of self-determination (due largely to the influence of pro-intervention Western powers), but we are far from consensus on the issue.

France’s involvement in Mali is likely to lead to the current government becoming the de facto authority over much of its territory, and consequently achieve recognition as the de jure and legitimate government, at least until an expected transition into democratic governance. By greenlighting the intervention, the UN has endorsed this result. In doing so, they have chosen to support what they perceive as the lesser of two evils for Mali and the region. As the UN grows in influence and each state’s ‘self-determined’ path becomes more connected with and dependent on the norms of the rest of the world, the decision of upon whom to confer legitimacy grows increasingly important, and thus the need for criteria and protocols grow more pressing. The ‘lesser of two evils’ may not be good enough anymore.
*Introducing Seán Butler:

Seán is a PhD candidate at the Faculty of Law, researching the ‘Responsibility to Protect’ doctrine in international law and evolving conceptions of sovereignty. He is a graduate of NUIG, and of the MBS Diplomacy and International Public Policy programme at UCC. He is working under the supervision of Prof Siobhán Mullally.

Invitation to the 7th Annual Distinguished Lecture of the Centre for Criminal Justice and Human Rights, UCC

                                                                                                                  

Invitation to

The 7th Annual Distinguished lecture of the centre for Criminal Justice and Human Rights, UCC 

to be delivered by

Philippe Sands QC

Professor of Law, Member of Matrix Chambers and Director of the Centre for International Courts and Tribunals at University College London

 “The Origin of International Crime:

 A Personal History”

Chair: Joe Noonan, Solicitor, Noonan Linehan Carroll Coffey Solicitors

Wednesday February 13th, 2013

in the Aula Maxima, UCC

6.00 to 7.30 pm

Admission Free: Advance booking is not necessary

All Welcome

For queries, telephone: 021 – 490 3414 or email m.walsh@ucc.ie

1.5 Hours General CPD

Certificate of Attendance will be issued

 

 

Biography

 

Philippe Sands QC is Professor of Law and Director of the Centre for International Courts and Tribunals at University College London. He is a member of Matrix Chambers. As a practicing barrister, Professor Sands has extensive experience litigating cases before the English courts and the International Court of Justice, the International Tribunal for the Law of the Sea, the International Center for the Settlement of Investment Disputes, and the European Court of Justice. He frequently advises governments, international organisations, NGOs and the private sector on aspects of international law.

 

Professor Sands many publications include: Torture Team: Cruelty, Deception and the Compromise of Law (Penguin, May 2008); Lawless World: America and the Making and Breaking of Global Rules (Penguin, 2005); From Nuremberg to The Hague: The Future of International Criminal Justice, Cambridge University Press, 2003 (editor). He also contributes regularly to the New York Review of Books, Vanity Fair and The Guardian.

 

Professor Sands co-directs the Project on International Courts and Tribunals (PICT) at London University and New York University. He has served as Specialist Adviser to the House of Lords Select Committee on Science and Technology. In 2011 he was appointed by the UK government as a member of the Commission on a Bill of Rights.

 

Please note that parking is very limited on UCC campus

 

 

Applying for Irish Citizenship and the Mallak judgment by Alan Desmond

This post first appeared on website of the EUDO Observatory on Citizenship

In a report on citizenship acquisition in Ireland issued in 2011, the Immigrant Council of Ireland highlighted a number of issues which make the process of applying for Irish citizenship unduly difficult for migrants. One of these issues, the Minister for Justice’s freedom to refuse applications for naturalisation without an accompanying explanation, has been dealt a death blow by a Supreme Court decision delivered on Thursday, 6 December.

 

In Mallak v. The Minister for Justice, Equality and Law Reform the applicant was a Syrian national who, along with his wife, successfully applied for asylum after arrival in Ireland in 2002.

Mr. Mallak and his wife subsequently applied for Irish citizenship. While his wife’s application was approved, Mr. Mallak was informed that the Minister had decided not to grant him a certificate of naturalisation and that

In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time.

Mr. Mallak was granted leave to apply for judicial review of the Minister’s decision on the grounds that he did not know the reasons for denying him a certificate of naturalisation and that the failure to provide such reasons hindered any future applications he might make for naturalisation.

The Legislation

The Irish Nationality and Citizenship Act 1956 has been amended numerous times. It provides that the conditions for naturalisation include a requirement of good character and a minimum of five years residence in the State during the 9 years prior to application for naturalisation. The Act provides that if the Minister is satisfied that the conditions for naturalisation have been met, he may “in his absolute discretion” grant a certificate of naturalisation.

The High Court Judgment

John Cooke in the High Court found that the Minister was not obliged to furnish reasons for his decision refusing Mr. Mallak an award of Irish citizenship. This was because, firstly, the legislation provided that it was within the Minster’s “absolute discretion” to grant or refuse a certificate of naturalisation and, secondly, the Minister’s decision left the applicant in no worse a position than he had been before the decision was made.

In a separate High Court case in 2010, Abuissa v Minister for Justice, Equality and Law Reform, Maureen Clark had also held that the Minister’s discretion in considering applications for naturalisation was absolute and that there was no obligation on him to provide reasons in the event of a refusal.

The Supreme Court Judgment

Following an appeal against the High Court finding, Nial Fennelly delivered judgment for the five-judge Supreme Court last Thursday. On the basis of a wide array of sources such as Irish legislation, Article 296 TFEU, Article 41 of the Charter of Fundamental Rights and the case-law of the Irish and UK courts, he held that there was an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which such decisions are based and that “at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons.”

The Supreme Court found, firstly, that the Minister’s failure to provide reasons for refusing Mr. Mallak’s application for naturalisation prevented Mr. Mallak from challenging the decision on substantive grounds and from making an effective second application, as he would not be in a position to address whatever concerns the Minister may have about him. Secondly, the failure to provide reasons also prevents the courts from effectively exercising their power of judicial review.

Noting that the underlying objective of the attainment of fairness requires decision makers to give reasons for their decisions, Nial Fennelly granted an order of certiorari quashing the Minister’s decision. The Minister will now have to consider Mr. Mallak’s application afresh and, in the event of refusal, provide reasons or justify his refusal to provide reasons.

Refugees and Citizenship

The applicant in his appeal drew attention to the fact that Article 34 of the Geneva Convention provides that Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. The importance attached to the naturalisation of refugees is similarly underscored by the fact that the Irish Nationality and Citizenship Act 1956 provides that in certain cases, including the case of refugees, the Minister may award citizenship even if the statutory conditions for naturalisation have not been met.

A Question of EU Law?

The applicant had also contended that the provisions of the Irish Nationality and Citizenship Act 1956 allowed the Minister to prevent access to EU citizenship without stating any reasons, thereby infringing Article 41(2)(c) of the Charter of Fundamental Rights which codifies the right to good administration and the administrative obligation to provide reasons for decisions made.

The right to award citizenship is, of course, within the competence of each Member State. It is clear, however, from the Rottmann case that the loss of EU citizenship, by virtue of its nature and consequences, brings the denaturalisation decision of a Member State within the scope of EU law. Less clear is whether the application of EU law might be triggered by a refusal on the part of a Member State to award citizenship to a non-EU national.

John Cooke in the High Court had dismissed the Rottmann-based argument that as the Minister’s decision to grant or refuse Irish citizenship also determines the applicant’s access to EU citizenship, the Minister is required to comply with general principles of EU law when exercising his discretion.

 

The Supreme Court noted that the Charter would only apply if the State, in deciding on Mr. Mallak’s application, was “implementing Union law”. In light of the order quashing the Minister’s decision, it held that it did not need to decide whether or not in this situation the State was engaged in implementation of EU law.

Thus the question as to whether refusal of an application for naturalisation might constitute implementation of EU law, thereby triggering application of EU law princples, remains to be answered.

Conclusion

The Supreme Court judgment in Mallak represents a victory for all current and prospective applicants for Irish citizenship. It will have repercussions for administrative decisions beyond the field of citizenship and immigration but serves to highlight, in particular, the lack of transparency which blights much of the Irish immigration system. It is of course by no means certain that Mr. Mallak will now be granted a certificate of naturalisation, but if again refused he will be in a position to challenge the refusal on substantive grounds or make a more effective renewed application for naturalisation.

Related Links:

Immigrant Council of Ireland Press Release Welcoming Supreme Court Decision

Irish Times article on the Supreme Court judgment

Statistics on the number of Naturalisations Granted by each EU Member State in 2010

Alan is a PhD candidate in UCC and an IRCHSS Government of Ireland Scholar.

Submission to the Oireachtas Committee on Health and Children on the Implementation of the A, B and C judgment v Ireland by Professor Siobhán Mullally

Submission to the Oireachtas Committee on Health and Children, on the implementation of the A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, European Court of Human Rights.

I welcome this opportunity to make a submission to the Joint Committee on Health and Children on Ireland’s response to the A,B, and C v Ireland judgement of the European Court of Human Rights. (Application no. 25579/05) Judgment 16 December 2010

 

In its judgment delivered 16th December 2010 in the case of A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, the Grand Chamber of the European Court of Human Rights found that there had been a violation of the State’s obligations under Article 8 in respect of the third applicant C:

“the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.” (para.267)

It now falls to the Government to implement the Court’s judgment, under the supervision of the Committee of Ministers of the Council of Europe, according to Article 46 of the European Convention of Human Rights.

 

A legislative framework

A key question facing the Government is what form the implementation of the judgment at a domestic level will take and whether legislation is required to give effect to the State’s obligations under Article 8 ECHR.

 

As noted in the extract cited above (para.267), the Court identified the ‘absence of any implementing legislative or regulatory regime’ (emphasis added) as central to its finding of a violation of Article 8 in respect of the third applicant. This comment suggests that either a legislative or regulatory regime could satisfy the State’s positive obligations under Article 8. It should be noted, however, that at several points throughout the judgment, the Court pointed to the specific difficulties that arise because of the absence of a legislative framework to give effect to Article 40.3.3° of the Constitution.  See, for example:

 

The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation (at para 264).(emphasis added)

 

At para 266 of its judgment, the Court noted that while it would not indicate the most appropriate means for the State to comply with its positive obligations (citing Marckx v. Belgium judgment, § 58; Airey v. Ireland judgment, § 26; and B. v. France, § 63), legislation had been adopted in many Contracting States. Such legislation had served to:

…specify the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures (Tysiąc v. Poland judgment, § 123).

 

On his 2011 visit to Ireland, the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg, reiterated his previous recommendation to clarify the scope of legal abortions through a coherent legal framework including adequate services in line with domestic jurisprudence and the European Court of Human Rights case law, without further delay.[1]

 

The absence of a legislative framework to give effect to Article 40.3.3° has been the subject of criticism by the Irish courts and in domestic policy documents.   In Attorney General v. X and Others [1992] 1 IR 1, Mr Justice McCarthy, in an oft-cited judgment, reflected on the lack of legislation implementing Article 40.3.3°:

I think it reasonable, […], to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.

[…] the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? […] The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction… (paras.146-147) (emphasis added)

In the Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593, Mr Justice Finlay C.J. found it:

…unfortunate that the [Parliament] has not enacted any legislation at all in respect of this constitutionally guaranteed right.

The European Court of Human Rights also pointed out that several policy and political documents had recognised the need for greater clarity in the legal framework regulating abortion in Ireland. In 1996, the Report of the Constitution Review Group recommended the adoption of legislation to regulate the application of Article 40.3.3. Such legislation, it was noted, should include a certification process by medical specialists and a time-limit for any certified termination in the case of an abortion considered lawful under Article 40.3.3°

 

The 1999 Green Paper on Abortion,  in discussing the possible options available for abortion reform, noted the potential advantages of legislation in this area. It would:

 

Provide a “framework within which the need for an abortion could be assessed, rather than resolving the question on a case-by-case basis before the courts, with all the attendant publicity and debate”;

Allow “pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in Ireland rather than travelling out of the jurisdiction”; and

Provide legal protection for medical and other personnel involved in a procedure to terminate the pregnancy in Ireland.

Against the background of ‘substantial uncertainty,’ the European Court of Human Rights concluded that the criminal provisions of the 1861 Act constitute,

‘a significant chilling factor for both women and doctors in the medical consultation process’ (para. 254).

In addition to the risk of criminal sanction, doctors also risked professional disciplinary proceedings. As the Court also noted, the Review Group Report 1996, the Green Paper 1999 and the Fifth Progress Report on Abortion 2000, each expressed concerns about the lack of legal protection for medical personnel in Ireland in the context of decision-making on the lawfulness of a termination of pregnancy.

The Expert Group on the Implementation of the A,B and C v Ireland judgment notes the greater clarity that would come with legislation, and regulations, to give effect to both the X and A, B and C judgments.

 

 

 

Procedural Safeguards: Decision making processes

In its Judgment of December 16th 2010 in A,B and C v Ireland, the European Court of Human Rights rejected the argument that:

‘[…] the normal process of medical consultation could be considered an effective means of determining whether an abortion may be lawfully performed in Ireland on the ground of a risk to life.’ (para. 255)

As was noted by the Court, there is no framework whereby any difference of opinion can be examined and resolved, and which would establish:

‘as a matter of law whether a particular case presented a qualifying risk to a woman’s life such that a lawful abortion might be performed.’ (para 253)

In the recent case of P and S v Poland, (Application no. 57375/08), the European Court of Human Rights recognised the significance of timely decision-making:

The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. (para 111)

The possibility of determining the lawfulness of an abortion to be carried out in Ireland through recourse to the courts, was also dismissed by the European Court of Human Rights, echoing the views expressed by the Irish High Court in, A and B v. Eastern Health Board, Judge Mary Fahy and C, and the Attorney General (notice party), [1998] 1 IR 464 (“the C case”):

[…] I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. […] it would be wrong to turn the High Court into some kind of licensing authority for abortions.

The UN Committee Against Torture has recommended that Ireland

“clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.” Committee against Torture, concluding observations on Ireland, UN Doc AT/C/IRL/CO/1. (2011), para. 26.UN CAT

At a seminar on the A,B, and C judgment, hosted by the Centre for Criminal Justice and Human Rights, University College Cork, Mr Juris Rudevskis, (lawyer at the Registrar of the European Court of Human Rights) noted that it was not clear under the current legal framework, how the Irish courts would enforce a mandatory order requiring doctors to carry out an abortion.[2]  He concluded that the legal framework should not be shaped in a way that would ‘limit real possibilities to have access to abortion.’ It should, he said, ensure clarity of the pregnant woman’s legal position.

 

Mr Rudevskis, drawing on the case law of the European Court of Human Rights, concluded that the procedural safeguards required for situations where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, should be the following: [3]

[…] first, they should take place before an independent body competent to review the reasons for the measures and the relevant evidence and to issue written grounds for its decision;

second, the pregnant woman should be heard in person and have her views considered;

third, the decisions should be timely, and;

fourth, the whole decision-making procedure should be fair and afford due respect to the various interests safeguarded by it.

 

 

Risks to life and health arising from mental health problems / illness, including suicide ideation

The right to the highest attainable standard of health, protected by the International Covenant on Economic Social and Cultural Rights includes both physical and mental health. The European Court of Human Rights has also recognised that mental health and the ‘preservation of mental stability’ is an ‘indispensable precondition’ to the enjoyment of the right to private life, protected by Article 8 ECHR. Bensaid v. the United Kingdom (Application no. 44599/98).

 

Access to a safe and legal abortion in cases of a non-viable foetus

 

In the case of KL v Peru, the UN Human Rights Committee found that the denial of a therapeutic abortion to a 17 year old girl who was pregnant with an anencephalic foetus was a denial of her rights under Articles 2, 7, 17 and 24 of the International Covenant on Civil and Political Rights. Notably the Human Rights Committee’s finding of an Article 7 violation (prohibition of torture, cruel and inhuman and degrading treatment or punishment) did not depend on the lawfulness of the procedure. The Committee recognised therefore that both legal and practical obstacles to a therapeutic abortion could violate the State’s obligations under the ICCPR.

The right of access to a safe and legal abortion in cases where the foetus is non viable was implicitly acknowledged by the Irish Government as protected under Irish constitutional law in the admissibility hearing before the European Court of Human Rights in D v Ireland (Application no. 26499/02) . Specifically the Government in challenging the failure to exhaust domestic remedies argued:

[…] although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. (para 69)

 

Permitting abortion in circumstances beyond a ‘real and substantial risk’ to the life of the mother

Ireland’s abortion law has attracted criticism from UN treaty bodies. In 2005, the UN Committee on the Elimination of All Forms of Discrimination against Women expressed its concern at the consequences of Ireland’s ‘very restrictive abortion laws’.

The UN Human Rights Committee has highlighted Ireland’s obligations under Article 7 of the International Covenant on Civil and Political Rights, pointing out that compelling a woman to continue with a pregnancy, particularly where that pregnancy is a result of rape, may be in violation of the prohibition on torture, cruel, inhuman and degrading treatment.   In its Concluding Observations on Ireland’s Third Periodic Report under the ICCPR, the UN Human Rights Committee (2008) reiterated its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State.

In Attorney General v. X and Others [1992] 1 IR 1, Mr Justice McCarthy asked:

Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others?

The UN Special Rapporteur on Health has stated that criminal laws and other legal restrictions on sexual and reproductive health may have a negative impact on the right to health in many ways, including by interfering with human dignity. Dignity, he says:[4]

[…] requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health.

 

The UN Special Rapporteur has noted that it is only in the ‘most severe cases’, that abortion is completely criminalized without exception — a situation that exists in only a handful of States — or allowed only to save the life of the woman. Ireland currently falls within this handful of ‘most severe cases’. He goes on to note that:

Approximately 25 per cent of the world’s population lives under legal regimes that prohibit all abortions except for those following rape or incest, as well as those necessary to save a woman’s life. Slightly less restrictive legal regimes permit abortion on a number of physical health, mental health and socio-economic grounds, such as poverty and number of children. Finally, abortion is unrestricted on any grounds in 56 States, though limits still exist with respect to how late in pregnancy.  (para. 23)

 

There is now a consensus on the right to access to a safe and legal abortion in specified circumstances in most Member States of the Council of Europe. All but five (including Ireland) of the Members permit abortion to protect both the life and the health of the pregnant woman. Most Member States also allow access to abortion for wider socio economic reasons or upon request within gestational time limits.

 

Conscientious Objection

While conscientious objection on the part of medical personnel can be accommodated within international human rights law, the State has an obligation to ensure that the life of a pregnant woman is not endangered as a result of a refusal to perform a life-saving medical procedure, including abortion. (See: Report of the UN Special Rapporteur on the Right to Health (2011)).

 

The European Court of Human Rights has stated that:

“States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation”; R.R. v. Poland, (Application no. 27617/04), May 26, 2011, para. 206.

 

Given the above, it is clear that steps to put in place a comprehensive, fair and accessible legal framework to effectively vindicate the right to a safe and legal abortion are urgently required. As was noted in another case involving this State: Airey v Ireland:

“the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (para. 24).

 

 

Professor Siobhán Mullally

Faculty of Law

Coordinator, Gender Law and Sexuality research initiative (GLAS)

Director, LLM in International Human Rights Law

University College Cork

Email: s.mullally@ucc.ie

 

 


[1] Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Ireland, CommDH(2011)27 / 15 September 2011, para.48

[2] J Rudevskis ‘Abortion and the Case Law of the European Court of Human Rights’, paper presented at the Centre for Criminal Justice and Human Rights, Nov 10th 2011.  (copy on file with the author).

[3] Ibid. p.9

[4] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,  UN Doc. A/66/254, August 3, 2011, para.15

Tánaiste to Launch Irish Yearbook of International Law Vols IV-V

On Friday November 9th, the Tánaiste and Minister for Foreign Affairs Éamon Gilmore will launch Volumes IV-V of the Irish Yearbook of International Law followed by a short lecture on “Current Issues in International Law and Irish Foreign Policy” in the Aula Maxima, University College Cork. The launch commences at 10.30am and all are welcome.

 

About the Irish Yearbook of International Law

The Irish Yearbook of International Law is intended to stimulate further research into Ireland’s practice in international affairs and foreign policy, filling a gap in existing legal scholarship and assisting in the dissemination of Irish thinking and practice on matters of international law. On an annual basis, the Yearbook presents peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international fora and the European Union, and the practice of joint North-South implementation bodies in Ireland. In addition, the Yearbook reproduces documents that reflect Irish practice on contemporary issues of international law.

Publication of the Irish Yearbook of International Law makes Irish practice and opinio juris more readily available to Governments, academics and international bodies when determining the content of international law. In providing a forum for the documentation and analysis of North-South relations the Yearbook also make an important contribution to post-conflict and transitional justice studies internationally.

As a matter of editorial policy, the Yearbook seeks to promote a multilateral approach to international affairs, reflecting and reinforcing Ireland’s long-standing commitment to multilateralism as a core element of foreign policy.

Further details of the IYIL can be seen at: www.hartjournals.co.uk/iyil.

About the Editors

Fiona de Londras is a Professor of Law, Durham University; Siobhán Mullally is a Professor of Law, University College Cork

Migration, Domestic Workers and Human Rights: gender equality and the limits of rights

On October 19th, 2012, an international conference on migrant domestic workers was hosted by the Centre for Criminal Justice and Human Rights and the Irish Human Rights Commission. The conference  marked European Anti-Trafficking day. Recent years have witnessed significant developments in international human rights standards relating to migrant domestic workers, including the adoption of the landmark 2011 ILO Convention on Decent Work for Domestic Workers, the CEDAW General Recommendation on Women Migrant Workers and a General Comment by the UN Committee on Migrant Workers. The conference  examined the continuing tensions between immigration laws and policies, limited access to employment rights protections and evolving human rights standards on the rights of migrant domestic workers.

 

The conference was part of an Irish Research Council for the Humanities and Social Sciences senior fellowship project, led by Professor Siobhán Mullally, examining human rights norms relating to migrant domestic workers and EU migration law regimes. Click here for further details on the project.

 

Speakers included:

  • Maria Grazia Giammarinaro, OSCE Special Representative on Combating Human Trafficking
  • Dr Bridget Anderson, COMPAS, Oxford University
  • Prof. Janie Chuang, American University, Washington D.C. and Open Society Fellow
  • Prof Siobhán Mullally and Dr Cliodhna Murphy, University College Cork
  • Minister for Equality, Disability and Mental Health, Kathleen Lynch T.D. (invited)
  • Morten Kjaenum, Director, EU Fundamental Rights Agency (invited)
  • Migrant Rights Centre of Ireland, Siobhán O’Donoghue

Read an account of the Conference from the Organization for Security and Co-operation in Europe here:

http://www.osce.org/cthb/96602

Migrant Workers and Access to Employment Rights: The Case of Migrant Domestic Workers in Diplomatic Households by Dr Clíodhna Murphy

Hogan J’s decision of last week in Hussein v The Labour Court [2012] IEHC 364 (31 August 2012) http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/3f2a0cfdd0d10ccd80257a6b004e2e1b?OpenDocument turned the spotlight on limitations to access to employment rights and entitlements for irregular migrants. The judgment, which has been the subject of analysis by Liam Thornton http://www.humanrights.ie/index.php/2012/08/31/irregular-migrant-workers-and-employment-rights-in-ireland/ and Darius Whelan http://irishlawblog.blogspot.ie/2012/09/migrant-worker-case-in-high-court.html, holds that undocumented workers are barred from enforcing employment rights as they do not have a valid contract of employment  – their contract of employment being ‘substantively illegal in the absence of the appropriate employment permit’. In this context, it seems timely to draw attention to another specific group of migrant workers whose access to employment rights is effectively blocked by operation of law – migrant domestic workers employed in diplomatic households.

Previous guest blogs on Human Rights in Ireland (posted by me http://www.humanrights.ie/index.php/2012/04/02/murphy-on-migrant-domestic-workers-in-immigration-law/ as well as by Catherine Kenny http://www.humanrights.ie/index.php/2012/01/27/guest-post-on-migrant-domestic-workers-and-migration-law-in-the-eu/) have highlighted the vulnerability of migrant domestic workers generally. This vulnerability is associated with the isolated nature of the work they perform in the private home, gendered conceptions of productive and reproductive work and the often precarious migration status of such workers. Among migrant domestic workers, diplomatic domestic workers are perhaps the most vulnerable to abuse and exploitation, with this attributable to two factors: (1) their dependence on the employer for employment and migration status, and (2) the law of diplomatic immunity.

Dependence on diplomatic employer for employment and migration status

As a general rule, the special immigration status of domestic workers is dependent on the continuation of the employment relationship and their employer’s stay in the host country and therefore does not allow them to switch their employer, meaning that once the employment relationship has ended the domestic worker loses her/his right to
stay and work in the host state’s territory. In Ireland, no regulated system exists for the entry of diplomatic migrant domestic workers and the Migrant Rights Centre of Ireland has noted http://www.dfa.ie/uploads/documents/Political%20Division/Forum%202010/written%20contribution%20migrant%20rights%20centre%20ireland%202010.pdf that there are no clear guidelines on how the visa system operates in respect of domestic workers employed by diplomats.

Diplomatic immunity

The second element that increases the precarious position of the migrant domestic worker is the immunity which may be afforded to the employer by the 1961 Vienna Convention on Diplomatic Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf (as incorporated into Irish law by the Diplomatic Relations and Immunities Act 1967 http://www.irishstatutebook.ie/1967/en/act/pub/0008/sched1.html#sched1). Article 31 is the key provision of the 1961 Convention in this respect. It provides that diplomatic agents shall enjoy immunity from the criminal jurisdiction of the receiving State. He or she also enjoys immunity from its civil and administrative jurisdiction, subject to certain limited exceptions, including that in Article 31(1)(c) relating to “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”.

It seems that this exception contained in Article 31(1)(c) does not include ordinary contracts incidental to life in the receiving state, such as a contract for domestic services. In Tabion v Mufti http://openjurist.org/73/f3d/535/tabion-v-mufti, the US Court of Appeals, 4th Circuit, concluded:

Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.

The relationship between a diplomat and their ‘private servant’ (to use the terminology of the 1961 Convention) is thus not generally interpreted as involving any element of a “professional or commercial activity” and thus is not exempt from the scope of immunity. This interpretative approach reflects the classic difficulty encountered by domestic workers seeking to enforce their rights: the lack of recognition of the economic value of their work and the consequent confinement of the employment relationship to the seemingly impregnable ‘private sphere’. The inviolability of the private sphere of the diplomat is reinforced by the provisions of Articles 29 and 30, which render the diplomat’s person, private residence, papers and correspondence and property inviolable. The privileges and immunities enjoyed by diplomats under the 1961 Convention are also extended to a diplomat’s spouse and minor children (Article 36).

It appears from US and UK case law that a domestic worker’s best chance of bringing a claim for legal redress is when the diplomat is no longer in post.  The level of immunity granted under Article 39 of the 1961 Convention to a diplomat whose term has expired is more limited than that granted to a diplomat still in post.  Courts in the UK (Wokuri v Kassam http://www.employmentcasesupdate.co.uk/site.aspx?i=ed11426) and the US (Baoanan v Baja and Swarna v Al Awadi) have held that former diplomats may not have residual immunity in respect of their conduct in the employment of a domestic worker. The analysis will depend on the circumstances of the employment, in determining whether the employment relationship falls outside of the sphere of protected activity covering the ‘official functions’ of the diplomat. The UK High Court in Wokuri distinguished Tabion as it concerned the scope of immunity to be afforded a sitting diplomat and the proper interpretation to be given to the exception for ‘commercial activity’.  The residual immunity to be afforded a former diplomat, the Court noted, was less.

While the specific issues outlined above have not yet come before the Irish courts, there are numerous examples http://www.irishtimes.com/newspaper/ireland/2011/1121/1224307907495.html of cases in which diplomats have claimed immunity in respect of legal action taken to protect the rights of their domestic workers. In 2009, the Rights Commissioner Service declared that it had no jurisdiction to hear a worker’s complaint of employment law violations (including failure to pay the minimum wage) when the then South African ambassador Priscilla Jana invoked immunity. The case was settled before it reached the appeal stage in the Labour Court. In 2010, the embassy of the Philippines in Ireland boycotted a rights hearing at the Labour Relations Commission in which a domestic worker who was employed by the embassy alleged that her employment rights had been violated and that she had not been paid the minimum wage.

In the circumstances where the employer cannot be sanctioned due to their immunity, diplomatic domestic workers’ right of access to justice is rendered impotent and make it impossible for such workers to enjoy their right to protection against unfair dismissal and rights relating to employment conditions and remuneration. The intersection of the legal regulation of the immigration and the diplomatic systems thus moulds diplomatic domestic workers into a position of subordination and susceptibility to exploitation which is anathema to rights protection.