The UN and Abortion (Part 1)

In the UT article written by some of our members, we claim, as the pro-life side, to have a position more consistent within a human rights perspective, yet the UN Human Rights Committee (HRC) has declared on more than one occasion that the Irish State’s prohibition on abortion violates the human rights of individual women who have travelled overseas to obtain abortions. Isn’t this inconsistent with our claim to have a consistent view on human rights?

Actually, no.

There are two reasons why. The first is to do with the UN Human Rights Committee specifically and the nature of international law. The second is a more general point on dogma, opinions and facts. Because there’s so much information to go into this post, we’ll be splitting it up into a few parts.

The HRC was established under Article 28 of the International Covenant on Civil and Political Rights (ICCPR). One of its two roles is to consider individual communications alleging violations of the rights set out in the ICCPR by States party to the First Optional Protocol to the Convention.* It is made up of 18 experts who are elected to the Committee on an individual basis. They are not elected as representatives of their countries, a point gleefully pointed out by pro-choice campaigner Colm O’Gorman on his Twitter feed, in reference to a letter in the Irish Times from pro-life activist Niamh Uí Bhriain in March 2017. Arguments that the poor human rights records of the states from which the Committee members come negate their points are most appropriately directed at the UN Human Rights Council, a far more political body. Granted, it is extremely irritating to be lectured on human rights by, for example, someone from Uganda (Duncan Muhumuza Laki), a nation currently trying to strip its own citizens of their land rights and with an horrific record as regards LGBT and women’s rights. Or Egypt (Ahmad Amin Fathalla), a nation which in 2017 was condemned by a group of UN experts for its clampdown on women’s rights. Or Mauritania (Bamariam Koita), where they still have actual slavery. But if they’re completely independent, we can let little things like that go, can’t we? Hmm. The celebrated human rights barrister Geoffrey Robertson QC is profoundly sceptical on the ‘independence’ of the UN Human Rights Committee, noting that:

‘Although the eighteen members of the HRC serve in theory in their personal capacities rather than as representatives of states, they are, like the members of the Human Rights Council, none the less nominated by governments which usually make sure that their nominees are “one of us” … Many are ambassadors, or lawyers serving in government departments, who carry their diplomatic baggage to Geneva and New York for a few weeks of HRC meetings each year, and currently the majority are academics. Few have any professional commitment to independence or impartiality—states seem reluctant to nominate real judges, or independent legal professionals’.**

His accusation is borne out by the current HRC membership list, which contains three ambassadors, ten academics and one person working for the (Paraguayan) government. The ‘independence’ label can’t be considered to be firmly attached in this regard.

Regardless of reality, though, we have to admit that the members of the Human Rights Committee don’t officially represent anyone other than themselves and their own views of the law. But actually, even setting aside qualms surrounding independence and hypocrisy, that’s a forceful point in itself in this debate: the HRC isn’t an international community or a collection of states. The United Nations have not condemned Ireland for its position on abortion. Rather, 18 people, nominated by various states, who meet three times a year for a few weeks at a time, have set out their views. These 18 people don’t always agree with each other. Dissenting and partially dissenting views are common: see Anja Seibert-Fohr’s (Germany) Annexes in the reports on Ireland’s abortion cases (which still find against Ireland, but are considerably more hesitant and, in the present author’s opinion, better-reasoned than the majority opinions).

Now, in theory, there’s nothing wrong with a small group of people making decisions. That’s the basis of the judicial system, after all. However, there are a number of other aspects to the HRC’s decision-making (or view-forming, as it is officially termed—not decisions, certainly not binding) process that are, to say the least, questionable. First off, the clue is in the name: it’s the Human Rights Committee, not the Human Rights Court. These people are not judges. That’s clear from the frankly unusual manner in which they form their views. Here’s a paragraph from the official UN page on how the HRC go about making their decisions:

The Committees consider each case in closed session. Although some Committees have provisions for oral components of proceedings in their rules of procedure … the practice has been to consider complaints only on the basis of the written information supplied by the complainant and the State party. Accordingly, it has not been the practice to receive oral submissions from the parties or audio or audio-visual evidence (such as audio and video files). Nor do the Committees go beyond the information provided by the parties to seek independent verification of the facts.

Not hugely democratic, is it? There’s an interesting dilemma at play here. The HRC wants to be respected as a court would be, yet does not act like a court. What about the open administration of justice? The HRC holds no hearings at all. And not to seek independent verification of the facts provided? No oral submissions? It’s all a bit … shady. (In the KL v Peru complaint, regularly described as enshrining a right to abortion under UN law, the Peruvian state did not make a single submission, so the view of the HRC was formed entirely on submissions made by the complainant.) Yet, despite these obvious flaws, somehow, people are still willing to declare the views of the HRC as the great determiner of what constitutes human rights. It’s hard to do that. This is how Robertson summarises the HRC:

‘starved of funds, with eighteen part-time members of variable quality and integrity and a handful of overworked staff, its “views” tend to be brief, poorly argued opinions on the facts … no one who has visited its offices in a nondescript UN building in Geneva could possibly think of it as an enforcer of any universal bill of rights’.****

The HRC has arrived at some well-reasoned views, but also some pretty dreadful ones: the string of Jamaican death row cases are good examples, as is the Libyan debacle. In 1995, Libya entered a short and dishonest report on its ICCPR progress, just after the dictator Mu’ammer Gaddafi had ordered the assassination of Libyan dissidents living abroad. The HRC issued its verdict three years later, complimenting Libya on its treatment of women and expressing only polite concern at the murder and torture of the regime’s opponents and at the complete lack of an independent legal system. In 2003, Libya was elected to chair the Human Rights Commission on the basis of its sterling human rights record, as had been confirmed by the HRC’s verdict. In a study on workplace psychopaths, Babiak and Hare wrote:

‘There are few organizations in the Western world that could survive with the allegations of mismanagement, scandal, and corruption that permeate the United Nations. For many delegates, officials, and employees, particularly those from developing nations, the UN is little more than an enormous watering hole.’

So not really a faultless view-forming body. But couldn’t it still be argued that the Human Rights Committee simply have it correct here? After all, even a broken clock is right twice a day. Whether or not the HRC experts are of poor quality, lacking independence and bordering on anti-democratic, they could still have landed upon a correct decision in the Irish abortion cases. Couldn’t they?

Actually, no.

We’ll deal with this in the next post.

*Its other role is to study reports submitted every five years by state parties and to make observations to those states about their performance in the field of human rights.

**Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (Penguin 2012) 72.

***HRC 1153/2003 (24 October 2005).

**** Robertson, 73.

The Statistics Fairy

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