This is the third part in a series focused on Ireland, the United Nations and abortion, explaining why the pro-choice argument that international law requires Ireland to introduce abortion is based on an incorrect interpretation of that international law. In previous posts, we have discussed the work of the Human Rights Committee (HRC) and the role of customary international law.
International law, especially the UN’s view of it, is proving to be a sticking point in the Irish abortion debate. One of the Coalition to Repeal the Eight Amendment’s ‘Eight Reasons to Repeal the Eighth’ is simply ‘It violates international human rights standards on women’s rights’. Explaining that the international legal landscape is not as cut and dried as the Coalition’s snazzy eight-part grid would have us believe is therefore a key part of Irish pro-life dialogue.
Let’s start off with this very basic point: no UN human rights treaty, at the time of writing, mentions abortion or a right to an abortion.
Great. International law is pro-life. Let’s tell everyone that and move on. They’ll definitely all believe us and accept that we’re right.
Not that easy, unfortunately. What the pro-choice side argues is that, regardless of whether UN treaties do or do not expressly mention abortion (to repeat, they don’t), the articles contained therein can be interpreted to create a right to an abortion. So, really, this comes down to whether the interpretations that have emerged from the various UN treaty bodies are correct.(1) And they’re not. They’re wrong. Here’s why.
We’ve talked about the Human Rights Committee (HRC) before. The role of the HRC is to monitor the implementation of the International Covenant on Civil and Political Rights (ICCPR). To date, the HRC has given opinions (NOT judgments; they can’t give judgments; they’re not judges) in two Irish abortion cases: Whelan v Ireland in June 2017 and Mellet v Ireland in June 2016. The cases dealt with women who were pregnant with babies diagnosed as having Trisomy 13 (Whelan) andTrisomy 18 (Mellet). Each woman opted to travel to England for abortions. Because this post is intended to be about treaty interpretation in general, we’re not going to examine the legal reasoning in these cases in huge detail. For now, it’s enough to note that the ICCPR articles that Ireland was found to have violated in both Whelan and Mellet were:
- Article 7: right to freedom from torture and cruel, inhuman or degrading treatment
- Article 17: right to freedom from arbitrary or unlawful interference with privacy, family and home
- Article 19: (here) freedom of access of information re abortion
- Article 26: non-discrimination.
The question to be asked here is whether it can be safely argued that Articles 7 and 17 ICCPR generate a right to abortion.(2)
First, however, in a matter not strictly related to treaties, let’s clear up a pro-choice misconception by pointing out that neither of these decisions do, or can, suggest that Ireland should allow abortion in all circumstances, or even broad ones. Both Whelan and Mellet apply only to the tragic situations in which a child is diagnosed with a life-limiting illness (see our previous post on the errors of the Abortion Rights Campaign in relation to this). The HRC opinions in Whelan and Mellet can have no relevance to circumstances that do not meet these criteria. Anja Seibert-Fohr, the HRC member from Germany, expresses this very clearly. In Whelan, she uses the very first line of her (partially-dissenting) opinion to state:
“The Committee’s Views are not about the prohibition of abortion in general but relate to the particular facts of this case. The holding and the recommendations therefore apply only to the case in which the foetus according to the uncontested submission by the author was not viable.”
In paragraph 9 of the main opinion, the HRC say that Ireland must take steps to prevent “similar violations”, so all they do is offer the opinion that abortion ought to be available to people with very sick babies. What they say, while still upsetting and frustrating for those who value pre-born life regardless of how long that life is going to be, really isn’t as far-reaching or radical as they are presented by either pro-lifers or pro-choicers. If people actually took the time to read the opinions, rather than the reports of the opinions, or merely tweets relaying people’s opinions about the reports of the opinions, they would realise this. It’s important to know the actual battle we are fighting at any one stage. That way we can choose the best and sharpest intellectual weapon at our disposal.
But back to treaties. Can Articles 7 and 17 ICCPR be interpreted as necessitating abortion? This is where we have to delve into theories of legal interpretation.
There are a number of different schools of interpretation. Teleological interpretation, sometimes called purposive interpretation, seeks to effectuate the purpose of a treaty. The word ‘teleological’ comes from the Greek τελος, meaning ‘end’ or ‘goal’. Teleology, then, is when the interpreter interprets the language of the text in order to reach a result in tune with the overall purpose of the text. By asserting that Articles 7 and 17 ICCPR can create a right to an abortion in any way, the HRC have engaged in teleological interpretation. Former law professor at Vanderbilt University Vijay M Padmanabhan has examined this in detail (emphases added).
“The HRC has also engaged in a teleological approach to treaty interpretation on the abortion question. It has interpreted Articles 7 and 17 of the ICCPR to require States to provide at least a medical exception to abortion laws … It has done so despite strong evidence that these provisions were not intended to cover abortion rights. There was an intense debate about abortion in the context of Article 6 … The absence of such a debate in the context of Articles 7 and 17, as well as the decision of States with total abortion bans to join those provisions without reservation, suggests strongly that these provisions were not intended to have abortion implications”.
Let’s repeat that: ARTICLES 7 AND 17 ICCPR WERE NEVER INTENDED TO CREATE A RIGHT TO ABORTION.
And again: ARTICLES 7 AND 17 ICCPR WERE NEVER INTENDED TO CREATE A RIGHT TO ABORTION.
Keep saying it. Tell it to everyone you know. Not enough people know it. The UN, the people in charge of interpreting the ICCPR, don’t know it. That’s pretty bad.
But, of course, as society changes, meanings and priorities change too. Even if, when the ICCPR was drafted in the 1960s, no one intended it to create a right to abortion, couldn’t it be argued that, in our enlightened age, it could mean that now? The problem with this is twofold. One, it’s submitted that even if we allow a certain amount of teleological interpretation to take place, it’s ludicrous to allow it to the extent that it means something it was never intended to mean in the first place. The International Court of Justice (an actual court) acknowledged this in the Interpretation of Peace Treaties Case by rejecting the principle of ‘maximum effectiveness’, which would have required the treaty to be interpreted so as to give it maximum effectiveness in achieving its object and purpose. Something else which deserves a mention is this, from Dixon (emphases added)(3):
“As a matter of principle … the ‘object and purpose’ is that desired by the parties (rather than the court), but this must be assessed by reference to the time the treaty was entered into and not when the alleged breach occurred.”
Um. Not abortion, then. Ireland ratified the ICCPR in 1989, well after the Irish voting public had voted, overwhelmingly, to give express constitutional protection to the pre-born via the Eighth Amendment. It doesn’t seem all that likely that we would have acceded to a treaty that would have countered Irish public opinion like that. This leads onto the second point. If the UN insist on interpreting the ICCPR in such a way as to contradict the purpose we thought we were signing up to, Ireland’s consent to the ICCPR is cast into considerable doubt. You can’t consent to something if you think you are consenting to something different. That’s Consent 101.
This is what good ol’ Brownlie has to say about teleological interpretation(4):
“The teleological approach has many pitfalls, not least its overt ‘legislative’ character.”
What the HRC are doing by announcing that Articles 7 and 17 ICCPR create a right to abortion is not interpreting law, it is creating law. They are usurping the role of the legislator. And that’s concerning, because UN officials aren’t elected. They’re not democratically accountable. In a lot of aspects, they’re not even good: they don’t pay their interns, so internships are reserved for those who can afford it, usually, though not always, people from rich Western backgrounds. They were responsible for introducing cholera to Haiti. UN personnel are immune from suit, so the huge number of victims who have experienced sexual assault at the hands of UN peacekeepers go uncompensated and unacknowledged. No country should be immune from international criticism, but when that criticism comes from a place of democratic illegitimacy, legal misinterpretation and a lack of awareness of moral ambiguity in a highly emotive and nuanced issue, it’s hard to take that criticism seriously. And different views exist. The UN doesn’t own international law. Scholars and academics disagree with its actions everyday. This doesn’t mean ignoring the fact that the UN can and does do good work. It means accepting that, behind the UN, there are people, and people get things wrong, and sometimes they get things wrong a lot. The important thing is that they acknowledge this, and start doing things right. It means acknowledging the wild, unprincipled interpretation of the ICCPR in relation to abortion.
For those interested in reading more about international law and abortion, Rita Joseph has written an entire book impressively arguing that international law can only be interpreted as protecting the preborn child and therefore necessitating the criminalisation of abortion (Rita Joseph, Human Rights and the Unborn Child (Martinus Nijhoff 2009). It is a provocative and radical rethink of mainstream international law thought on abortion, and is very deserving of more analysis and deeper academic engagement. We would also recommend C-Fam’s White Paper ‘Rights by Stealth: The Role of UN Human Rights Treaty Bodies in the Campaign for an International Right to Abortion’. If you are interested in more critiques of the UN, definitely watch Ami Horowitz’s documentary UN Me and read Dore Gold’s Tower of Babble: How the United Nations Has Fueled Global Chaos, which, although primarily of US interest and not entirely objective, are fascinating and offer rarely-heard but necessary perspectives on a topic dominated by a particular narrative. Also check out Stephen Hall’s article in the European Journal of International Law: ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) 269, especially 302.
(1) This post concentrates on the HRC, because that is the body which has dealt most publicly and regularly with Ireland on the issue of abortion, but readers should note that the UN Committee on the Elimination of Discrimination Against Women (CEDAW) has also tackled this subject in relation to Ireland (much of the same arguments used in this post against the HRC apply to CEDAW. We will possibly examine CEDAW separately later on). The UN Committee Against Torture, UN Committee on the Rights of the Child and the UN Committee on Economic, Social and Cultural Rights have also disapproved of Ireland’s prohibition on abortion. The UN loves abortion and dislikes Ireland’s position on abortion. That much is clear. What’s not so clear is whether they are correct in how they have interpreted international law.
(2) We don’t examine Articles 19 and 26 here. It’s very hard to justify an Article 26 violation after reading Anja Seibert-Fohr’s partially-dissenting opinions, and for that reason we have not included it for discussion here. As for access to information on abortion, it’s somewhat tangential to the broader question of abortion access, and discussion would be more suited to a separate post.
(3) Martin Dixon, Textbook on International Law (OUP 2013, 7th edn) 74.
(4) James Crawford, Brownlie’s Principles of Public International Law, (OUP 2012, 8th edn) 379.
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