Irish Government accepts abortion rights cannot be denied by majority votes – video and transcript

by Michael Nugent on August 1, 2014

This is the hugely significant exchange in Geneva in July, where the Irish Government formally accepted that the will of the Irish people as expressed in a referendum or parliamentary vote cannot be used to deny human rights, including on abortion.

The UN Human Rights Committee asked Ireland why it was in breach of the human right of pregnant women to an abortion in wider circumstances than allowed by Irish law.

The Irish State replied that Irish abortion law reflects the will of the Irish people, as allowed under Article 25 of the International Covenant on Civil and Political Rights.

The UN Human Rights Committee said that that was a completely unacceptable reason for denying human rights, and that the very core of human rights law is a safeguard against the tyranny of the majority.

After a break in the session, the Irish Justice Minister Frances FitzGerald formally withdrew the remark and accepted that “the majority will does not and can not derogate from human rights obligations.”

Article 25 of the ICCPR

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

Yuval Shany of the UN Human Rights Committee

I am however quite, well, very troubled, frankly, by the sweeping claim that has been made, that the free will of the Irish electorate may, by virtue of Article 25 of the Covenant, allow the Irish State to violate other provisions of the Covenant, including nonderogable provisions such as Articles 6 and 7 of the Covenant.

I find this argument to be completely unacceptable, I should say, and one that strikes at the very core of human rights law as a safeguard against the tyranny of the majority, and one that cuts against the very raison d’être of having an international regime of universal human rights protections.

And I call on the State Party to consider withdrawing that statement, on the ability of the Irish State to deviate from the Covenant at will, and to come up with some other explanations for why their laws and practices on abortion are compatible with the Covenant.

Yuji Iwasawa of the UN Human Rights Committee 

This morning I will ask some questions on issues 22 and 24.

But before I address issues 22 and 24, I would like to join my colleague Mr Shany in pointing out that human rights cannot be denied by a majority vote in the Parliament.

Arguments to justify a deviation from the protection of human rights under the Covenant by invoking article 25 of the Covenant cannot be accepted.

Cornelis Flinterman of the UN Human Rights Committee

I would like to raise some follow-up questions on the very important issue of abortion. Let me first of all state that I share very much the concern expressed by my colleagues Mr Shany and Mr Iwasawa, of the reference by the Delegation to Article 25.

There is no disagreement that a full and free discussion is crucial in any society, and that it is the cornerstone of any democratic and free society, as reflected also in our General Comment number 34 in which our former Irish member played such an important role, Michael Flaherty.

Yet the outcome of such a discussion, even if it is full and free and informed, the outcome of such a discussion in the form of a parliamentary majority decision can never be used as an argument to legitimise the violation of substantive rights under the Covenant.

As has been said, such an argument would indeed undermine the essence of the human rights framework both domestically and internationally.

Irish Justice Minister Frances FitzGerald 

On question 12, I would want to begin my comments in relation to this by referring to the comments of Mr Shany, Mr Iwasawa and Mr Flinterman. And I want to make it absolutely clear that the Government of Ireland recognises entirely the points made by the members of the Committee in relation to Article 25, that the majority will does not and can not derogate from human rights obligations, and I hope that’s a very clear statement of our position.

Yuval Shany of the UN Human Rights Committee 

I am very pleased to hear the Minister’s unambiguous statement on Article 25 of the Covenant, and I appreciate the Delegation’s immediate response to our concern in this regard.

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{ 4 comments… read them below or add one }

1 Ewan Duffy August 2, 2014 at 6:46 am

Weasel words from Frances Fitzgerald that mean nothing.

2 Nadia Williams August 3, 2014 at 10:16 am

I’m just curious, how is such a conundrum resolved? The way I understand it, the Irish constitution is in breach of human rights law, yet the constitution cannot be changed except through a referendum, so in the end, if the majority in Ireland chooses to be in breach of human rights, that’s that. What can be done to enforce compliance, or is there not really anything beyond making a single minster sweat at a hearing every four years?

3 Michael Nugent August 4, 2014 at 4:08 pm

Nadia,

The Human Rights Committee are not going to come to Ireland and physically force the Government to extend abortion rights, so the power of its recommendations in practice depends on us as Irish citizens putting pressure on the Government to adhere to its human rights obligations.

There were signs in geneva that the Committee is increasingly impatient with Ireland, as we have ignored so many things the Committee told us last time in 2008. The fact that the Government formally withdrew its argument shows that they are ultimately not willing to face down the UN when they are challenged to do so.

Unfortunately, back home in the Dail, Joan Burton was contradicting that position just two days later. So it is all part of a process, but I think we had some very significant breakthroughs in Geneva.

4 Nadia Williams August 4, 2014 at 4:20 pm

Thanks for the response, Michael, I understand the position now. There is still a long way to go, but I can see how the only road is to just keep at it, eventually change will come. Thanks for representing our views in Geneva, also in the media, you and Jane both do a great job.

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