Tanaiste defies UN on abortion law, using argument UN has called “completely unacceptable”

Tanaiste Joan Burton has defied the UN by saying that majority votes can be used to deny human rights, just two day after Justice Minister Frances Fitzgerald had withdrawn the same argument after the UN Human Rights Committee told Ireland that it was “completely unacceptable”.

Today’s Irish Independent reports that in the Dail, Joan Burton ruled out an abortion referendum being held in the lifetime of this Government, and gave as her reason that “as democrats everyone must accept the will of the people”.

But just this Tuesday, in Geneva, the UN Human Rights Committee had told Ireland that this was a “completely unacceptable” reason to deny Irish women their right to an abortion consistently with the International Covenant on Civil and Political Rights.

The UN Human Rights Committee told Ireland that human rights cannot be denied by a majority vote in Parliament or in a referendum, and that the whole point of international human rights law is to avoid the tyranny of the majority.

The UN told Ireland to withdraw that argument as a reason for denying Irish women abortions, and after a break in the session, Minister for Justice Frances Fitzgerald did withdraw it. She accepted that “the will of the people” was not a justified reason to derogate from giving people their human rights under the ICCPR.

Tanaiste Joan Burton should now clarify the situation by publicly withdrawing the argument she made in the Dail. She should recognise, as the Justice Minister did on Tuesday, that human rights cannot be denied by a majority vote in Parliament or in a referendum.

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21 Comments

  1. Sounds like she should copy the UN declaration of human rights 100 times on the blackboard.

  2. I’m afraid you’re flat wrong on this one, Michael. Joan is the only party leader that has argued for the repeal of the 8th Amendment. Labour is the only pro-choice party of any significance in Dáil Éireann.

    Achieving wider accesss to abortion in Ireland requires, as Joan has rightly said, the support of a majority in parliament and to change the constitution the support of a majority in the country. You are attacking Joan Burton for effectively stating the bleedin’ obvious.

    I know it is fashionable in certain circles to attack Labour at every turn, but you might want to consider that social progress (including on human rights) is achieved by building majorities for legislative action, not in crowd-pleasing grandstanding.

    There will no further legislation on abortion rights in this Dáil becaus ethere is no majority fo rsuch legislation. That is a fact. Such legislaiton will be possible in the next Dáil, but only if parties and others who are clearly pro-choice (unlike SF, FG and FF) are returned. That is how we will vindicate the rights of women in Ireland expressed in the ICCPR.

  3. Desmond, it is not grandstanding, it is highlighting human rights law that Ireland has signed up to.

    I was at Geneva for the UN questioning of Ireland, and the Irish delegation formally withdrew the argument that Joan Burton is now making, after the UN told them that it was totally unacceptable.

    Naturally, this being Ireland, we are back to square one two days later, but the Irish government’s withdrawal of that argument is already on the record at the UN Human Rights Committee.

  4. Desmond, you say “Achieving wider accesss to abortion in Ireland requires, as Joan has rightly said, the support of a majority in parliament and to change the constitution the support of a majority in the country. You are attacking Joan Burton for effectively stating the bleedin’ obvious.”

    That goes to the core of the issue addressed at the UN Human Rights Committee. Respecting our human rights obligations means that we must stop seeing that argument as “stating the bleeding’ obvious.” Majority votes in parliament or referendums can not be used to deny human rights. That is the essence of human rights law.

  5. Michael, vindicating such rights is not possible without a Dáil majority and, where necessary, a majority in the country for a change to the constitution. Joan’s point is clear … to achieve the progress that we want to see on this matter (and remember that Labour is the ONLY significant party that supports repealing the 8th amendmemnt) we have to construct such majorities. One may take an absolutist approach and say this is not good enough and demand that the legislature simply act without delay. One may make such a demand until one is blue in the face of course. Alternatively, one might tread the harder path to build the majorities necessary to achieve access to safe and legal abortion in Ireland. That is the path Labour takes.

  6. Desmond, vindicating such rights is possible without a Dail majority, by taking legal cases to the European Court, which can force the Dail to reluctantly do what is right.

    Highlighting that we are breaching human rights is an important part of building a majority that might vote to legitimise itself without being forced to, and thereby avoid vulnerable people having to take the legal route to vindicating their rights.

  7. Indeed, the ECtHR is an effective way of vindicating rights, but the application of that Court’s rulings still requires a Dáil majority or a majority in the country to change the constitution. You cannot avoid this … and that is Joan’s point. Furthermore, the ECtHR has a different view of what constitutes such rights as recent cases illustrate (a) because it is referencing a different human rights treaty, and (b) certain allowances are made by the Court in the interpretation of such rights by member states of the Council fo Europe.

    While campaigning and highlighting women’s rights to reproductive choice, autonomy and privacy are an essential part of building majorites for change, the need to build parliamentray and popular majorities remains. Attacking Joan Burton for making this point, the one party leader who is unequivocally pro-choice, is what I meant by grandstanding. If all you want is protest, then great. But if you want to achieve actual change, then you’re going to have to get your head around building these majorities.

  8. The problem with what she said is that (if the way it’s reported is a fair representation) she’s presenting it as a principle. “But she said as democrats everyone must accept the will of the people.” That’s a moral claim: if you’re a democrat, you must accept the will of the people.

    But of course if you’re a rights-respecting or liberal (classic sense) liberal that’s not the case, because you know that “the people” don’t always respect the rights of all the people.

  9. Human rights exist whether or not a parliament votes for them. The existence of human rights are not dependent on parliamentary or popular votes. However, the reproductive rights we seek may not be vindicated in this country without a majority vote in the Dail and, if needed, a majority popular vote to change the constitution. People may try to wish away these realities, but they are unavoidable. This is precisely Joan’s point.

    And this is where I think the confusion arises with Joan’s words compared to Fitzgerald’s coments/withdrawal. The justice minister and her civil servants tried to argue that such rights have already been determined by the Irish people. That view is clearly untenable. Joan supports reproductive rights and will campaign for them but she recognises they will not be vindicatewd without creating the majorities necessary to deliver them. The accusation you threw at Joan was ill-judged, Michael.

  10. No one under the age of 49 voted in that referendum they keep referring to as the ‘will of the people’.

  11. Article 6 guarantees the individual’s right to life while Article 7 prohibits torture and cruel, inhuman or degrading treatment.

    Does the UN have an official stand with regards to the status of a foetus / embryo / pre born / etc. Is it written in the ICCPR?

    If a society operates under a definition that the foetus is a human life, than how can abortion not violate Article 6?

  12. Richie,

    A foetus is not a person. Personhood happens when the baby can exist outside of the mother.

  13. @Richie .. the primary human rights instrument is the Universal Declaration of Human Rights adopted by the United Nations in 1948. The very first article of this declaration says that “All human beings are BORN (my emphasis) free and equal in dignity and rights”. Human rights law does not include the unborn.

  14. A lively little debate! Both Des and Michael N are right in what they say, “pointing out the bleedin’ obvious” indeed, but seem to be arguing at cross purposes. Joan Burton is a beacon of common sense in the Dail on the abortion issue, and all Irish professional politicians are cowardly when it comes to facing down the “Every Fertilised Egg is Holy” lobby. Those are not incompatible statements, and I believe both are true.

    We have the abortion legislation we have because our TDs have reason to believe they will lose votes if they appear to be standing up for “unpopular causes”. Not just on the abortion issue either- the same attitude prevails amongst our TDs when it comes to minority rights generally. That’s why this nation is in the mess it is before the UN Human Rights Courts. We are a Church-Dogma-Fearing Nation after all- and don’t our politicians know it! On the abortion issue itself, I came across the following argument recently; for some strange reason, it seems to silence religious zealots- one reason people might like to use it! It goes as follows: “If every fertilised egg is Holy (adapting Monty Python to circumstances agreed by ProLife) , why is it that about 20% of early pregnancies are spontaneously aborted? Why does God allow for such violations of his own laws- or might it be that God is actually responsible for most of the terminations on the planet?” Ouch!

  15. The issue of pregnancy termination is not necessarily an issue which we can agree on just because we are atheists and if you have known a putative father whose pregnant partner terminated their agreed pregnancy without even discussion, it couds the water. What we CAN agree on is the need to work together to build a rational, ethical and secular society free from superstition and supernaturalism.
    That key to change lies in the control of our education system by religious sects who deliberately drum down the cognative potential of out students by constraining them within a tight theological construct when they are in the mentally formative period of life. That is where our chalenge is IMO. It is the area where the forces of darkness are most vurnable.

  16. @Michael (not Nugent)
    You said “A foetus is not a person. Personhood happens when the baby can exist outside of the mother.”
    This seems to me, to be as arbitrary as picking personhood beginning at conception.
    It would seem to me that personhood and human nature is defined by the capacity to think. So brain function is what matters, not some arbitrary period like when the baby is born.

  17. Whatever Joan intended probably it is the reality in Ireland even today. Majority rule means discriminating against minorities and this is how the referendum system works up to a point when the UN steps in and says that the majority opinion is no resson to deny anyone their rights:-) Hurray dor 5he UN.

  18. # m carroll
    Where does the UN claim to receive its authority from?
    Obviously not from the votes of the people as no one votes for them. Democracy may have flaws, better than rule by un-elected authoritarians in my view.

    Different nations have different views, some I agree with others not so much, but better local democracy than imposition by our (self proclaimed) betters.

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