This post about Ireland’s appearance before the UN Human Rights Committee - the monitoring body for the International Covenant on Civil and Political Rights (ICCPR) - focuses on an aspect of the state’s justification of our extremely restrictive recent abortion law that caught my attention as well: its compliance with “citizens’ right to vote”.
“Mary Jackson, principal officer at the Department of Health, responding to Ireland rapporteur Yuval Shany’s questioning about how Ireland’s current regime could be reconciled with Articles 6 and 7 of the ICCPR, which guarantee the right to life and prohibit torture and cruel, inhuman or degrading treatment, said that ‘Ireland’s approach to legislating for abortion complied with Article 25 of the Covenant which guaranteed all citizens’ right to vote and self-determination.’
Article 25 reads as follows:
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;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Ireland’s position, then, was that torture and cruel, inhuman or degrading treatment could be administered provided that it arose from the free expression of the will of electors.
Or perhaps it could not be torture, or cruel, inhuman or degrading treatment, given that voters had freely chosen to administer it.”
Without having looked too deeply at the proceedings, I can spot one flaw in the argument here: the reference to Art. 25 was not meant to justify a violation of Art. 7, because, as the rapporteur stated and any student of human rights knows, the prohibition of torture is absolute and therefore admitting of no justification or, in the legal term, ‘derogation’. More to the point, ascribing the status of non-derogable “mental torture” to the theoretical operation of the abortion legislation – where a woman who requests a termination because of the threat of suicide faces interviews by multiple psychiatrists before the procedure may, possibly, be allowed – is an extreme position legally, even if it doubtless has moral force.
The use of Art. 25 seems to be more of a weak figleaf of protection for Ireland’s abortion regime from outside criticism by reference to the inherent difficulty of passing controversial social (i.e., ‘religious’) legislation in Ireland. The appeal is made both to the constitutional majoritarianism underlying the pro-life 8th Amendment, and – at least implicitly – to the principle of sovereignty and the ability of democratic polities to decide, or self-determine, the implementation of ‘human rights’. The latter is a common refrain in these interactions between states and international bodies, to which the usual response is to point out the formal supremacy of international law while allowing a sensible (and politically efficacious) measure of discretion.
However, the specific (and unsuccessful) articulation of the Irish citizens’ “right to vote” also highlights one of the key aspects of human rights law: its “counter-majoritarian” quality, or the principle that formally defined ‘rights’ trump any attempt to counter them by passing legislation. It’s similar to the constitutional principles or ‘checks and balances’ within countries, except here democratic governments are bound by the international treaties they sign up to. As well as countering the ‘tyranny of the majority’, it also expresses the broader meaning of democracy as being about the protection of rights as well as just voting. Yet it equally highlights a certain contradiction of liberalism, the idea of being ‘forced to be free’, that true freedom cannot rest on free choice.
Of course, in theory (and, at times, in practice) constitutions and treaties can be amended through democratic means – usually indirectly, by governments, occasionally more-or-less directly, as in the case of the Irish plebiscites, or often obliquely, through the ‘guardians of the constitution’, the courts, national, regional or international. Nevertheless the idea persists that these worthy documents take on a solid form, constraining ‘democratic’ government action – in the post above, “such things as human rights enshrined in international law”, “fundamental human rights” – for the most part because they do express ideas that we wish our governments to be held accountable to. If they don’t – well tough.
"And the United Nations has spoken. Fitzgerald listened and she heard them. Of course, “the will of the majority cannot derogate from the State’s human rights obligations”, she said. That’s new. That’s significant."
Irish solutions on womens’ rights not enough for UN
The criticism of the Irish abortion regime in effect places the Irish government in between two counter-majoritarian movements, although one perhaps admits it more readily than the other: human rights, and Catholic doctrine. The opponents of abortion in all circumstances, while making up between 10-15% of the population in repeated polling, continue to hold on to the idea that there really is a majority opposed to liberalisation of abortion – the last referendum in 2002, further constraining the constitutional position, was after all only very narrowly defeated – but ultimately their argument, along with all other pro-life movements, rests on a ‘rights claim’ for the unborn that cannot be alienated by any democratic majority (in practice, other European Catholic countries have more liberal abortion laws where the position of the Church is one of criticism rather than blocking). On the other side, while not enshrining freedom of choice as a right in itself, the international human rights movement insists that legislation be undertaken in accordance with other inalienable rights of the person.
To pass such adequate legislation the Irish government would need to face down a very vocal minority, both within parliament (and its own parties) and outside, as well as a broad reluctance to pursue ‘liberal’ goals, better than it has done already; and ultimately to address the constitutional issue by engaging on yet another bitter referendum campaign. Yet to do so - which is only what Irish women deserve - in favour of one counter-majoritarian project, even with the supposed authoritative force of international law, over another, deeply culturally embedded, is to pursue a stalemate of ‘rights’ that only highlights their limitations in the face of politics. (My own position with regards to abortion is that since the two claims are irreconcilable, the validity goes to the one compatible with a secular, pluralist state - but that is still a political stance) .
“However, the reasoning is not at all out of joint with Ireland’s dominant political culture. Attending to the demands of ‘the markets’, the general will of money, first and foremost, is the self-evident necessity, and the basic logic to political life according to conventional wisdom is that only once these things are attended to can the general public have access to the services it requires. Among the general public, those with property and money come first.”
What I’ve been working on of late is the legal basis of this, in Europe particularly, in the idea of an “economic constitution” that establishes an order of market freedoms protected from (majority) democratic interference. These are the ‘fundamental freedoms’ of the EU (of movement of goods, people, services and capital) to be balanced, judicially, against ‘fundamental rights’ that are supposed to protect social and democratic interests. Yet the latter are not, in formal terms anyway, necessarily more ‘democratic’ – and the opposition of such rights underlies the “structural bias” (Koskenniemi) of the legal and judicial system towards particular economic and social ends, away from the debate and discourse of democratic politics. Challenging the use of rights might be as ‘revolutionary’ as calling for the implementation of some of them.