ADVOCATING ABORTION RIGHTS IN NORTHERN IRELAND:

LOCAL AND GLOBAL TENSIONS

ABSTRACT

It is frequently claimed that the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is more significant for the cultural, rather than legal, work that it does in re-framing locally contested gender issues as the subject of international human rights. While this argument is well-developed in respect of violence against women, CEDAW’s cultural traction is less clear in respect of women’s right to access safe and legal abortion. This article examines the request made jointly by Alliance for Choice, the Family Planning Association Northern Ireland and the Northern Ireland Women’s European Platform to the CEDAW Committee to request an inquiry under the CEDAW Optional Protocol into access to abortion in the jurisdiction. The study found that the CEDAW framework was useful in underpinning alliances between diverse pro-choice organisations, but less effective in securing the support of ‘mainstream’ human rights organisations in the jurisdiction. The article argues that the local cultural possibilities of CEDAW must be understood as embedded within both the broader structural gendered limitations of international human rights law and persistent regressive gendered sub-themes within mainstream human rights advocacy.

KEYWORDS

International human rights law, transnational advocacy, Northern Ireland, abortion

laws, CEDAW , Optional Protocol Inquiry

INTRODUCTION

Feminist engagement with legal reform and strategic litigation typically acknowledge

the social and cultural limitations of such work, in privileging legal expertise and

legal narrative over the expertise and experience of women (see especially Smart,

1989; see also West, 2009; Roa and Klugman, 2014). The Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW), by contrast,

arguably faces these limitations in reverse; whereas the Convention is plagued by

reservations and a lack of sanctions for the non-compliance of state parties (Cook,

1990), it is distinguished for its cultural work in affirming women’s rights and

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equality in local (Merry, 2006) and global (Joachim, 2007) settings. This analysis

would suggest that the best hope for securing progressive cultural and legal change in

domestic settings with restrictive abortion regimes is to utilize both domestic and

international approaches.

The article considers the interplay of domestic legal and international human rights

strategies in pro-choice advocacy in Northern Ireland. The article begins by

discussing the strategic litigation pursued by the Family Planning Association

Northern Ireland (FPANI) through the Northern Irish courts since 2002 to compel the

Department of Health, Social Services and Public Safety (hereinafter the Department

of Health) to bring forward guidance for medical professionals on the lawful

provision of abortion in the jurisdiction. While the litigation has been successful in

formal legal terms, embedded cultural and political resistance to reform has

undermined ostensible legal gains. The article then turns to the initiative by Alliance

for Choice, the FPANI and the Northern Ireland Women’s European Platform in 2010

requesting the CEDAW Committee to conduct an inquiry into access to abortion in

the jurisdiction under the CEDAW Optional Protocol. Unlike the FPANI’s strategic

litigation, the CEDAW inquiry request has pursued an avowedly rights-based

approach. The positive cultural impact of the inquiry request is clearest in

underpinning valuable new alliances between previously disparate pro-choice

organisations, but the article also critically reflects on the evident cultural limitations

of the CEDAW initiative, in particular in failing to secure the support of mainstream

human rights organisations in Northern Ireland. In marked contrast to the CEDAW

inquiry request, the 2013 Draft Guidance issued by the Department of Health for

medical professionals on the lawful provision of abortion in the jurisdiction motivated

robust opposition from human rights NGOs operating in Northern Ireland, who were

alarmed by the manifest compliance issues with civil and political rights guaranteed

under the European Convention on Human Rights presented by Draft Guidance. The

article therefore argues that the local cultural possibilities of CEDAW must be

understood as embedded within the broader structural gendered limitations of

international human rights law and persistent regressive gendered sub-themes within

mainstream human rights advocacy. Further, the utilization of CEDAW to support

domestic litigation strategies may offer a tentative coming together of advocacy for

both cultural and legal change, in Northern Ireland and beyond.

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ABORTION IN NORTHERN IRELAND: LAW, CULTURE AND STRATEGY

Obstacles to abortion law reform in Northern Ireland are often framed in terms of ‘the

cultural problem’ (Fegan and Rebouche, 2002). Invocations of Northern Ireland’s

‘distinctive cultural values’ (Smyth, 2006), erroneously defined as cross-community

opposition to abortion, are never distant from anti-choice demands to maintain the

status quo. Lisa Smyth (2006), in particular, has unpicked the strategy of anti-choice

groups in Northern Ireland to portray opposition to abortion as a ‘cultural norm’ that

unites both sides of the ethnic divide in an otherwise deeply divided society and that

distinguishes Northern Ireland from the rest of the UK. Political and legal strategies of

anti-choice groups pursue and maintain official recognition for these claimed cultural

norms. The efficacy of the strategy is vindicated by the aversion of the Northern

Ireland Legislative Assembly (hereinafter the Assembly) to legal reform on abortion

and the continued unwillingness of the UK government to extend the 1967 Abortion

Act to Northern Ireland, motivated by claimed submissiveness to the will of the

people of Northern Ireland. The extent to which deference to Northern Ireland’s

perceived ‘distinctive cultural values’ shapes local and broader debates on the

jurisdiction’s abortion law becomes evident in the tone and language of both the

Assembly and UK government. Throughout the Assembly’s first debate on abortion,

in 2002, the portrayal of opposition to abortion as an issue uniting ‘Protestant,

Catholic and dissenter’ was a recurring motif. More recent Assembly debates have

attempted to pivot also to concern for the ‘mother’s welfare’, but the narrative of

unified cross-community opposition to abortion remains firm. Moreover, the UK

government’s response to repeated examination from the CEDAW Committee shows

little divergence from its position in 1985:

Since the introduction of direct rule in 1972 the view has been taken not tointroduce a measure to change the abortion laws in Northern Ireland unless it is likely to command broad support among the people of the Province. Such support does not exist at present. (Minister Nicolas Scott, reproduced in Furedi, 1995: 97).

The framing of abortion in Northern Ireland as primarily a cultural matter, secondarily

a legal matter, but rarely a matter of women’s rights, is not only a construction of anti-

choice groups. Scholarship on abortion in Northern Ireland is not bountiful. Certainly,

the topic has attracted less scholarly analysis than the legal and social context of

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abortion in the Republic of Ireland (see, for example, Mullally, 2005; Smyth ed.

1992). The relative scarcity of academic analysis is, arguably at least, attributable to

the prevailing concern of gender analysis in the jurisdiction with the gendered

implications of the conflict, in particular on women’s activism (see generally,

Roulston and Davies, 2000). Women’s pro-choice activity features at the margins of

this broader literature on women’s activism, positioning pro-choice advocacy either as

an issue of pragmatic cross-community women’s activity when broader feminist

alliances proved unworkable (Roulston, 1989; Ward 1986), or as an issue deliberately

silenced in the name of avoiding further differences amongst women (see discussion

of the approaches of the Women’s Support Network, Cockburn, 1998, and discussion

of the Northern Ireland Women’s Coalition, Fegan and Rebouche, 2002). Fegan and

Rebouche (2002) link the dominant construction of women and women’s activism in

Northern Ireland as peacemakers and inter-ethnic reconcilers with the relative

invisibility of narratives of women’s equality and equal rights in the jurisdiction:

When women are considered first and foremost in relation to others their own individual needs and future potential are in danger of being neglected by wider society. (page 226)

Specifically doctrinal analysis of abortion law in Northern Ireland is primarily

concerned with the lack of legal clarity and the consequent need for reform (Hewson,

2004; Capper, 2003; McGleenan, 1994, 2000). Northern Ireland’s restrictive abortion

regime has its origins in the 1861 Offences Against the Person Act, which

criminalizes the unlawful procurement of a miscarriage (sections 58 and 59). The

partition of Ireland in 1920 is responsible for the divergent – though related –

trajectories in the legal regulation of abortion adopted by the jurisdictions in the north

and south of Ireland. Whereas abortion was principally addressed through

constitutional amendment in the Republic of Ireland, the circumstances for lawful

abortion in Northern Ireland were refined by four Northern Irish cases in the 1990s. In

1993, the Northern Ireland High Court affirmed that Bourne was the leading authority

on the law of abortion in the jurisdiction and that ‘the life of the mother’ referred to

her physical and mental health (Northern Health and Social Services Board v F and

G, 1993). Subsequently, the understanding of the ‘life of the mother’ was interpreted

to include her ‘physical or mental health or well being [emphasis added]’ (Northern

Health and Social Services Board v A and others, 1994), ostensibly very broad

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grounds. However, in the later CMB decision, Justice Pringle took great pains to

refine and narrow the scope within which abortion could be lawfully be obtained in

the jurisdiction as stated in the A case. He interpreted ‘well being’ to mean ‘physical

and mental health’, further stating that ‘the adverse effect must be permanent or long

term and cannot be short term’ (Western Health and Social Services Board v CMB,

1995). This narrowing of the grounds for lawful termination was affirmed by the High

Court later the same year, where it was further held that the threat of serious and

deliberate self-harm, combined with the risk of serious depressive illness, constituted

grounds for lawful abortion (Down Lisburn Health and Social Services Board v CH

and LAH, 1995). Thus, abortion was held to be unlawful in the jurisdiction except

where it is necessary to preserve the life of the woman or there is a risk of real and

serious adverse effect on physical or mental health which is either long term or

permanent.

In broad terms, the result of Northern Ireland’s separate trajectory has been to make

the access to lawful abortion in the jurisdiction marginally more liberal than in the

Republic of Ireland, where abortion is available only when the pregnant woman’s life

is at risk (Protection of Life During Pregnancy Act 2013; Murray, this issue), but

significantly more restrictive than the regime introduced to England, Scotland and

Wales by the Abortion Act 1967. Further, the Northern Irish jurisprudence has

provided only an unclear and unsatisfactory legal framework for women and medical

professionals (Standing Advisory Committee on Human Rights, 1993; McGleenan,

1994).

Against the backdrop of a persistent lack of legal clarity and legislative inaction to

remedy the lack of clarity, strategic litigation led by the Family Planning Association

Northern Ireland (FPANI) has emerged as a key plank in pro-choice advocacy. In

2002, the FPANI sought a declaration from the Northern Ireland High Court that the

Minister for Health had acted unlawfully in failing to provide advice and guidance to

women and clinicians in Northern Ireland on the availability and provision of services

for the termination of pregnancy (Family Planning Association of Northern Ireland,

Re an application of Judicial review, 2003). While the FPANI’s legal action was

initially unsuccessful, the Northern Ireland Court of Appeal allowed the association’s

appeal, ultimately imposing a duty on the Department of Health to provide guidance

to medical professionals stating the law in relation to the lawful termination of

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pregnancy (The Family Planning Association of Northern Ireland v Minister for

Health, Social Services and Public Safety and others, 2004). Draft Guidance was

finally published for consultation in July 2008 (Department of Health, 2008) and

formally issued by the Department of Health in 2009 (Department of Health, 2009).

Despite being broadly welcomed by the medical profession as offering much needed

clarity to medical practitioners,1 the Guidance was successfully challenged in a

judicial review brought by the Society for the Protection of the Unborn Child (Society

for the Protection of Unborn Children, Re Judicial Review, 2009), on the grounds that

the provision for conscientious objection was unclear,2 and that the section requiring

the provision of non-directive counselling to women considering abortion, which

could include the option of procuring abortion in another jurisdiction, but who did not

meet the threshold for lawful abortion, was ‘arguably unlawful’ (Society for the

Protection of Unborn Children, Re Judicial Review, 2009: para 37). The other five

grounds of the judicial review were all rejected, confirming the broad legality of 2009

document (ibid: para 48). The offending provisions of the 2009 Guidance were

promptly withdrawn and a change in the responsible minister led to the entire

document being withdrawn in 2010. While there has been consultation on subsequent

drafts of the Guidance, none have been formally issued.

Despite the Court order, there is substantial opposition from the political parties in

Northern Ireland to the issuance of Guidance.3 Moreover, in 2014, the Minister for

1 For example, the Royal College of Nursing described the document as ‘useful’, (Royal College of Nursing, 2013: 38).

2 Because it was the Abortion Act 1967 that established the right of medical professionals to decline to perform abortions on grounds of conscience, and the 1967 Act was never extended to Northern Ireland, the 2009 Guidance stated that ‘there is no legal right to refuse to take part in the termination of pregnancy’ (para 4.1). The High Court held that there were in fact other circumstances in which medical professionals could lawfully decline to perform an abortion on the grounds of conscience, for example, where the medical professional believed an abortion to not meet the grounds for lawful abortion, where the individual’s contract of employment established such a right, or where the European Court of Human Rights might regard a denial of the right of conscientious objection to be a violation of the Convention’s article 9 freedom of conscience rights (Society for the Protection of Unborn Children, Re Judicial Review, 2009: para 44).3 None of the parties currently holding seats in the Assembly define their abortion policy as pro-choice. The Green Party’s position is the most liberal, as it advocates the publication of appropriate guidance to medical practitioners and the holding of a referendum on liberalising abortion law in the jurisdiction (Green Party Northern

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Justice David Ford, member of the Alliance Party of Northern Ireland, initiated a

public consultation on liberalising access to abortion in the jurisdiction, on the

grounds of fatal foetal abnormality and in cases of pregnancy resulting from sexual

crime (Department of Justice, 2014). The Minister’s ultimate recommendation to

change the law to permit abortion in the cases of fatal foetal abnormality, but to leave

it unchanged in the case of sexual crime, has been roundly rejected by local political

parties and has led to further litigation (this litigation is discussed further infra in the

concluding sections). The position of the local political parties means that the

prospect of legislative change from the Northern Ireland Assembly remains distant.

Against this backdrop, the efficacy of the FPANI’s strategic litigation has been a

central theme in related scholarship, and its efficacy as a tool to secure reform has

been weighed in terms of both its legal and cultural implications. Capper (2003), for

example, questions the appropriateness, in terms of separation of powers and the

appropriate function of judicial review, of calling on the courts to play such an active

role in policy-making. Hewson’s (2004) overtly feminist doctrinal intervention

expresses concern at the further empowerment of the courts, over and above medical

professionals, in abortion decision-making. Informed by the experience of the

implementation of the 1967 Abortion Act in Great Britain, where medical discretion

has been exercised in a largely progressive way, Hewson views medical discretion as

an avenue for greater facilitation of women’s agency in abortion decision-making in

Northern Ireland. Conversely, Fletcher (2005) views the litigation and its vindication

by the Northern Ireland Court of Appeal not as limiting medical discretion, but

instead as ensuring state accountability for the deficiencies of the existing regime of

accessing abortion. Where Fletcher and Hewson agree, however, is in their

Ireland, 2013), however it holds only one seat in the Assembly. Both the Democratic Unionist Party (the largest political party in Northern Ireland, which represents the majority unionist community) and the smaller Social Democratic and Labour Party define their parties as ‘pro-life’ and reject any attempts to liberalise the law, including by means of Guidance to medical professionals (Democratic Unionist Party, 2014; Social Democratic and Labour Party, 2014). The Ulster Unionist Party and Alliance Party Northern Ireland do not have a party policy on abortion and permit a free vote amongst their MLAs, though they favour the issuance of guidance to medical practitioners (Ulster Unionist Party, 2013; Alliance Party Northern Ireland, 2013). Sinn Féin is opposed to liberalising access to abortion in the jurisdiction, but favours publication of guidance to medical practitioners (Sinn Féin, 2007).

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disappointment that a more overtly rights-based argument was not pursued in the

FPANI litigation:

The human rights arguments were poorly developed in the judgements with the judges simply dismissing the possibility that Convention rights assisted the applicant’s case when they acknowledged them at all. This was partly because the F.P.A.N.I. did not pursue a strong rights argument (Fletcher, 2005: 132; see also Hewson, 2004).

Their analysis speaks to the broader need for such litigation strategies ‘to positively

and generally assert women’s reproductive rights at the same time as it seeks to

accommodate the needs of the most vulnerable’ (Fletcher, 2005: 123). The analysis

also, importantly, points to the limitations of Northern Irish public law in facilitating

and vindicating such an approach, with the poor track record of Northern Irish courts

in positively affirming women’s political equality.4

Bloomer and Fegan (2013: 109) weigh the efficacy of the FPANI strategic litigation

in slightly different terms, not so much in the specific framing of the legal arguments,

but more in terms of what they identify as the ‘religious and cultural bias at an

institutional level’ that has manifested in the continued defiance of the ultimate court

order for Guidance. The evidence they offer of wilful disregard of the rule of law by

the individuals and institutions charged with upholding it in respect of abortion in the

jurisdiction is compelling: the continued defiance of the court order by successive

Ministers for Health; the proactive attempts of the Attorney-General of Northern

Ireland to close the Marie Stopes Clinic in Belfast, in a highly questionable exercise

of his powers; and the actions of the responsible civil servants in drafting the

Guidance in such a way as to narrow the terms of access to lawful abortion in the

jurisdiction (Bloomer and Fegan, 2013). They further cite the failure of the Court

hearing the SPUC challenge to the 2009 Guidance (Society for the Protection of

Unborn Children, Re Judicial Review, 2009) to consider, despite prompting from the

FPANI counsel, the judgment of the European Court of Human Rights Open Door

4 See especially In re White [2000] NI 432, in which the Northern Ireland High Court held that the statutory obligation on the Secretary of State to appoint a Parades Commission that was ‘representative of the community’ referred, in the context of parading, to the sectarian blocks and, as such, the failure to appoint any women was lawful. This judgment was re-written for the purposes of the Northern/Irish Feminist Judgment Project (O’Rourke, forthcoming 2016).

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decision on the protection afforded to the dissemination of abortion services under the

Convention’s article 10 right to freedom of information (Open Door and Dublin Well

Woman v. Ireland, 1992) as evidence of embedded resistance to a rights framing of

abortion in Northern Ireland. The analysis of Fegan, Rebouche and others points

forcefully to the importance of ongoing extra-legal challenges to ‘the cultural

problem’ in order to effect meaningful change in the jurisdiction.

Law and litigation are embedded within important cultural frameworks that shape and

determine the everyday interpretation and application of those laws (Cover, 1983). A

practical example of this cultural specificity is the contrast between the liberal

interpretation of the 1967 Abortion Act by medical practitioners in Great Britain and

the conservatism of their Northern Irish counterparts, even in contexts such as

Northern Health and Social Services Board v A and others, 1994, where the abortion

sought by A was expressly permitted by the Northern Ireland High Court. Katharine

Side (2006) similarly questions whether law and legal reform in Northern Ireland

(either through litigation strategies or legislative change) have the power to bring

about the necessary recognition and affirmation of women’s agency and autonomy.

The common concern throughout this literature, therefore, is the extent to which

litigation strategies, such as that adopted by the FPANI in the judicial review

proceedings, challenge dominant conservative cultural frameworks and give voice to

counter-cultural frames of women’s equality and autonomy.

Such debates are not, of course, unique to Northern Ireland. They reflect much longer-

running debates core to feminist legal theory and strategies to secure reform (see

especially Smart, 1989). Nevertheless, context matters, and the particular Northern

Irish manifestation of these debates and tensions constitute a very real challenge to

pro-choice advocacy in Northern Ireland, where the prospect of legislative reform is

distant and state institutions and political leadership appear willing to flout court

orders.

THE TURN TO CEDAW

It is against a backdrop of recognised legal, cultural and practical limitations of

strategic litigation in Northern Ireland that the particular appeal and advantage of the

CEDAW inquiry procedure is best understood. The Convention on the Elimination of

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All Forms of Discrimination Against Women (CEDAW) was adopted in 1979, and

the CEDAW Committee established to monitor its implementation, in response to the

identified gendered shortcomings of the human rights canon (Bunch, 1990; Cook,

1990; Charlesworth and Chinkin, 2000). The continuing problems of enforcement of

CEDAW are, however, manifold and well-documented. As Sally Engle Merry

observes: ‘CEDAW is law without sanctions’ (2003: 943). The UK has faced, and

faced-down, repeated challenges by the CEDAW Committee to the UK government

about state non-compliance with the Convention’s obligations, due to highly

restrictive regime of access to abortion in Northern Ireland. The CEDAW Committee

has made these challenges throughout its examination of the 1999, 2008 and 2013 UK

state party periodic reports to the Committee. The UK’s consistent defiance of the

Committee’s recommendations evidences broader problems of under-enforcement of

women’s human rights within the international human rights system. It is for these

reasons that CEDAW is often considered more significant for the cultural work that it

does:

Human rights law is itself primarily a cultural system. Its limited enforcement mechanisms mean that the impact of human rights law is a matter of persuasion rather than force, of cultural transformation rather than coercive change. Its documents create new cultural frameworks for conceptualizing social justice. (Merry, 2006: 16)

Nevertheless, the adoption of the Optional Protocol to CEDAW in 2000, which

established both an individual complaints mechanism (article 1) and an inquiry

procedure for the investigation of ‘grave or systematic’ violations of the Convention

(article 8), has been the single most significant initiative to enhance enforcement of

the Convention and, ultimately, its cultural work also (see generally Byrnes, 1997;

Byrnes and Connors, 1997; Connors, 2012; Hoq, 2001; Sokhi-Bulley, 2006). Due to

the combination of the CEDAW Committee’s repeated attention to abortion, plus its

new capacity to investigate systematic violations of women’s human rights, the

Committee was felt to be optimally placed to advance the important cultural work to

be done in Northern Ireland and to articulate a broad human right of access to

abortion on the grounds of women’s equality.5

5 This account is based on the author’s own involvement in the CEDAW inquiry request initiative.

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The inquiry request was motivated, implicitly and explicitly, by the recognised legal

and cultural limitations of the FPANI litigation, but also in the hope that it might

advance that litigation and its efficacy. The inquiry request offered an opportunity to

prompt more positive developments in respect of the Guidance, but also to bring

closer international scrutiny to the broader human rights compliance issues raised by

Northern Ireland’s restrictive abortion regime. (Even if successful, the litigation

seeking publication of Guidance would only bring clarity to the existing law; it would

not change the law in terms of access to abortion.) In December 2010, Alliance for

Choice, the Northern Ireland Women’s European Platform and the Family Planning

Association of Northern Ireland therefore requested the CEDAW Committee to

conduct an inquiry into access to abortion in Northern Ireland under the Convention’s

Optional Protocol.

The idea of using the inquiry mechanism was first seriously mooted in the corridors of

the 2009 UK periodic review by CEDAW. The Northern Ireland Women’s European

Platform (NIWEP) was present at the hearing and participated in these early

discussions. Quickly recognizing the need for further local expertise in both advocacy

and service provision on access to abortion in Northern Ireland, approaches were

made to Alliance for Choice and the FPANI to seek support for an inquiry request.

(FPANI submitted its own separate Shadow Report to the CEDAW Committee for the

2009 UK periodic review and had identified the Committee as a potential avenue

through which to advance its advocacy.)

Of the three organisations involved in the inquiry request, none principally define

their mandate or priorities in terms of international human rights law or advocacy.

While all three organisations periodically make reference to international human

rights law in the course of their advocacy, these are not ‘human rights NGOs’ as

typically understood. The adoption of a human rights framing in the CEDAW inquiry

submission, and related advocacy, reflects not so much an unequivocal endorsement

of the international human rights system. Rather, it can be understood as the selective

strategic invocation of a specific human rights mechanism in the face of local

government opposition, UK government inaction, and the resource and legal

limitations of a strategic litigation approach in Northern Ireland. This was not a

question, therefore, of the gradual realisation of pro-choice advocates of a ‘local rights

consciousness’ (Merry, 2006: 134). The individual women and organisations that led

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the CEDAW inquiry submission did not need to be reassured that they were rights-

holders, rather they needed to be convinced that a human rights framing offered

credible prospect of (legal or cultural) progress, with no significant countering threats

of political or material loss. The participating organisations actively weighed the

potential costs of the initiative, namely resource costs, in terms of the organisational

time that would be required to compile the submission without any guarantee that the

Committee would accept the request. They further considered the potential political

costs, that closer CEDAW Committee scrutiny might reinforce local opposition to

change and ultimately strengthen claims of ‘distinctive cultural values’. And finally,

the possible negative legal implications were considered, in terms of the potential for

the Committee either to decline to conduct the inquiry, or to conduct the inquiry and

not find systematic CEDAW violations, thereby producing a ‘false innocent’.

The potential benefits of the initiative were also actively considered, namely, while

the submission would require organisational time, it would not require a financial

outlay, which presented a clear advantage over strategic litigation. In addition, it was

felt that the international scrutiny might embarrass the UK government into taking

action, in line with established human rights advocacy strategies of ‘shame

mobilisation’ (Drinan, 2002). Likewise, in a practical sense, all communication from

the Committee on the inquiry would be directed to the state party and not the

devolved region. The process itself might, therefore, compel the UK government to

take more active responsibility for the CEDAW non-compliance of abortion law in

Northern Ireland. Further, the express human rights framing offered the potential of

alliances with broader civil society groups who, while not avowedly prochoice, did

subscribe to the pursuit of international human rights standards.

The ultimate submission would take a year to complete, involving frequent meetings

between the three organisations to refine content, determine appropriate evidence, and

strategize around garnering written support from other civil society organisations. The

submission made by the requesting organisations included and went well beyond the

absence of legal clarity in the jurisdiction, and instead focused on the material and

emotional cost to women of the legal status quo:

This submission provides details and evidence of the grave and systematic nature of these human rights violations. To focus solely on individual incidents of reproductive rights violations in Northern Ireland as isolated cases would, firstly, fail to capture the scale of the problem, secondly, deny the

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systematic institutional failings giving rise to these violations, and thirdly, not address the underlying discriminatory political factors giving rise to the denial of the reproductive rights of women living in Northern Ireland (FPANI, et al, 2010: 3.14).

The full submission was over 100 pages in length and the bulk of the submission

(Section Two) was dedicated to describing and evidencing the violations of articles 2,

5, 10, 12, 14 and 16 of CEDAW. The submission documented the violation of article

2’s obligation to remove discriminatory penal provisions, due to the existence of

criminal sanctions in Northern Ireland for medical procedures required only by

women. Further documented was the continuing violation of article 5 (duty to

challenge discriminatory social and cultural patterns) caused by the UK government’s

deference to discriminatory social and cultural attitudes surrounding abortion in

Northern Ireland. This ongoing violation was evidenced by, for example, the failure

of statutory bodies such as the NIHRC to publicly articulate the state’s human rights

obligations in respect of abortion. The violation of article 5 was further evidenced by

the tenor of Assembly debates on abortion and the failure of political leaders to

challenge the regular picketing and intimidatory tactics of anti-choice groups towards

women seeking to access the services of the Family Planning Association (FPANI, et

al, 2010: 27). The discussion of the violation of article 10 (non-discrimination in

education) concerned the level of school discretion permitted in Relationships and

Sexuality Education uniquely in Northern Ireland and not in the rest of the UK

(FPANI et al, 2010: 37). Non-compliance with article 12’s guarantee of non-

discrimination in healthcare was detailed at some length (FPANI et al, 38-56), most

notably, in terms of poor provision of abortion aftercare (FPANI et al, 2010: 44-46).

Extensive attention was also given to procedural requirements of article 12 and the

failure of the state to ensure that appropriate judicial, administrative and legislative

measures were available to women entitled to a lawful abortion within the jurisdiction

(FPANI et al, 47-56). The uneven physical and mental health consequences of the

restrictive abortion regime, that are borne by women but not men, were detailed in

order to demonstrate discrimination in marriage and family relations, which is a

violation of article 16 (FPANI et al, 57-58). The particular toll on rural women was

discussed in order to evidence a violation of article 14 (rights of rural women). The

submission thereby documented the systematic violation of CEDAW articles 2, 5, 10,

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12, 14 and 16, due to the restrictive social, cultural and legal context in which women

attempt to exercise reproductive freedoms in Northern Ireland. Finally, Section Three

of the submission set out a powerful rebuttal of the UK government’s repeated

statements about local opposition to change, by detailing public opinion data, surveys

of medical professionals, and letters of support from women’s organisations and trade

unions, all in favour of liberalising access to abortion in Northern Ireland (FPANI et

al, 59-85).

The submission is, in-and-of-itself, the most detailed, comprehensive and robustly

evidenced documentation of the legal, political and social context of access to

abortion in Northern Ireland, as well as the material, emotional and political

consequences of the restrictive abortion regime. It evidences the value of the

collective endeavour and enterprise of its authoring organisations, who were able to

pool their service provision and advocacy expertise in order to produce this unique

submission. Moreover, while the three authoring organisations worked to common

goals, they did not have a prior record of collaborative working in order to produce a

defined output, such as the inquiry request. In terms of the description of the law and

context, evidence-gathering, and collaborative working, the request for an inquiry is

arguably a victory for having happened at all. Merry (2003) argues that the CEDAW

Convention and Committee are more important for the cultural work that they do, in

allowing contentious or ignored issues to be reframed as global human rights issues,

than in the formal enforcement of their legal standards. The collaborative working

involved, and the framing of the submission in rights-affirming language throughout,

evidence both the cultural work that an inquiry mechanism can facilitate, as well as

the particular receptiveness of CEDAW to framing abortion as a rights issue. This

latter point is usefully contrasted with the identified limitations of the domestic public

law regime and the FPANI strategic litigation.

THE CULTURAL LIMITATIONS OF CEDAW

The potential dividends offered to local pro-choice advocacy offered by the CEDAW

inquiry mechanism are significant. Nevertheless, the CEDAW Convention and

Committee do not operate in a vacuum. Rather, CEDAW is embedded within an

international human rights system characterised by structural gendered limitations

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(see generally Bunch, 1990) and supported through human rights advocacy that, while

largely progressive, nevertheless evidences regressive gender sub-themes (O’Rourke,

2013: 65-73). In many respects, the Northern Irish case and the request for an inquiry

evidence the cultural work that CEDAW can do, in underpinning alliances across

feminist and service-provision pro-choice organisations and in reframing demands for

law reform into rights-affirming language (Joachim, 2007). But the Northern Irish

case also points to the limitations of that cultural work, in particular when reflecting

on the unwillingness of local human rights NGOs to support the inquiry request.

Given the implications of the UK’s continued defiance of the CEDAW Committee for

human rights compliance more broadly in Northern Ireland, it might reasonably be

assumed that human rights NGOs have been to the forefront of activities to secure

state compliance with CEDAW’s recommendations. Instead, at the time of the inquiry

request, mainstream human rights NGOs were notable by their silence on the issue.

As the article documents more fully below, it was only compliance issues with civil

and political rights guaranteed under the European Convention of Human Rights that

ultimately spurred local human rights NGOs to act on abortion.

Human rights activism in Northern Ireland has always been a fraught activity (see

generally Curtis, 2014; Bell and Keenan, 2004). The state-based nature of human

rights obligations meant that it was the state‘s activities that were subjected to

scrutiny by rights-based advocacy and the international human rights system in

Northern Ireland. In a conflict defined by opposing positions on the legitimacy of the

state, it was very difficult to posit the exclusive legal scrutiny of the state‘s conduct of

the conflict as a politically neutral activity. Thus there is a widely-held perception of

international human rights law as a political and legal discourse ‘owned’ by the

minority Catholic-nationalist community in Northern Ireland (Curtis, 2014). This

perception militated against broad-based civil society advocacy to document human

rights violations. The state’s powers of arrest and detention, and unlawful killings by

security forces were the primary concern of litigation emerging from Northern Ireland

at the European Court of Human Rights (Dickson, 2010). A review of human rights

documentation and advocacy work in Northern Ireland during the Troubles reveals

five themes to this advocacy, organised along a traditional catalogue of civil and

political rights protections: access to justice, the state’s use of force, states of legal

15

exception, restrictions on political organising and the treatment of prisoners

(O’Rourke, 2013: 74-5).

One potential area of overlap between human rights and women’s rights advocates

during the Troubles concerned the lack of clarity in the law governing access to

abortion in Northern Ireland. In May 1993, Professor Simon Lee of the Standing

Advisory Committee on Human Rights (SACHR) (the predecessor to the

contemporary Northern Ireland Human Rights Commission) wrote a paper entitled:

‘Abortion Law in Northern Ireland: the Twilight Zone’ (Standing Advisory

Committee on Human Rights, 1993). Prompted by the decision of the Irish Supreme

Court in the X case, the SACHR paper argued that the prevailing uncertainty in the

law was sufficient to amount to a violation of the legal certainty requirements of

article 10 of the European Convention on Human Rights. The thrust of the paper was

to assert the inevitability of a successful challenge to the status quo in the European

Court of Human Rights, and consequently the need for domestic legislation on the

matter to provide clarity.

[T]his paper simply insists that whatever the content of the law is, it should be sufficiently accessible to citizens to satisfy the requirements of the international law of human rights (SACHR, 1993: para 19).

Despite the SACHR paper, abortion never featured prominently within local or

international human rights organizations operating in the jurisdiction during the

conflict and its aftermath. Even the formulation advanced by SACHR – avoiding the

substantive issue, while arguing that uncertainty in the law was a human rights

violation – did not successfully penetrate mainstream human rights advocacy in

Northern Ireland and the Committee on the Administration of Justice (CAJ), the

leading indigenous human rights organisation, declined to adopt the SACHR

position.6

These gendered patterns of human rights advocacy established during the conflict in

Northern Ireland have persisted through the most recent round of CEDAW-based

advocacy for liberalization of abortion in law. Access to abortion in Northern Ireland

has been the single most significant CEDAW compliance issue raised with greatest

frequency and concern by the Committee in its two decades of examining UK state

reports, yet has hardly penetrated mainstream human rights advocacy involving

6 Christine Bell, Personal Communication, September 2007.

16

CEDAW. For example, CAJ was not initially approached to join the civil society

inquiry request to CEDAW due to their previous silence and inactivity on the issue of

abortion in Northern Ireland. This inactivity is illustrated most notably the decision

not to support SACHR’s 1993 paper, but also by the more recent decision not to

mention access to abortion or reproductive rights in its 2008 Shadow Report to

CEDAW (Committee on the Administration of Justice, 2008), despite the specific

recommendations made by the Committee in its previous Concluding Observations.

Neither access to abortion specifically, nor reproductive rights in general, ultimately

featured anywhere in the 2013 Shadow Report to CEDAW (Committee on the

Administration of Justice, 2013), despite having received a copy of the CEDAW

inquiry request.

Similarly, Amnesty International UK did not support the request for an inquiry when

it was made in 2010. At that time, the organization had no track record of work on

abortion law in Northern Ireland. Amnesty International’s Belfast Office has a

programme of work that largely focuses on accountability issues concerned with

dealing with the past (Amnesty International UK, 2012) and institutional and clerical

abuse, although it has broadened more recently to include violence against women, in

particular human trafficking (Amnesty International provides the Secretariat to the

Northern Ireland Assembly’s All Party Group on Trafficking). Amnesty International

did in 2007 adopt a global position on abortion which advocated, amongst other

things, the decriminalisation of abortion, the provision of abortion services to women

pregnant as a result of rape and to women whose lives were endangered by the

continuation of pregnancy (Amnesty International, 2007). However, the

recommendations sought in the inquiry request went beyond that global position. The

particular challenges faced by the Amnesty International Belfast Office within

Northern Irish Catholic schools, who disbanded their Amnesty groups upon adoption

of the global position, are also noteworthy factor in this discussion (McDonald, 2007).

Finally, Northern Ireland’s independent human rights commission, also established

under the 1998 Belfast/Good Friday Agreement (Agreement Reached in Multi-Party

Negotiations, 1998: Rights, Safeguards, Equality of Opportunity, para 5), has been

resistant to articulating international human rights obligations as they pertain to

abortion in Northern Ireland. In its 2008 guidance to the Secretary of State on the

17

proposed content of a Bill of Rights for the jurisdiction, the Northern Ireland Human

Rights Commission (NIHRC) stated:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added) (NIHRC, 2008: 116)

In a small jurisdiction such as Northern Ireland, the actions and choice of priority

issues of the NIHRC can be agenda-setting. Given their ‘unique position’ between

government, civil society organisations and NGOs, the importance of the national or

sub-national human rights institution in validating the human rights resonance of

particular issues is considerable (Smith, 2006).7 Despite the specific recommendations

by the CEDAW Committee in its previous Concluding Observations, the NIHRC

made no reference to women’s reproductive rights or access to abortion in its 2008

Shadow Report to the Committee.

The role of human rights advocacy in local and transnational settings in advancing the

legal and normative development of human rights, in addition to human rights

enforcement, is typically celebrated by scholars of such advocacy (see especially

Keck and Sikkink, 1998). Such work appears to assume (implicitly at least) that the

values underpinning human rights mobilization are progressive. These implicit

assumptions are evident in the identification of transnational advocacy networks as

constructed around ‘principled-issues’, consisting of actors motivated by a selfless

commitment to social struggles of the disenfranchised, and the need to circumvent the

recalcitrance or opposition of the violating state (Keck and Sikkink, 1998). Findings

from the Northern Irish case suggest that this assumption may not be entirely correct.

While human rights advocacy networks coordinate around largely progressive

agendas of individual rights and state accountability, the response of human rights

NGOs to the CEDAW inquiry initiative reveals space within these larger narratives

7 By contrast, the Irish Human Rights Commission raised abortion in its Shadow Reports to the CEDAW Committee and its submissions to the Irish Government to inform the state report (IHRC, 2004; 2008).

18

for regressive sub-themes seeking, most notably, the regressive regulation of women’s

sexuality (O’Rourke, 2013: 65-73).

The reticence of ‘mainstream’ human rights NGOs to forcefully advocate for

women’s access to abortion reveals the gendered chinks and gaps of the ‘transnational

consensus building’ (Merry, 2006) work that produces international human rights law,

and its local consequences in sites such as Northern Ireland where human right-based

advocacy for abortion law reform is pursued. The creation and enforcement of

international human rights law is, very often, a site of conflict where different values

and priorities and resource-inequalities play out (Bob, 2012; Chappell, 2006). Norm-

generation occurs in a space in which meanings are heavily contested, and in which

social movements constitute ‘interpretative communities’ that add shape and

definition to international law (Cover, 1983). Movement actors are involved in

production and maintenance of meaning, as they frame how movement members and

observers understand a particular issue or problem, such as accessing abortion, in

local, transnational and global spaces (Buss and Herman, 2003). On the whole, the

unwillingness of the mainstream human rights NGOs to support the inquiry request

and to work more broadly on CEDAW-based advocacy for abortion law reform,

reveal important limitations to the cultural work possible for CEDAW in a difficult

domestic setting.

THE STRUCTURAL AND LEGAL LIMITATIONS OF CEDAW

Analysis of the ‘cultural work’ that CEDAW can do, for example in fostering shared

understandings of particular social problems such as the denial of abortion services to

women, needs also to be understood as embedded within the structural and legal

framework of the international human rights system. The under-enforcement of

women’s human rights has already been recognised in analysis of CEDAW, and in the

specific case of the UK government’s repeated defiance of CEDAW Committee

recommendations to expand the restrictive access to abortion in Northern Ireland. The

under-enforcement of women’s human rights, in particular the specific rights codified

in CEDAW, means that state non-compliance with more progressive articulation of

women’s rights to reproductive autonomy goes unsanctioned. Arguably even more

damaging, however, to the protection of women’s human rights is the ongoing

19

privileging of civil and political rights claims that remains characteristic of the

international system for the protection and promotion of human rights. One of the

core feminist critiques of international human rights law has been its traditional focus

on violations of civil and political rights perpetrated directly by state agents and

overwhelmingly perpetrated against male political actors. Hilary Charlesworth (1993:

8) has thus labelled the traditional catalogue of civil and political rights ‘what men

fear most will happen to them’. The focus of Northern Irish human rights advocacy

on civil and political rights violations during the conflict, namely access to justice, the

state’s use of force, states of legal exception, restrictions on political organising and

the treatment of prisoners (O’Rourke, 2013: 74-5), provides practical empirical

evidence for this sustained conceptual critique. The failure of the local human rights

community in Northern Ireland to monitor or pursue enforcement of CEDAW

recommendations on abortion must also be seen in terms of this hierarchy of civil and

political rights within international human rights law.

The human rights canon has evolved considerably in recent decades to broaden its

concern beyond those typically attached to the male political actor, most notably in

the articulation of due diligence obligations on states to prohibit, prevent and punish

violence perpetrated against women by private actors (Edwards, 2011). Relatedly,

significant human rights developments in state obligations to liberalise access to

abortion have occurred within the mainstream and regional treaty based systems for

the protection of civil and political rights (see generally Zampas and Gher, 2008).

There is recognition of the potential for highly restrictive abortion regimes to

constitute violations of the right to freedom from torture, and cruel, inhuman and

degrading treatment, where the denial of abortion leads to the threshold level of

physical and mental harm (Karen Noelia LLantoy Hauman, 2005). Consistent with

this focus has been the right to life concerns raised by similar circumstances in which

the denial of access to abortion has threatened the life of the pregnant woman.

Further, a related set of procedural obligations have been articulated, most notably by

the European Court of Human Rights, around the need for an effective mechanism to

vindicate rights to abortion where domestic regimes establish limited provision for

lawful abortion (see A. B. and C. v Ireland, 2010: para 249; R.R. v Poland, 2012: para

187; see also Tysiac v Poland, 2007: para 116). Nevertheless, progress secured

through civil and political rights avenues evidence a general reluctance to engage with

20

the substantive issues of gender equality and the right of individual women to control

their reproduction and sexuality. The privileging of civil and political rights within

international human rights law remains a barrier to the robust and comprehensive

recognition of women’s reproductive autonomy under international human rights law.

The global dynamics in the privileging of civil and political rights interface tellingly

with Northern Irish dynamics surrounding the 2013 Draft Guidance for medical

professionals on the lawful termination of pregnancy (Department of Health, 2013a).

The belated attention of the human rights community to issues of potential human

rights non-compliance emerged ultimately not from CEDAW’s continued scrutiny of

abortion law in Northern Ireland. It emerged instead from the Department of Health,

Social Services and Public Safety’s (Department of Health) 2013 Draft Guidance that

was, in human rights terms, a game-changer. It prompted responses from Amnesty

International (2013), the Committee on the Administration of Justice (2013) and the

Northern Ireland Human Rights Commission (2013). With the publication of the 2013

Draft Guidance, it seemed that the Department of Health had succeeded in doing what

several decades of pro-choice advocacy did not: prompting mainstream human rights

advocates to take on the human rights concerns inherent in restrictive access to

abortion in Northern Ireland.

The 2013 Draft Guidance, tellingly entitled ‘The Limited Circumstances for a Lawful

Termination of Pregnancy in Northern Ireland: A Guidance Document for Health and

Social Care Professionals on Law and Clinical Practice’ [emphasis added] was

published by the Department of Health in April of that year. The Draft motivated a

robust response, several more than previous iterations of the Guidance (Department of

Health, 2013b: para 2.4), which was attributed in part to public outcry in the Republic

of Ireland following the death of Savita Halapannavar (see Murray, this issue), but

which was also linked to widespread unhappiness with the threatening and

intimidating tone of the document (Department of Health, 2013b: para 2.13). For

example, the threat of prosecution was reiterated throughout the Draft Guidance,

firstly in relation to the legal duty on health and social care professionals to report any

procedure that is unlawful in Northern Ireland: failure to do so, as the Guidance

reminded the medical professional, risks a maximum of ten years in prison

(Department of Health, 2013a: para 2.13). In addition, anyone convicted of

performing an abortion is liable to criminal prosecution with a maximum penalty of

21

life imprisonment (para 2.6). Anyone convicted of a secondary role is liable to the

same penalty (para 2.13). This is a profoundly threatening legal climate in which to

operate and to seek to vindicate access to lawful abortion. By stating and repeating

these risks of prosecution repeatedly throughout the document, the Department was

doing much to exacerbate, rather than alleviate, the ‘chilling effect’8 of the existing

criminal sanctions for unlawful abortion.

CAJ, the NIHRC and Amnesty International UK’s Belfast Office all made robust

responses to the Department of Heath consultation on the 2013 Draft Guidance. Their

responses focused on European Convention compliance concerns, in particular in

terms of the article 8 (right to private and family life) concerns raised by the absence

of a procedure to deal with differences of opinion between the pregnant woman and

her doctor (NIHRC, 2013a: paras 12-16; CAJ, 2013; AIUK, 2013). Moreover, the

provisions dealing with providing information on access to abortion in other

jurisdictions were framed with insufficient precision to satisfy article 10 (freedom of

expression and information) requirements that restrictions on such rights be

‘foreseeable’ (NIHRC, 2013a: paras 31-33; CAJ, 2013; AIUK, 2013). Importantly, in

particular in light of the silence of previous CEDAW Shadow Reports on the issue of

abortion, the NIHRC’s 2013 Shadow Report to the CEDAW Committee’s periodic

examination of the UK finally addressed potential CEDAW non-compliance due to

the legal regulation of abortion (NIHRC, 2013b: 22-24). These concerns were framed

entirely in terms of the human rights issues presented by the 2013 Draft Guidance.

Thus it was the acute circumstances presented by the 2013 Draft Guidance that finally

prompted the NIHRC to include abortion in their CEDAW Shadow Report. The

shorter response to the Consultation on the 2013 Draft Guidance submitted by CAJ –

and in a much belated adoption of the concerns articulated by the Standing Advisory

Committee on Human Rights two decades earlier – dealt primarily with the absence

of legal certainty in the prevailing law and the failure of the Draft Guidance to redress

this uncertainty. Significantly, the lengthy response by Amnesty International UK’s

Belfast office (Amnesty International, 2013) reiterated and went beyond the civil and

8 The potential for criminal penalties for unlawful abortions to have a ‘chilling effect’ on medical practitioners, even in circumstances in which abortion is lawful, was identified by the European Court of Human Rights in Tysiac v Poland (2007: paras 117-18).

22

political rights concerns articulated by CAJ and the NIHRC, which suggests a positive

‘read-across’ (Bell, 2013: 224) from its international campaign priorities to the

context of Northern Ireland, and an important development in mainstream human

rights framing of abortion in the jurisdiction.

These dynamics provide critical context for understanding the ongoing (at the time of

writing) judicial review brought by the Northern Ireland Human Rights Commission

is seeking a declaration from the Northern Ireland High Court that the criminalisation

of the termination of pregnancy in cases of the serious malformation of the foetus,

rape and incest is incompatible with the UK’s obligations under the European

Convention on Human Rights Article 3 (prohibition on torture, inhuman and

degrading treatment), Article 8 (right to private and family life) and Article 14

(prohibition of discrimination) read with Article 8. This article has characterised the

request for a CEDAW inquiry as an effort to pursue broader cultural change in

Northern Ireland in respect of women’s reproductive rights, in particular by working

in tandem with FPANI’s strategic litigation against the Northern Ireland Department

of Health. The significance of the NIHRC taking on this case without a named victim,

but instead in the exercise of its broad statutory power to ‘bring proceedings involving

law or practice relating to the protection of human rights’ (Northern Ireland Act 1998,

section 69(5)(b)), should not be under-estimated. While considered examination of the

reasons for the NIHRC’s altered approach are beyond the scope of the article,

institutional learning fostered by the Commission’s response to the 2013 Draft

Guidance, combined with changes in key personnel, appear relevant. The litigation

constitutes a sea change in the priorities and operation of the Commission.

International human rights law can be viewed as legal codification of abstract

philosophical principles. But human rights law is also the site and outcome of

contestation over values between multiple state and non-state actors. Viewed in these

latter terms, the feminist critique of human rights law moves from seemingly remote

academic discussion of gendered ‘hierarchies’ and generations of rights (Bunch,

1990; Charlesworth and Chinkin, 2000), to more concrete concerns about the

substance of human rights based mobilisation and documentation. The belated and

highly-selective adoption of a human rights framing in the response of mainstream

human rights NGOs to the civil and political rights violations inherent in the 2013

23

Draft Guidance is a powerful demonstration of the enduring salience of foundational

feminist critiques of human rights.

CONCLUSION

In Northern Ireland, as elsewhere, human rights based claims for women’s greater

reproductive autonomy have greater or lesser weight depending on their fit within

both the prevailing cultural context and broader civil and political rights claims

(Sanger, this issue). In recent years, these dynamics have been most evident in the

failure to mobilise broad-based human rights action in response to the persistent

CEDAW non-compliance arising from the limited abortion services in Northern

Ireland. The difficulties encountered by the feminist movement in Northern Ireland

mirror those encountered within the international human rights movement and system.

Both at national and international levels, the under-enforcement of women’s human

rights, the privileging of civil and political rights, and regressive sub-themes in human

rights advocacy, reveal the embedded gendered shortcomings of the human rights

frame and the cultural possibilities of CEDAW. It remains doubtful that advances in

the recognition of the civil and political rights implications of restrictive abortion

regimes have done much to shift these embedded gendered shortcomings. The

potential for more robust articulation of the human right of women to access abortion

services as a matter of gender equality continues to be under-developed.

Northern Irish pro-choice organisations continue to await the outcome of the request

for a CEDAW inquiry. It seems likely that the decision on the inquiry is contingent on

the outcome of broader questions of CEDAW enforcement, that is the progress made

by the UK government on the Draft Guidance in advance of CEDAW’s one-year

review (CEDAW, 2013: para 68). The CEDAW Committee has itself marked an

important new departure in the consideration of abortion, with its landmark decision

LC v Peru (2011), which emphasizes the article 5 (discriminatory social and cultural

pattern) violation of health systems denying women lawful abortions on the basis of

gender stereotypes (see generally Cook and Cusack, 2009). Experience from the

campaign to recognise violence against women as a human rights violation evidences

the importance of the CEDAW Committee in articulating and advancing subaltern

interpretations of human rights obligations that ultimately penetrate the mainstream

24

human rights system (Edwards, 2011: 168-72). As Merry (2006, 16) observes:

‘Culture is as much present in international human rights conferences and UN

institutions as in local villages (though typically associated only with the latter)’.

Jurisprudential developments by the CEDAW Committee in LC v Peru can foster

broader cultural change within the international human rights system, and could now

usefully be advanced through the inquiry procedure. Nevertheless, the CEDAW

Committee’s apparent reticence to utilize the inquiry procedure is a cause of concern

as to the mechanism’s efficacy for the enhanced protection of women’s rights

guaranteed under CEDAW.

The Optional Protocol entered into force in December 2000. Prior to 2015, the inquiry

procedure was utilized only once by the CEDAW Committee, in the case of grave,

widespread and systematic physical violence against women on the US-Mexico

border (CEDAW, 2005). In 2015, however, there has been much greater public

activity by the Committee under the procedure, with the Committee’s publication of

its inquiry reports concerning the grave and systematic violation of the rights of

indigenous women in Canada (CEDAW, 2015a) and the inaccessibility of

contraceptives to women in the Philippines capital, Manila (CEDAW, 2015b).

Whereas the focus on grave, widespread and systematic violence against women in

the CEDAW Committee’s inquiries in both Mexico and Canada generated some

concern that the procedure’s efficacy to protect the full panoply of women’s rights,

the robust articulation of state obligations to vindicate women’s sexual and

reproductive rights in the Philippines inquiry is a cause for optimism. In addition to

the focus on sexual and reproductive rights, the Philippines inquiry shares some

important features with the inquiry request from Northern Ireland, in particular in the

focus on violations by sub-state entities and in the scrutiny of the de jure and de facto

protection of women’s reproductive rights (CEDAW, 2015b: 3). The CEDAW

Committee’s focus on unlawful abortion in the Philippines inquiry, principally as a

cause of maternal deaths (CEDAW, 2015b: 11, 18), arguably circumscribes the

relevance to the Northern Irish case, however, where unsafe abortions are largely

avoided by the possibility of travel for the procedure to neighbouring states.

Moreover, the CEDAW Committee’s failure to advance the Northern Ireland inquiry

request since its submission in December 2010 means that the local efficacy of the

inquiry initiative must be considered critically.

25

Also informing evaluation of the efficacy of the inquiry request should be the breadth

of third-party interventions in relevant domestic litigation. Similarly to the earlier

FPANI litigation initiated in 2002, SPUC and the Northern Bishops of the Roman

Catholic Church successfully sought leave to intervene, and are supported by the

intervention of the Attorney-General of Northern Ireland, in their position in favour of

the status quo on restricted access to abortion. In marked contrast to the earlier FPANI

litigation, in which there were no pro-choice third-party interventions, the NIHRC has

been supported by separate interventions in favour of its liberalising position from

Alliance for Choice (2015, on file with author), FPANI (2015, on file with author)

and Amnesty International UK (2015a, on file with author). Throughout these

interventions, the CEDAW Convention, and indeed, the submission to the CEDAW

Committee requesting an inquiry, has featured prominently. Likewise, 2015 has also

seen an unsuccessful appeal brought to the decision of the High Court of England and

Wales affirming the requirement that women travelling from Northern Ireland to

Great Britain for an abortion must pay privately for the procedure and cannot avail of

the National Health Service. The unsuccessful appeal had claimed inter alia a

violation of the applicant’s ECHR rights under Article 14 (non-discrimination) read

with Article 8 (private and family life) (A v Secretary of State for Health, 2015). In

the appeal, a third-party intervention from Alliance for Choice drew primarily on the

submission to the CEDAW Committee requesting an inquiry in order to strengthen

the discrimination claim (Alliance for Choice, 2015b, on file with author).

The request for a CEDAW inquiry can be viewed as generally supportive of, and

conducive to, these broader developments, both in the upskilling of pro-choice

advocates to utilize international instruments in support of their advocacy (see

generally Roa and Klugman, 2014) and in starting difficult – initially unsuccessful –

conversations with local human rights organisations. Moreover, the broad-based

nature of the current litigation offers a promising contrast with the cultural and legal

tapestry of the FPANI’s legal challenge to the Department of Health initiated in 2002.

The utilization of CEDAW to support domestic litigation strategies suggests a

tentative coming together of advocacy for both cultural and legal change. In a

jurisdiction so obstinately resistant to reform on abortion, these green shoots of

change must be acknowledged and celebrated.

26

Cases Cited

A v Secretary of State for Health, [2015] WLR (D) 335

A. B. and C. v Ireland, Appl. No. 25579/05, European Court of Human Rights, 16 December 2010.

Down Lisburn Health and Social Services Board v CH and LAH, (Unreported), High Court (Family Division), 18 October 1995.

In the Matter of an Application by the Family Planning Association of Northern Ireland for Judicial Review [2003] NIQB 48.

In re White [2000] NI 432

Karen Noelia LLantoy Hauman v. Peru [2005] CCPR/C/85/D/1153/2003.

LC v Peru [2011] CEDAW/C/50/D/22/2009.

Northern Health and Social Services Board v A and others [1994] NIJB 1.

Northern Health and Social Services Board v F and G, [1993] NILR 268.

Open Door and Dublin Well Woman v. Ireland, Appl. No. 14234/88), European Court of Human Rights, 29 October 1992.

R v Bourne [1938] 3 All ER 615.

R.R. v Poland, Appl. No. 27617/04, European Court of Human Rights, 26 May 2011.

Society for the Protection of Unborn Children, Re Judicial Review [2009] NIQB 92.

The Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety and others [2004] NICA 37.

Tysiac v Poland, Appl. No. 5410/03, European Court of Human Rights, 20 March 2007.

Western Health and Social Services Board v CMB, (Unreported), High Court (Family Division), 29 September 1995.

References

Reports

Alliance Party Northern Ireland (2013) Alliance says Criminal Justice Bill amendment is not about abortion debate. Press Release, 4 March. Belfast: APNI.

Amnesty International UK (2013) Guidance on Termination of Pregnancy in Northern Ireland. Submission to the Northern Ireland Department of Health, Social Services and Public Safety. Belfast: AIUK.

27

Amnesty International UK (2012) Annual Report. London: AIUK.

Amnesty International (2007) Global Position on Abortion. London: Amnesty International.

Committee on the Administration of Justice (2008) Committee on the Administration of Justice’s submission to the UN Committee on the Elimination of all forms of Discrimination against Women. Belfast: CAJ.

Committee on the Administration of Justice (2013a) Committee on the Administration of Justice’s submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women on the UK’s 7th Periodic Report. Report, Belfast, Northern Ireland, June.

Committee on the Administration of Justice (2013b) CAJ’s response to the consultation on the Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland, Submission no. S416, July 2013.

CEDAW (2005) Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico, C/2005/OP.8/MEXICO, 27 January.

CEDAW (2013) Concluding Observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland. CEDAW/C/GBR/CO/7, 30 July.

CEDAW (2015a) Report on Canada produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Canada, CEDAW/C/OP.8/CAN/1, 6 March.

CEDAW (2015b) Summary Report on Philippines by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Philippines, CEDAW/C/OP.8/PHL/1, 22 April.

Democratic Unionist Party (2014) European and Local Manifesto. Belfast: Democratic Unionist Party.

Department of Health, Northern Ireland Executive (2008) Consultation on Guidance on the Termination of Pregnancy. Belfast: Department of Health Social Services and Public Safety.

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Department of Health (2013a) The Limited Circumstances For A Lawful Termination Of Pregnancy In Northern Ireland: A Guidance Document For Health And Social Care Professionals On Law And Clinical Practice. Draft, April. Belfast: Department of Health Social Services and Public Safety.

28

Department of Health (2013b) Draft Termination of Pregnancy Guide. Summary of Consultation Response Received, Belfast, 13 October.

Green Party Northern Ireland (2013) Green MLA calls for referendum on access to abortion in Northern Ireland. Press Release, 11 March. Belfast: GPNI.

Irish Human Rights Commission (2004) Submission of the Irish Human Rights Commission to the UN Committee on the Elimination of Discrimination Against Women in respect of Ireland’s Combined 4th and 5 th Periodic Reports under the Convention on the Elimination of All Forms of Discrimination Against Women. Dublin: IHRC.

Irish Human Rights Commission (2008) Submission to the Irish Government in preparation of Ireland's 6th periodic report to the UN CEDAW Committee. Dublin: IHRC.

Northern Ireland Human Rights Commission (2008) A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland. 10 December. Belfast: NIHRC.

Northern Ireland Human Rights Commission (2013a) Response to they Public Consultation on the Draft Guidance on Termination of Pregnancy in Northern Ireland. Belfast: NIHRC.

Northern Ireland Human Rights Commission (2013b) Parallel Report on the 7th Periodic Report of the United Kingdom of Great Britain and Northern Ireland under the Convention on the Elimination of all Forms of Discrimination against Women. Report to the UN CEDAW Committee, June. Belfast: NIHRC.

Sinn Féin (2007) Sinn Féin supports Assembly debate on abortion. Press Release, 22 October. Belfast: Sinn Féin.

Social Democratic and Labour Party (2014) McKinney: SDLP position on abortion is clear; Sinn Fein’s is not. Press Release, 19 April. Belfast: SDLP.

Standing Advisory Committee on Human Rights (1993) Abortion Law in Northern Ireland: The Twilight Zone. Belfast: SACHR.

Ulster Unionist Party (2013) Nesbitt welcomes news of consultation on abortion law. Press Release, 5 December. Belfast: UUP.

Books and Articles

Bell C and Keenan J (2004) Human Rights Nongovernmental Organizations and the Problems of Transition. Human Rights Quarterly, 26, 330-374.

Bell C (2013) Power-sharing and human rights law. The InternationalJournal of Human Rights 17(2): 204-237.

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News Articles

McDonald H (2007) Amnesty faces ban in Northern Ireland's Catholic schools. The Guardian, 18 September.

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