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Published online by Cambridge University Press: 21 March 2019
On 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.
The authors would like to thank an anonymous reviewer for helpful feedback on a previous version of this article. The authors are also grateful to the members of the Judicial Studies Institute, Masaryk University for their very helpful comments: Adam Blisa, David Kosař, Madalina Moraru, Jan Petrov, Katarína Šipulová, Hubert Smekal, Samuel Spáč, Nino Tsereteli, Tereza Papoušková and Marína Urbániková.
1 The applicable law is sections 58 and 59 of the Offences Against the Person Act 1861, and section 25(1) of the Criminal Justice Act (NI) 1945. The Abortion Act 1967 does not extend to Northern Ireland.
2 FFA is where the fetus is likely to die before birth or shortly after, whereas serious fetal abnormality is an abnormality which is serious but not immediately life threatening per se.
3 Thomson, J, ‘Explaining Gender Equality Difference in a Devolved System: The Case of Abortion Law in Northern Ireland’ (2016) 11(3) Politics, Languages & International Studies 371Google Scholar.
4 In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27. (Hereafter NIHRC case)
5 In 2017 the UKSCt considered whether funding for travel for abortion services should be provided to women in Northern Ireland, R (on the application of A and B) v Secretary of State for Health  UKSC 41.
6 A declaration of incompatibility was sought under section 4 of the Human Rights Act 1998.
7 Although the appropriateness of making obiter comments of this nature may be questioned, this issue is outside the scope of this article.
8 Lady Black agreed with this holding in cases of FFA.
9 Lord Mance, Hale, and Lord Kerr (with whom Lord Wilson agreed). Lord Reed (with whom Lord Lloyd Jones agreed) did not find any violations of art 8 and instead would leave this as an issue for Parliament. Lady Black agreed with Lord Reed in cases other than FFA.
10 Lord Reed and Lord Lloyd-Jones held that the law is not incompatible with either art 8 or art 3.
11 NIHRC case (n 4) Lady Hale, para 5; Lord Mance, para 101; Lord Kerr (with whom Lord Wilson agreed), para 328. The UK is a party to the following treaties which were relevant to the subject matter before the UKSCt: Convention against Torture 1465 UNTS 85 (adopted 10 December 1984, entered into force 26 June 1987); International Covenant on Economic, Social, and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976; International Covenant on Civil and Political Rights 999 UNTS 171 (adopted 16 December 1966, entered into force 23 March 1976; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; Convention on the Elimination of all Forms of Discrimination against Women 1249 UNTS 13 (adopted 18 December 1979, entered into force 3 September 1981); Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (adopted 24 January 2007; entered into force 3 May 2008).
12 The HRC is an international committee of independent experts that monitors the implementation of the ICCPR by its States Parties. It can receive communications from individuals against States Parties to the First Optional Protocol (pursuant to Art 1 of Optional Protocol 1) and the HRC can forward its ‘views’ to the State Party concerned and to the individual. These views are not binding. However, as the members of the HRC are experts in international law, and as they are interpreting the ICCPR itself, their views are highly persuasive and are seen as authoritative interpretations of the ICCPR. Art 38(1)(d) of the Statute of the International Court of Justice also provides that the views of experts are a subsidiary source of international law. Charter of the United Nations and Statute of the International Court of Justice 33 UNTS 933 (adopted 18 April 1946, entered into force 24 October 1965). ‘Promotion and Protection of Human Rights’ in R Higgins, P Webb, D Akande, S Sivakumaran, and J Sloan, Oppenheim's International Law: United Nations (Oxford University Press 2017) 848.
13 In October 2018, Sarah Ewart whose pregnancy had involved a diagnosis of FFA and who had to travel to England for an abortion, was granted leave to apply for judicial review seeking a declaration of incompatibly of Northern Irish law with art 8 ECHR for failing to provide access to abortion. We await the hearing and outcome of this case at the time of writing (25 January 2019). As her case is focusing only on art 8, not art 3 we will not examine this in detail. However, our arguments should encourage future cases to use both art 8 and art 3 to ground such challenges. See generally: ‘Abortion law: Sarah Ewart Wins Right to Challenge NI Law’ BBC News (24 October 2018) <https://www.bbc.com/news/uk-northern-ireland-45966635>.
14 See section III.
15 Ministry for Justice, ‘Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government's Response to Human Rights Judgments 2016–17’ (2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/669449/responding__to_human_rights_judgments_2016-17-print.pdf> 4–5.
16 ‘UK Government Calls for Northern Ireland to Consider Abortion Reforms’ RTÉ News (2018) <https://www.rte.ie/news/uk/2018/0605/968195-oapa/>. A last resort would be to encourage the UK Parliament to repeal relevant sections of the OAPA. This would make abortion illegal and force the Northern Ireland Assembly to act. See P Hosford, ‘How Long Must Women in Northern Ireland Wait for Change? – UK MPs Debate Abortion Laws’ The Journal (2018) <https://www.thejournal.ie/uk-debate-abortion-northern-ireland-4053119-Jun2018/>.
17 NIHRC case (n 4), para 330.
18 Zureick, A, ‘(En)gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman, or Degrading Treatment’ (2015) 38(1) FordhamIntLJ 99Google Scholar; K McNeilly, C Pierson, and F Bloomer ‘Moving Forward From Judicial Review on Abortion in Situations of Fatal Foetal Abnormality and Sexual Crime: The Experience of Health Professionals’ (Queen's University Belfast 2016) <https://pure.qub.ac.uk/portal/files/127528554/HealthcareProfessionalsRoundtableReport_090916.pdf> 6; S Singh, L Remez, G Sedgh, L Kwok and T Onda, ‘Abortion Worldwide 2017: Uneven Progress and Unequal Access’ (Guttmacher Institute, 2017) <https://www.guttmacher.org/sites/default/files/report_pdf/abortion-worldwide-2017.pdf>; F Bloomer and L Hoggart, ‘Abortion Policy – Challenges and Opportunities’ (Northern Ireland Assembly Knowledge Exchange Seminar Series Briefing Paper, 2016) <http://www.niassembly.gov.uk/globalassets/documents/raise/knowledge_exchange/briefing_papers/series5/dr-bloomer-and-dr-hoggart-version-2.pdf>
19 Thomson, J Jarvis, ‘A Defence of Abortion’ (1971) 1 Philosophy and Public Affairs 47Google Scholar; Jackson, E, ‘Abortion, Autonomy and Prenatal Diagnosis’ (2000) 9(4) Social and Legal Studies 467CrossRefGoogle Scholar; Jackson, E, ’Abortion: Medical Paternalism or Patient Autonomy?’ in Lee, E (ed), Abortion: Whose Right? Debating Matters (Hodder and Stoughton 2002)Google Scholar; Sheldon, S, ‘The Decriminalisation of Abortion: An Argument for Modernisation’ (2016) 36(2) OJLS 334CrossRefGoogle Scholar.
21 Cohen, IG, ‘Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a SpeciaAre all Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Specia (2015) 43(1) Journal of Medical Ethics 87CrossRefGoogle Scholar; Sheldon, S and Wilkinson, S, ‘Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Special Exemption in Law?’ (2001) 9 Medical Law Review 85CrossRefGoogle Scholar.
22 Zureick (n 18).
23 Singh et al. (n 18) 28–33.
24 Abortion is a criminal offence in Northern Ireland under sections 58 and 59 of the Offences Against the Person Act 1861, punishable by up to life imprisonment. Women procuring an abortion and those who assist them are potentially criminally responsible.
25 McNeilly et al. (n 18); Bloomer and Hoggart (n 18).
26 UN Committee on the Elimination of all Forms of Discrimination Against Women, ‘Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under Art 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ (2017) UN Doc CEDAW/C/OP.8/GBR/1; Council of Europe, Commissioner for Human Rights, ‘Issue Paper: Women's Sexual and Reproductive Health and Rights in Europe’ (2017) <https://rm.coe.int/women-s-sexual-and-reproductive-health-and-rights-in-europe-issue-pape/168076dead>; Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, ‘Report following his visit to Ireland 22–25 November 2016’ (2017) <https://www.refworld.org/docid/594909c54.html> para 91.
27 De Londras, F and Enright, M, Repealing the 8th: Reforming Irish Abortion Law (Policy Press 2018) Ch 2CrossRefGoogle Scholar; de Londras, F, ‘Fatal Fetal Abnormality, Irish Constitutional Law and Mellet v Ireland’ (2016) 24(4) Medical Law Review 591Google Scholar, 595; Schweppe, J and Spain, E, ‘When is a Foetus Not an Unborn? Fatal Foetal Abnormalities and Article 40.3.3’ (2013) 3(3) Irish Journal of Legal Studies 92Google Scholar; E Barrington, ‘Submission to Citizens’ Assembly, Article 40.3.3 of the Constitution and Fatal Foetal Abnormalities’ (2017) <https://www.citizensassembly.ie/en/Meetings/Eileen-Barrington-Paper.pdf> para 3.3.
28 See comments of Prof R Halperin-Kaddari in ‘UK Violates Women's Rights in Northern Ireland by Unduly Restricting Access to Abortion – UN Experts’ UN Office of the High Commissioner for Human Rights <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22693&LangID=E>.
29 NIHRC case (n 4), Lord Kerr (with whom Lord Wilson agreed), para 237.
31 Vo v France App No 53924/00 (ECHR, 8 July 2004). See also: Paton v United Kingdom App No 8418/78 (ECHR, 13 May 1980); RH v Norway (Admissibility) App No.17004/90 (ECHR 19 May 1992); Boso v Italy App No 50490/99 (ECHR 5 September 2002); Palmer, S, ‘Abortion and Human Rights’ (2014) 4 EHRLR 596Google Scholar; Scott, R, ‘The English Fetus and the Right to Life’ (2004) 11(4) EJHL 347CrossRefGoogle Scholar.
32 Art 8(2) provides that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
33 NIHRC case (n 4), Lady Hale, para 19.
44 ibid, Lord Mance, Hale, and Lord Kerr (with whom Lord Wilson agreed). Lord Reed with whom Lord Lloyd Jones agreed did not find any violations of art 8 and instead would leave this as an issue for parliament. Lady Black agreed with Lord Reed in cases outside of fatal fetal abnormality.
46 See A, B and C v Ireland App No 25579/05 (ECHR, 16 December 2010).
47 Nigro, R, ‘The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil’ (2010) 11 Human Rights Review 531CrossRefGoogle Scholar; Agha, P (ed), Human Rights Between Law and Politics (Hart 2017)Google Scholar; McGoldrick, D, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’ (2016) 65(1) ICLQ 21CrossRefGoogle Scholar; Spielmann, D, ‘Whither the Margin of Appreciation?’ (2014) 67(1) Current Legal Problems 49CrossRefGoogle Scholar.
48 Handyside v United Kingdom App No 5493/72 (ECHR, 7 December 1976) para 48.
49 A, B and C v Ireland (n 46) para 22.
50 Foster, S, ‘Case Comment: In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review’ (2018) 23(1) CovLJ 117Google Scholar; A Davies, ‘The UKSCt Decision on Abortion in Northern Ireland: A Pyrrhic Defeat?’ Oxford Human Rights Hub <http://ohrh.law.ox.ac.uk/the-uk-supreme-court-decision-on-abortion-in-northern-ireland-a-pyrrhic-defeat/>.
51 See In re G (Adoption: Unmarried Couple)  3 WLR 76, para 31 and paras 37–38; more generally, Commissioner of Police of the Metropolis v DSD and Anor  UKSC 11; see also Bjorge, E, ‘National Supreme Courts and the Development of ECHR Rights’ (2011) 9(1) I-CON 5–31Google Scholar, 15–20; and Foster (n 50) 121.
52 JH Gerards, The European Court of Human Rights and the National Courts: Giving Shape to the Notion of ‘Shared Responsibility’ in JH Gerards and JWA Fleuren (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis (Intersentia 2014) 31, 32.
53 Committee on Economic, Social and Cultural Rights ‘Concluding Observations on the Third Periodic Report of Ireland’ (2011) UN Doc CEDAW/C/50/D/22/2009; LC v Peru Comm No. 22/2009 (Committee on the Elimination of all Forms of Discrimination against Women, 4 November 2011); Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Third Periodic Report of Ireland’ (2015) UN Doc E/C.12/IRL/CO/3; Committee on the Elimination of All Forms of Discrimination against Women, Concluding Observations on the 6th and 7th Periodic Reports of Ireland’ (2017) UN Doc CEDAW/C/IRL/CO/6-7; Zampas, C and Gher, JM, ‘Abortion as a Human Right – International and Regional Standards’ (2008) 8(2) HRLR 249Google Scholar. See also A McMahon and B Ní Ghráinne, ‘After the 8th: Ireland, Abortion, and International Law’ Medico-Legal Journal of Ireland (forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256317>; and views of Lord Mance, NIHRC case (n 4), paras 118–121.
54 Kudła v Poland App No 30210/96 (ECHR, 26 October 2000) para 91.
57 Tyrer v The United Kingdom App No 5856/72 (ECHR, 15 March 1978) para 32.
58 For discussion of the general position of the nature of art 3 and Greer's contrary position, see Greer, S, ‘Is the Prohibition Against Torture, Cruel, Inhuman and Degrading Treatment Really “Absolute” in International Human Rights Law? A Reply to Graffin and Mavronicola’ (2018) 18(2) HRLR 297Google Scholar and the literature cited therein.
59 Art 15(1) ECHR.
60 Ireland v United Kingdom App no 5319/71 (ECHR, 1 January 1978).
61 See n 13; a current challenge to NI abortion law is underway based on art 8, however, future cases could also be mounted based on art 3.
62 NIHRC case (n 4): Lady Hale para 34; Lord Mance para 102; Lady Black agreed with Lord Mance at para 367.
76 She referred to the ‘double invasion’ of the autonomy of a woman who did not consent to becoming pregnant, nor to the act of intercourse which made her pregnant. She also noted that pregnancies as a result of rape and incest were ‘situations in which the autonomy rights of the pregnant woman should prevail over the community's interest in the continuation of the pregnancy’. NIHRC case, para 25.
77 Committee on the Elimination of all Forms of Discrimination against Women (n 26).
78 NIHRC case, para 27.
79 The CEDAW committee referred to the prohibition of cruel, inhuman, and degrading treatment as set out in the ICCPR, as noted in Section V, this prohibition mirrors art 3 ECHR.
80 Such as Ireland v. United Kingdom App No 5310/71 (ECHR, 1 January 1978); Aydin v Turkey App No 23178/94 (ECHR. 25 September 1997); Dȋkme v Turkey App No 20869/92 (ECHR, 11 July 2000); Selmouni v. France App No 25803/94 (ECHR, 28 July, 1999); Soering v The United Kingdom App No 14038/88 (ECHR, 7 July 1989).
81 NIHRC case, para 74.
83 P and S v Poland App No 57375/08 (ECHR, 30 October 2012).
84 RR v Poland App No 27617/04 (ECHR, 26 May 2011).
85 NIHRC case, para 97.
86 The use of the concept of vulnerability is not without its problems. However, a detailed discussion is outside of the scope of this article. See Peroni, L and Timmer, A, ‘Vulnerable groups: The promise of an emerging concept in European Human Rights Convention Law’ (2013) 11(4) ICON 1056Google Scholar.
87 P and S v Poland (n 83).
88 RR v Poland (n 84) para 159.
90 NIHRC case, para 255.
91 Human Rights Committee, Amanda Jane Mellet v Ireland (2016) UN Doc CCPR/C/116/D/2324/2013, para 5.4.
92 NIHRC case, para 100.
95 Vilvarajah v the United Kingdom App No 13163/87 (ECHR, 30 October 1991).
96 NIHRC case, para 328. Unincorporated treaties refer to treaties to which the UK is a party but which have not yet been implemented into domestic law.
97 Art 31(3)(c), Vienna Convention on the Law of Treaties 1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980).
98 Py v France App No 66289/01 (ECHR, 1 November 2005); TH and SH v Finland App No 19823/92 (ECHR, 9 February 1993); Kurt v Turkey App No 15/1997/799/1002 (ECHR, 25 May 1998); Mamatkulov and Abdurasulovic v Turkey App Nos 46827/99, 46951/99 (ECHR, 6 February 2003); Mamatkulov and Askarov v Turkey App Nos 46827/99, 46951/99 (ECHR, 4 February 2005).
99 See n 11.
100 Office of the High Commissioner for Human Rights, ‘Ratification of 18 International Human Rights Treaties’ <http://indicators.ohchr.org>.
101 Art 27, Vienna Convention on the Law of Treaties 1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980).
102 The UK is a party to these treaties because they have ratified and/or acceded to them. This means that under international law, the UK is responsible for violations of these treaties. However, in order for the treaties to be binding domestically (ie invoked as binding law before a court), they must be transposed into domestic law by a domestic implementing legislative act. None of these six treaties have been transposed in such a manner. Therefore in a domestic court, these treaties are of persuasive authority only.
103 The ICCPR and the views of the HRC were cited by Lord Kerr (with whom Lord Wilson agreed), NIHRC case (n 4), para 229 when listing the arguments made by the applicant. However, in para 230, he stated that it was unnecessary for him to discuss international law in light of his views that Northern Ireland's law was in violation of the HRC. He noted that it was ‘sufficient to record that the conclusion that the current law in Northern Ireland on abortion, as it affects fatal foetal abnormality and pregnancy as a result of rape and incest is incompatible with the Convention, is in harmony with many [provisions of international law]’. He also noted that he expressed no views on the views of the HRC because ‘the status of those decisions and their relevance in domestic proceedings such as these are far from straightforward subjects’. Lord Mance referred to the ICCPR and the views of the HRC in para 101, but (incorrectly, in our view) stated that they were not applicable to the present case in para 102. This issue is analysed in more detail below.
104 Art 31(3)(c), Vienna Convention on the Law of Treaties 1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980).
105 Preambles to the ECHR and ICCPR.
107 NIHRC case (n 4) para 102.
108 Human Rights Committee, General Comment 33, ‘Obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights’ (2009) UN Doc CCPR/C/GC/33 para 14.
111 Art 28, International Covenant on Civil and Political Rights 999 UNTS 171 (adopted 16 December 1966, entered into force 23 March 1976.
112 Office of the High Commissioner for Human Rights, ‘Human Rights Committee: Membership’ <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Membership.aspx>. Art 38(1)(d), Charter of the United Nations and Statute of the International Court of Justice 33 UNTS 933 (adopted 18 April 1946, entered into force 24 October 1965).
113 Py v France App No 66289/01 (ECHR, 1 November 2005); TH and SH v Finland App No 19823/92 (ECHR, 9 February 1993); Kurt v Turkey App No 15/1997/799/1002 (ECHR, 25 May 1998); Mamatkulov and Abdurasulovic v Turkey App Nos 46827/99, 46951/99 (ECHR, 6 February 2003); Mamatkulov and Askarov v Turkey App Nos 46827/99, 46951/99 (ECHR, 4 February 2005).
114 Complaints can be brought to the HRC against State Parties to First Optional Protocol of the ICCPR. The UK is not a party to this protocol. However, the views of the HRC should be viewed as persuasive because they are authoritative interpretations of the ICCPR, to which the UK is bound.
115 Mellet v Ireland (n 91).
116 HRC, Siobhán Whelan v Ireland (2017) UN Doc CCPR/C/119/D/2425/2014.
117 Section 11 of the Health (Regulation of Termination of Pregnancy) Act 2018 adopted on 20 December 2018, which commenced on 1 January 2019 now allows for abortion in cases of FFA in the Republic of Ireland.
118 The law was previously governed by art 40.3.3 of the Constitution, which was repealed on 25th May 2018. Art 40.3.3 acted as a general prohibition on abortion other than where the life of the mother was at risk. It stated that: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ The Protection of Life During Pregnancy Act 2013 was also applicable which set out limited exceptions to the general prohibition on abortion and did not provide for abortion access in cases of FFA. This legislation was repealed by the newly adopted Health (Regulation of Termination of Pregnancy) Act 2018.
119 This article provides that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’
120 This article provides that ‘(i) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (ii) Everyone has the right to the protection of the law against such interference or attacks.’
121 This article provides that ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
122 NIHRC case (n 4) para 102.
126 For a discussion of this referendum see McMahon and Ní Ghráinne (n 53).
127 Committee on the Elimination of all Forms of Discrimination against Women (n 26).
128 K McNeilly, F Bloomer and C Pierson, ‘The Supreme Court's Decision on Northern Ireland's Abortion Law – What Now?’ <http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law>.
129 See note 13, a case challenging the law under art 8 ECHR is currently in progress.
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