We are pleased to welcome this guest post from Dr Catherine O’Rourke. Catherine is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute and School of Law. She was one of the authors of the submission to the CEDAW Committee requesting an inquiry into abortion law in Northern Ireland.
Despite legal advances in human rights, the international framework is limited in its capacity to unite local groups around pro-choice advocacy in Northern Ireland.
International human rights law has evolved considerably in recent years to articulate obligations on states to liberalise restrictive abortion laws. The monitoring committee of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has played an important role in placing women’s rights and equality at the centre of such developments. As one of the weaker human rights treaties from an enforcement perspective, CEDAW is often most celebrated for the important cultural work that it does in framing locally-contested or marginalised issues, such as gender-based violence or women’s reproductive health, as subjects of international human rights law. My recently-published article – ‘Advocating Abortion Rights in Northern Ireland: Local and Global Tensions’ – examines this thesis in respect of an effort from pro-choice groups to utilise CEDAW to advance abortion rights in the jurisdiction.
Strategic litigation to enhance access to abortion in Northern Ireland has, until the very recent activities of the Northern Ireland Human Rights Commission, been limited. Moreover, such litigation formerly focused on the pursuit of formal guidance to medical practitioners from the Department of Health on the circumstances for lawful abortion in the jurisdiction, rather than the pursuit of broader rights-based change to the law. While this incremental approach has, after several years, yielded some modest progress, ongoing concerns about the substance of the law – and the need to articulate rights-based challenges to the status quo – has underpinned broader pro-choice advocacy. In terms of utilising international human rights law, the pursuit of rights-based cultural and legal change manifested in a joint request from Alliance for Choice, the Family Planning Association Northern Ireland and the Northern Ireland Women’s European Platform in December 2010 to the Committee on the Elimination of All Forms of Discrimination Against Women to conduct an inquiry into access to abortion in Northern Ireland.
The turn to CEDAW was motivated by a number of linked factors that the article documents more fully. Most notably, the CEDAW Committee has exercised considerable scrutiny over access to abortion in Northern Ireland, raising its concern about non-compliance with the UK in repeated periodic state examinations. Further, in legal terms, with the UK as a party to the Optional Protocol to CEDAW, the option to request an inquiry into potential ‘grave or systematic violation’ of the Convention was open to civil society. This avenue posed few legal or resource-based obstacles, as anyone can make such a request and the costs associated with litigation do not exist for requesting an inquiry under the Optional Protocol. In political and advocacy terms, the three civil society organisations acting together to request the inquiry constituted a new and important form of coalition-building towards a clear and defined objective, namely compiling the lengthy submission to convince the Committee that the situation merited an inquiry. The legal, resource-based and political advantages of pursuing the inquiry procedure offer learning to rights-based pro-choice advocacy elsewhere.
Human rights advocacy has always been a contested activity in Northern Ireland, linked to the conduct of political violence in the jurisdiction. Efforts to hold the state account for its conduct of a conflict defined by competing positions on the legitimacy of the state inevitably brought accusations of selectivity and partiality. The resulting narrow and partial terms of engagement on human rights advocacy in the jurisdiction has been most apparent in respect of widespread silence on women’s reproductive rights. As the article charts more fully, the position of human rights organisations in Northern Ireland on the issue of abortion – even in the face of repeated articulated concerns by the CEDAW Committee – was silence. The civil society initiative to request an inquiry from the CEDAW Committee remained hampered by this historical silence, as none of the mainstream human rights NGOs formally supported the initiative in 2010. Here we see the cultural limitations of both CEDAW and human rights framing more broadly.
Recent times have brought important changes to the advocacy position of human rights NGOs in Northern Ireland, demonstrated in particular by their robust response to the manifold threatened civil and political rights violations contained in the 2013 draft guidance to medical practitioners on access to abortion. Moreover, current strategic litigation led by the Northern Ireland Human Rights Commission was unthinkable in light of the formerly prevailing silence of the Commission on access to abortion. The article concludes by reflecting on the civil and political human rights framing that has underpinned these developments in local human rights advocacy, and how they are to be distinguished from the women’s rights framing of the CEDAW Convention and Committee. The article concludes that the international human rights framework remains hampered by structural limitations that privilege the civil and political rights of male political actors. Moreover, the international human rights framework is mediated and mitigated through local human rights advocacy, which can create space for more regressive gendered sub-themes to prevail.
Catherine O’Rourke, ‘Advocating Abortion Rights in Northern Ireland: Local and Global Tensions’ Social and Legal Studies 2016, Vol. 25(6) 716–740, is part of a Special Issue on comparative perspectives on abortion law reform. It is available open access at: http://journals.sagepub.com/doi/pdf/10.1177/0964663916668249