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Abortion

Expert Legal Opinion proves UK Government wrong to claim it has legal duty under CEDAW Convention to enforce NI abortion regulations

5 June 2020

During Urgent Questions in the House of Commons on Thursday 4 June, the UK Government claimed it had a legal duty under the CEDAW convention to push ahead with the vote on the Northern Ireland abortion regulations.

The problem with this claim is simple: it's not true.

Below you will be able to read a legal opinion by Mark Hill QC which makes it very clear that there is no legal duty under CEDAW for the UK Government to impose the abortion regulations.

IN THE MAT­TER OF THE UNITED NATIONS COM­MIT­TEE ON THE ELIM­IN­A­TION OF DIS­CRIM­IN­A­TION AGAINST WOMEN (CEDAW)

_______________________________________________________________________

OPINION - Mark Hill QC

_______________________________________________________________________

1. I am asked to advise upon the status of a report of the United Nations Committee on the Elimination of Discrimination Against Women (hereafter “the Committee”), concerning an inquiry into claimed violations of the Convention on the Elimination of All Forms of Discrimination Against Women (hereafter “CEDAW”). I am asked to give particular regard to the report’s status, and the competence and jurisdiction of the Committee as a matter of international law. I understand that a group of parliamentarians, headed by Stella Creasy MP, have written to the Secretary of State for the Home Department, Amber Rudd MP, in her additional capacity as Minister for Women and Equalities, enjoining her to commit to legislating for equal access to abortion for all citizens in Northern Ireland and that the CEDAW Report has been cited a one of the main justifications for doing so.

2. The issue of criminalisation of abortion in Northern Ireland is currently the subject of proceedings in the United Kingdom Supreme Court in In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (UKSC 2017/0131). Oral argument took place in October 2017 and judgment is awaited.

Lack of com­pet­ence and jurisdiction

3. For the reasons given below, the invitation to the Home Secretary to treat the content of the Committee’s report as authoritative and determinative of the complex issues involved in the specific case of Northern Ireland is flawed. The report is based upon a misapprehension as to the status of the Committee and its competence to make declaratory determinations, still less juridical rulings regarding CEDAW which States parties are obliged to follow.

4. The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW. The interpretative function under the CEDAW is reserved, not to Committee, but to the International Court of Justice. See Article 29.

Article 29[1]

1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.
Article 29

5. Under the Optional Protocol to CEDAW, the United Kingdom has agreed to co-operate with the Committee if the Committee initiates an inquiry after having received reliable information indicating grave or systematic violations of the rights in CEDAW in the United Kingdom.[2] In considering whether the foregoing threshold has been met, the Committee is entitled to take a view as to what constitutes a violation of CEDAW obligations. But it must do so in accordance with the ordinary rules of interpretation set out in the Vienna Convention on the Law of Treaties. The Committee’s views are not binding interpretations of the law, nor do they contribute to customary international law when approaching the interpretation of these rights.

6. In initiating the present inquiry, and in coming to its conclusions and recommendations, the Committee has instead chosen to rely on its own interpretation of CEDAW. In consequence it initiated an inquiry (and published a report) when it was not properly open to the Committee to do so under its own terms of reference. Further it purported to make an interpretation which, at best, can amount to nothing more than an opinion, but at worst, for the reasons appearing below, is demonstrably wrong.

7. The text of international treaties such as CEDAW are carefully crafted expressions of intent and belief. There is no reference to abortion in the text of CEDAW. There is nothing in the text of CEDAW which requires a state party to allow abortion on specified grounds and/or decriminalise abortion generally. The absence of such a provision in the formal text gives a clear indication that no such obligation exists. The International Court of Justice has not interpreted CEDAW in a manner which departs from the plain wording of the text so as to require a right to abortion or the decriminalisation of abortion to be “read in”.

8. The lack of a right to abortion in any international treaty was noted by the United Kingdom Supreme Court in R (A and B) v Secretary of State for Health [2017] 1 WLR 2492 per Lord Wilson at [35], with whom Lord Reed and Lord Hughes agreed:

The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight: see Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270, para 23, Lord Bingham of Cornhill.

9. Nevertheless, the Committee, “based on its expertise in interpreting [the Convention]”,[3] recommends that abortion be decriminalised in all cases and asserts that “States parties are obligated not to penalise women resorting to, or those providing such services [abortion]”. The Committee is not a judicial body, no source is given for its claimed ‘expertise in interpreting’ in CEDAW, and even if it were to possess some expertise or experience in this regard, it lacks the jurisdiction to interpret CEDAW, this being a matter expressly reserved to the International Court of Justice. That it may in the past have arrogated to itself an interpretative function beyond that granted to it cannot create such a power.

10. The Committee purports to interpret the CEDAW as requiring ‘States parties to legalise abortion, at least in cases of rape, incest, threats to the life and/or health (physical and mental) of the woman, or severe foetal impairment’. This is derived from the Committee’s own General Recommendations and from its views on individual communications under the Optional Protocol. In none of these source documents is there an analysis of how these “obligations” have come about given the text of the Convention and, in particular, within articles 2, 5, 12 and 16, on which the Committee principally relies. The Committee might well wish such “obligations” to be present, but the States who agreed CEDAW and are signatories to it chose not to insert such terms.

Flawed inter­pret­a­tion

11. Article 12 of CEDAW (read with Articles 1, 2, 5, 14 and 16) is said by the Committee to constitute the “legal underpinnings of the Committee’s jurisprudence in this area”.[4] It reads:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Article 12

12. The Committee seems to treat “health care” as necessarily including all forms of termination of pregnancy whatever the motivation. It makes no differentiation in cases, for example, when the abortion may be for family planning purposes or on account of any other form of subjective selectivity.[5] Whilst “family planning” is expressly brought within the definition of “health care” for the purposes of Article 12, it is instructive to note that abortion is not.

13. The seemingly expansive interpretation taken by the Committee is not supported by an analysis of State action in other international agreements. When the Programme of Action of the International Conference on Population and Development referred to family planning, a significant number of reservations were made which noted that the concept of family planning did not include abortion. The Programme of Action declared that:

Governments should take appropriate steps to help women avoid abortion, which in no case should be promoted as a method of family planning. [7.24]

14. This makes it clear, first and foremost, that the international consensus is that States can legitimately outlaw abortion. Secondly, it was agreed that abortion cannot be promoted as a method of family planning. Therefore the suggestion in the Report that these same States would have considered abortion to be ‘related to family planning’ for the purposes of Article 12 of CEDAW is misplaced.

15. In the absence of a specific reference to abortion in the definition of “healthcare” in Article 12, given the specific inclusion of family planning, it must be concluded that the State parties did not intend abortion to be treated as healthcare for the purposes of Article 12. That it had to be made explicit that healthcare included family planning tells against any presumption or assumption that healthcare implicitly included access to abortion. The absence of reservations to Article 12 of CEDAW by States which restrict abortion further emphasises this.

16. The same analysis applies to the references to health and family planning in Articles 10 and 14 of CEDAW. There is therefore no basis for the Committee’s findings that a restriction on access to abortion can constitute a violation of these articles, which relate to the arrangements made for relationships and sexuality education or for rural women’s access to abortion.

17. General Recommendation No. 24 constitutes the Committee’s formal elaboration of its understanding of Article 12 of CEDAW.[7] It comments, albeit obliquely, on abortion, at two points. First, when it suggests that it is discriminatory for a State to refuse to provide legally for the performance of ‘certain reproductive health services for women’;[8] and secondly, when it is said that ‘other barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women [? or] punish women who undergo those procedures’ [sic].[9] It is only at the end, when recommendations are made for government action, that laws on abortion are specifically highlighted. The recommendation is that, ‘when possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion’ (emphasis added).

18. This recommendation cannot have its roots in Article 12 for the reasons set out in paras 12 to 17 above. It is not for the Committee to read in words which are not in the carefully agreed text of the international commitment entered into by States. However even if this recommendation were validly made, what General Recommendation No. 24 commends falls far short of the supposed obligations to which the United Kingdom seems to be held in the inquiry report. Since abortion does not constitute a form of “healthcare” under a proper reading of the CEDAW, a prohibition or criminalisation of abortion cannot amount to a barrier to women’s access to appropriate healthcare.

19. The inquiry report also references General Recommendation No. 28 on the core obligations under Article 2 of the Convention. This general recommendation calls on States to promote equality of opportunity for women through implementation of plans and programmes ‘in line with the Beijing Declaration and Platform for Action’. In this context, the Beijing Platform asks States to, ‘consider reviewing laws containing punitive measures against women who have undergone illegal abortions’ [106-k] (emphasis added). What was agreed by States in Beijing is far more respectful of the extent to which States might wish to protect unborn life than the position adopted by this inquiry report.[10] In light of this, General Recommendation No. 28, purporting as it does to be ‘in line with the Beijing Declaration’ cannot serve as a basis for the inquiry findings. The Beijing Platform correctly identified that the extent and manner in which States protect unborn life are matters over which they have a considerable and legitimate degree of sovereign discretion. The more doctrinaire approach of the Committee failed to recognise and acknowledge this.

20. The inquiry report also gives some free-standing weight to Article 16 (rather as simply a context for interpreting Article 12) in reaching its conclusion in [60] of the report. It appears to rely on the following particular provision of article 16:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

21. Again, there is no specific mention of a right to abortion, the textual focus very much being on equality in decision-making, as opposed to an undefined right vested solely in the mother. However, Monaco and Malta entered reservations on abortion to the extent that this commitment might be interpreted as requiring the decriminalising of abortion. Such an interpretation (however strained) could, of course, only come about as a result of a decision of the International Court of Justice and none has been forthcoming.

22. Nothing in General Recommendation No’s. 19 or 35, the latter of which suggests that criminalisation of abortion is a form of gender based violence, reveals any sound basis for the inquiry’s findings.

23. Similarly, the report’s reliance on Article 5 (and what it sees as stereotyping of women) does not empower it to recommend decriminalisation of abortion and/or positive rights to abortion in certain specific cases. At most, a legitimate comment from the Committee on a perceived failure to meet the Article 5 obligation would be a call for state action to combat a form of stereotyping that views women primarily as mothers.

24. Nothing in any of the other General Recommendations cited by the Committee (for example, on rural women, migrant workers and refugees) casts any light on how the obligations to provide for and decriminalise abortion can be derived from CEDAW.

25. In summary, the Committee’s suggestion that the Northern Irish criminal law on abortion is discriminatory against women cannot withstand scrutiny. Discrimination under Article 1 of CEDAW involves differential treatment or impact. It is meaningful to compare the treatment of pregnant women with the treatment of others in the context of, for example, employment or benefits. Where the prohibition under challenge deals in terms with the circumstances in which termination of pregnancy is permitted there can be no meaningful comparison. Any law dealing with that subject matter must necessarily apply to pregnant women and not others (setting aside the doctors who perform abortions). In the context of such a law, it makes no sense to talk of discrimination against pregnant women. That is why there is no authority suggesting that laws governing termination of pregnancy fall to be justified as discriminatory against pregnant women or women generally, in the jurisprudence of the European Court of Human Rights in Strasbourg, the Court of Justice of the European Union in Luxembourg, or in the domestic courts of the United Kingdom.

Oth­er inter­na­tion­al human rights instruments

26. The protection in international law for the unborn child is inconsistent with the Committee’s reading in of obligations to provide for abortion as of right. The preamble of the United Nations Convention on the Rights of the Child refers to legal protection of the child ‘before as well as after birth’ when it says:

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth"

27. Article 6 of the UN Convention on the Rights of the Child then sets out that:

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 6

28. The text of the Convention on the Rights of the Child acknowledges that rights can exist before birth and in particular, the right to life. The plain text aside, one of the reasons we know this is that the United Kingdom felt it necessary to make a declaration when agreeing the treaty, advising that it interprets the Convention as only applicable following a live birth. France also entered a declaration to protect its domestic law on abortion. The majority position is therefore at odds with any suggestion that there is an internationally agreed right to end life in cases of rape, incest, maternal ill-health or severe foetal impairment.

29. The United Nations Convention on the Rights of Persons with Disabilities is of central importance on the supposed creation or extension of a right to end the life of an unborn child because she or he has been diagnosed with a severe impairment. The focus throughout the Convention on the Rights of Persons with Disabilities, adopted in 2006, is equal protection for those with disabilities. Importantly, the text of Article 10 expressly does not restrict the right to life to those who are born:

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.
Article 10

30. Even where abortion is provided for in state law, the Committee of the Convention on the Rights of Persons with Disabilities has consistently criticised any practice which provides for abortion in a way which distinguishes between the unborn on the basis of disability. Most recently it has recommended that the law in Great Britain be changed so as to not to legalise selective abortions on the ground of foetus deficiency: CRPD/C/GBR/CO/1, August 2017.

31. The attempt of the Committee of CEDAW to align its report with the Committee of the Convention on the Rights of Persons with Disabilities CRPD in condemning disability selective abortion, while finding that the United Kingdom is in violation of the CEDAW for not providing for a right to abort on the ground of severe foetal impairment, is not a tenable position. A suggestion that the State should introduce such a right but somehow ensure that women’s decisions to end pregnancies on receipt of a diagnosis do not perpetuate stereotypes towards people with disabilities (as living a life of less value) makes no sense. The Committee’s proposal that the content of the United Kingdom’s obligations under CEDAW include provision of abortion in particular free-standing circumstances, one of which is “severe foetal impairment” (i.e. disability), creates a de facto divergence in treatment between able-bodied and disabled, as the former would not fall for abortion on this ground, unlike in circumstances of rape, which would be indiscriminate.

PROFESSOR MARK HILL QC

Francis Taylor Building

Temple

London EC4

19 March 2018

Ref­er­ences

[1] United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

[2] Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (A/RES/54/4) (“Optional Protocol”), entered into by the United Kingdom on 17 March 2005.

[3] This quotation is taken from paragraph 58 of the Report.

[4] The Committee’s use of the expression ‘jurisprudence’ in paragraph 54 of the Report is revealing. The Committee is not a court and has no standing or power to act as an authoritative judicial interpreter of the text of CEDAW.

[5] The statement in paragraph 60 of the Report that “The Committee consistently discourages the use of abortion as a means of family planning” does not sit happily with the broadly stated generality deployed elsewhere in the Report.

[6] Programme of Action of the International Conference on Population and Development, (Cairo 1994).

[7] General Recommendations Adopted by the Committee on the Elimination of Discrimination Against Women (Twentieth sessions, 1999).

[8] Ibid, General Recommendation 24, paragraph 17.

[9] Ibid, para 14. The text of the original is set out verbatim, with the suggestion of “or” in square brackets to express the assumed intended meaning.

[10] The United Nations Fourth World Conference on Women, Beijing, Platform for Action, (September 1995). See by way of example, the comment under Action to be Taken at paragraph 106-k: “any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process".

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