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Cliodhna Murphy - Aoine Aib 28, 2017 12:33
We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project ?Integration Policy in Ireland Through the Lens of Human Rights and Equality?. In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research […]
We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project ?Integration Policy in Ireland Through the Lens of Human Rights and Equality?.
In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research project which focuses on the development of a human rights-based integration policy framework for public bodies. One aspect of the research involves the collation and analysis of public bodies’ existing policies relating to migrant integration, diversity or interculturalism. In evaluating public bodies? integration policies, it seems fitting to turn firstly to the Migrant Integration Strategy published by the Office for the Promotion of Migrant Integration in February of this year.
Underpinning Features of the New Migrant Integration Strategy
The first formal strategy for integration was produced in 2008 by the Office of the Minister for Integration. This document, called ?Migration Nation?, outlined the principles intended to underpin Irish integration policy. The need for a renewed focus on integration and a more developed and long-term approach was recognised by the Government and resulted in the publishing of the new strategy this year.
The central features underpinning the new strategy are its definition of integration as a broad-based, two-way conception; its focus on a mainstreaming, intercultural approach to policy enforcement; and its foundation on the EU Common Basic Principles for Integration. The strategy also centres on the idea that it is addressing a new phase in Ireland?s integration policy – moving beyond the initial phase of focussing on the needs of those newly arrived in Ireland, to that where many migrants have lived in Ireland for some time but may continue to have needs particular to their migrant status.
The strategy is much more focused on identifying actions rather than setting out guiding principles. The strategy identifies two types of actions. The first type of actions are those applicable to all Government departments which include making information available through signs and translated material, training on intercultural awareness and providing information on how to make a complaint about racist behaviour.
The second type of actions is those which are intended to address particular issues. Some of these are interesting and quite specific – such as the inclusion of a target of 1% for the employment of EEA migrants and people from minority ethnic communities in the civil service (in most cases civil service employment is not open to non-EEA nationals) and the monitoring of current school enrolment policies over time to assess their impact on the enrolment of migrant students. Other actions are broad and nebulous (for example, ?encourage businesses to focus on integration?; and ?migrants will be encouraged to participate in local and national politics to the extent that these areas are legally open to them?.)
A Human Rights and Equality Focus?
As the research project is focused on developing a human rights and equality-based migrant integration policy framework for public bodies, we were keen to establish the extent to which the Migrant Integration Strategy is either explicitly or implicitly human rights-based.
?Human rights? are not expressly mentioned in the Migrant Integration Strategy apart from a handful of references which are made only for the purpose of outlining the duty on the Irish Human Rights and Equality Commission. There are no references to upholding human rights standards or ensuring that human rights are enjoyed by all, and human rights principles are not expressly given as a rationale for any of the measures outlined in the strategy. However, there are a small number of express references to ?equality? and equality principles. It is stated that the vision of the strategy is to enable migrants or persons of migrant origin to participate ?on an equal basis? with those of Irish heritage. The strategy also expresses a commitment to ensuring ?equality of opportunity? for second generation migrants although it does not proceed to explain how this will be achieved.
The strategy does contain some implicit references to human rights and equality principles and human rights issues. Commitments are made with regard to the right of participation, as the strategy outlines its vision of enabling migrants or persons of migrant origin to participate on an equal basis with those of Irish heritage. The principle of non-discrimination is also referred to implicitly in the outline of measures aimed at combating racism and xenophobia including intercultural training, ensuring representation of migrants on joint-policing committees, and other measures. However, the strategy also states that provision of generic training across the public service via the shared learning and development curriculum will address specific provision of antiracism and cultural awareness training only ?where a need is identified?.
One of the core elements of the strategy?s vision is that ?the basic values of Irish society are respected by all?. The strategy also states that integration recognises the right of migrants to give expression to their own culture in a manner that does not conflict with the ?basic values of Irish society? placing an emphasis on the need for migrants to conform to Irish values without elaborating on what these values are. As Xanthaki argues, portraying values as simply ?Irish? or ?European?, as though Irish and European societies are beacons of democracy and fairness, and then expecting migrants to conform to these values, can serve to create a conditional one-way process of integration and to impose an artificial gap between the ?host community? and migrant communities.
Positive Aspects of the Strategy
The Migrant Integration Strategy contains several positive features in its vision to achieve integration. The first of these positive points is that aside from some limited and under-explored references to ?values?, the strategy does not appear to focus on ?cultural integration?. It states that migrants should be enabled to celebrate their national, ethnic, cultural and religious identities (subject to the law). A second aspect is its participatory conception of integration: its vision is that migrants are facilitated to play a full role in Irish society. A third positive point is that the strategy recognises the need for better data on issues facing migrants (action 8).
A further positive feature is that some of the actions deal with long-standing issues of immigration law. Here, the strategy states that a statutory scheme for long term residency will be introduced (action 11). In addition, measures will be introduced to enable registration of non-EEA migrants aged under 16 years (action 14). These measures are to be welcomed. Related to this point is another positive in that the Department of Social Protection is to continue to take measures to ensure that the Habitual Residence Condition for welfare payments is applied correctly and consistently (action 21).
Points of Concern
While the Migrant Integration Strategy has strengths, there are also some points which cause concern. An initial point of concern is that the vision of the strategy includes, as its first priority, that ?The basic values of Irish society are respected by all? and that it does not identify what these values are or might include. A second point of concern is that, as outlined above, there are no express references to human rights principles as such, although some reference to ?equality of opportunity?. The limited nature of references to immigration law is a further point of concern. Access to family reunification and the regularisation of undocumented people are some important long-standing issues which are not dealt with in the strategy. The strategy?s commitment to examine the imposition of a citizenship and/or language tests (action 12) is a further point of concern, as such tests act as barriers to integration.
The fact that the strategy does not apply to asylum seekers or undocumented migrants, as it only applies to ?EEA and non-EEA nationals, including economic migrants, refugees and those with legal status to remain in Ireland? is unsurprising but nonetheless disappointing. This means that direct provision falls outside law and policy once again.
A final potential point of concern is the lack of any reference to relevant research reports, the ESRI?s Annual Monitoring Report on Integration, academic studies of integration and so on. Perhaps this is to be welcomed as it means that the strategy favours a pragmatic approach. However, this could also result in a lack of coherency and the lack of a developed vision of integration and its implications.
admin - Máirt Aib 25, 2017 20:42
Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of […]
Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of Lawyers for Choice.
Regrettably, the Assembly?s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.
In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law.
We welcome the Citizens Assembly?s recommendation that abortion be available on request up to 12 weeks, and on socio-economic and health grounds up to 22 weeks. However, we are concerned that the Assembly process did not always give members the opportunity to consider international best practice in the drafting of abortion legislation. To this end we note:
The draft Bill can be accessed in full here.
Eoin Daly - Luan Aib 24, 2017 11:50
NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017. Professor Mullally is currently a Professor at the School of Law, UCC where she also […]
NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017.
Professor Mullally is currently a Professor at the School of Law, UCC where she also holds the position of Vice-Head of the College of Business & Law. She was recently elected President of the Council of Europe expert group on human trafficking, GRETA. Professor Mullally is also a Commissioner of the Irish Human Rights & Equality Commission and a member of the Permanent Court of Arbitration in The Hague.
For further information see here.
admin - Domh Aib 23, 2017 12:31
We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project. As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it […]
We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.
As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.
Barriers to access
A central problem in the timely administration and delivery of high quality care is the existence of ?barriers to access?. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ?getting? here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.
Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.
Access and abortion care
In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.
Abortion care access also needs to recognise the ?timings? of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.
What does this mean for a first trimester focused law?
The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow?s systematic review (http://jfprhc.bmj.com/content/41/3/170.short?utm_source=rss&utm_medium=rss; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute?s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.
Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)
What would this mean in practice?
If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion... ) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.
Máiréad Enright - Déar Aib 20, 2017 17:28
by Mairead Enright. (@maireadenright) In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. […]
by Mairead Enright. (@maireadenright)
In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.
What have the results been?
A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.
However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X held that the mother’s right to survival and the foetus’ right to be born are equal.
That said, foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.
The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.
How does abortion end up in the Constitution?
It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post. In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.
Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.
Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.
Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.
There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.
Liam Thornton - Máirt Aib 18, 2017 15:06
On Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact. With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the […]
On Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact.
With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the constitutional settlement(s) on this island.
The full programme, speakers and paper abstracts can be accessed here.
Seminar delegates can register for the conference here (selecting the free of charge option unless CPD is required, for which there is a ?60 charge)
Call for Applications: Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017
Charles O'Mahony - Máirt Aib 11, 2017 19:20
Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017. This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system […]
Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.
This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.
The themes of the summer academy are:
The list of distinguished speakers:
Professor William Schabas (Middlesex University/Leiden University) – Judge Howard Morrison (International Criminal Court) – Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University) – Judge David Baragwanath (Special Tribunal for Lebanon) – Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) – Professor Roger S. Clark (Rutgers Law School) – Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) – Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court) – Professor Tim Wilson (Northumbria University) – Professor Roger Clark (Rutgers Law School) – Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) – Dr. Tanya Wyatt (Northumbria University)– Dr. Noelle Higgins (Maynooth University) – Professor Michael Rowe (Northumbria University) – Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) – Dr. Michael Kearney (Sussex University) – Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) – Dr. Patricia Hobbs (Brunel University) – Dr. Hakeem Yusuf (University Birmingham) – Dr. Elena Katseli (Newcastle University) – Dr. Jamie Harding (Northumbria University) – Dr. Ibrahim Shaw (Northumbria University) – Professor Nigel South (University of Essex) – Dr. Damien Short (University of London) – Professor Chrisje Brants (Northumbria University) – Professor Liz Campbell (Durham University) – Dr. Mohamed ‘Arafa (Indiana University) – Ms. Gemma Davies (Northumbria University) – Dr. David McGrogan (Northumbria University).
This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world.
For further information and to register please visit www.northumbria.ac.uk/about-us/news-events/events/2017/06/northumbria-univers... or email firstname.lastname@example.org. Participants may register to attend individual sessions or the whole event. Please note that places are limited and the deadline for ‘early bird’ registration is Monday 17 April 2017.
Máiréad Enright - Céad Márta 08, 2017 07:51
This International Women?s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman?s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the […]
This International Women?s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman?s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the state to protect the right to life of the ?unborn?, from the moment of implantation, against the actions of the woman who carries it. In recent years, this law has been used to delay medical treatment to a woman suffering an inevitable miscarriage at the cost of her life; to keep a woman?s body on life support after brain-death in an attempt to prolong her second trimester pregnancy to viability; to forced Caesarean section on a young suicidal rape victim; to deny countless women the right to refuse a wide range of interventions in pregnancy and birth.
Fearful expulsion is the abortion law?s most ordinary side-effect. Women needing abortions – perhaps a dozen a day – travel abroad, while others perform early medical abortions at home. Irish women save to pay for their own abortions: for travel, accommodation and medical fees. In the time it takes to save, they find that they need more expensive abortions because their pregnancies are further along. The abortion regime also depends on women?s ability to access abortion out of sight; whether by travelling abroad or by procuring one in secret at home. Some solidarity is available for funding, but nobody can buy you time. On and off the job, abortions mark working time. Women plan abortions for weekends, ?sick days?, paid and unpaid ?holidays?. By taking women?s bodies out of the workplace for a day, this strike underscores not only the importance of reproductive labour in general, but these specific relations between work and managing and undoing unwanted pregnancy.
The publicness of this strike is an important counterweight, not only to the secrecy of travel and of home abortion, but to the shaming and silencing on which effective regulation of women?s reproductive lives depends. It makes visible many of the networks of care and solidarity which allow women to survive that silencing and shame. And in a week which saw yet another official ?rediscovery? of the recent brutal history of incarceration of unmarried pregnant women in Ireland in institutions which set store by the the terms of women?s assembly in church, in religious parades and in the streets, the importance of this black-clad public assembly, this unexpected return, cannot be overstated.
But Strike for Repeal is also about law-making. The strike is framed as a response to the government’s failure to call a referendum by March 8th. There is clear and growing public demand for liberalisation of the law. Left-wing TDs have repeatedly asked for an immediate response to that demand: not only in the shape of a referendum, but of a softening in the worst effects of the abortion regime, by reducing criminal penalties, regulating exploitative bogus pregnancy counselling and providing some relief for women whose foetuses are diagnosed with fatal foetal anomalies. The government has repeatedly blocked these demands. It installed the Citizens? Assembly as a precursor to any legislative deliberation on the prospect of constitutional change. The Assembly consists of a judge (an ‘appropriate woman‘) and 99 citizens chosen by a polling company; supposedly representative of the people in terms of gender, age and geography. It is an exercise in ?deliberative democracy? designed to produce ?vital consensus on behalf of us all?. However, the government has made no firm commitment to implement the Assembly?s recommendation. These will likely be filtered through further committees. No timeline has been set for proposal of a final reform bill. A popular referendum is not expected until 2018 (coinciding, of course, with a Papal visit). The strike protests delay: the refusal to recognise the abortion issue as urgent. That denial of urgency must be understood in the context of a broader attitude to law-making. The government presents aching slowness and caution as essential to any legal change on abortion because it is understood as an issue of unique moral weight. The judge-led Assembly embodies a desire to discipline processes of legal change, ensuring an incrementalist approach which is presumptively civilised and civilising, never destabilising, immune to popular politics.
What the government calls disciplined law-making has two characteristics: ?neutrality? and ?balance?. A concern for neutrality ensured that no lawyers who had expressed an opinion on the Irish abortion debate were invited to present to the Assembly, or appointed to the panel of academics which advised the Assembly on the selection of expert speakers. When the Assembly received over 13,000 written submissions, neutrality apparently justified the decision to select 300 at random for the Assembly members to read, without regard for content or repetition. ?Balance’ means something more than impartiality. Speakers, whether advocates or experts, generally appeared in pairs: pro-choice and pro-life. Balance, then, is always binary. Presentations of the law, interestingly, were not made in pairs. Perhaps, once experts in abortion law had been excluded from Assembly proceedings, no balance was required in this respect. The perceived need to ?balance? presentations allowed ample voice for pro-life and conservative religious organisations and speakers, well in excess of their support among the broader population. In the process, it obscured the pluralism of the pro-choice majority. The Assembly heard, not only from pro-life medical ethicists and religious leaders, and Irish conservative organisations, but from prominent American pro-life activists, chosen by Irish organisations to speak in their place. Meanwhile, several Irish pro-choice advocacy groups were excluded, including important representative organisations for women who have had abortions, such as the Abortion Rights Campaign, and Termination for Medical Reasons Ireland. No organisation representing women of colour was invited to speak. When the Assembly heard women?s scheduled direct accounts of abortion, it was not in person, but in the form of short, edited and anonymised audio recordings of interviews with women who had ended pregnancies in a narrow range of circumstances. For ?balance?, some of these recordings were of women who had not ended their pregnancies. By adopting ?neutrality? and ?balance? as lodestones of the process, the Assembly suggests that the statements and presentations made to Assembly members are all equally valid and valuable found objects, which speak for themselves, rather than contested and contestable political artefacts created for and by the Assembly. In particular, non-interventionist neutrality ensures that the Assembly operates without any ?fact checking? resources. So, by and large, the members are left to weigh presentations and submissions for themselves, or rely on other speakers to devote some of their allocated time to correcting misrepresentations. Several members of the Assembly have asked penetrating, and at times critical questions, and recently indicated support or displeasure through spontaneous applause. Some women speaking before the Assembly have also been able to subvert the imposition of particular forms of civility.Watch, for example, the gesture of Sinead Redmond of Parents for Choice giving her testimony with her baby daughter; their own pairing gently provoking conservative conceptions of the incompatibility of motherhood and choice. However, these moments of substantive critical agency are just that – performative moments – which occur in spite of, rather than because of the formal Assembly process.
It may be that the Citizens’ Assembly process is supposed to reassure women. It is supposed to remind us of the Constitutional Convention, which we are assumed to remember as the liberal pump-primer for Marriage Equality. Watching the Citizens’ Assembly meetings over the last 4 months, I have been reminded of other antecedent processes established to address historical gender-based violence against women – also judge-led; also scrupulously careful to restrict space for women?s direct testimony; also insufficiently critical of narratives that seek to justify and legitimate treatment which women call injury and harm; also designed to settle, neutralise and rebalance women’s claims to reparative and transformative reproductive justice. The Assembly, on this reading, reinforces an expectation that women are not entitled to appear before law on their own terms, even where law is to be applied to the most intimate dimensions of their lives.
Jon Berger wrote that mass demonstrations were not, as is often commonly thought, an attempt to convince the state to change a hated policy. Instead, they artificially created events, separated from everyday life, which ‘express political ambitions before the political means necessary to realise them have been created’. The state’s response to these ambitions does not matter very much. What matters is that those participating, and those sympathetically witnessing the demonstration become more aware of their shared purpose and fate; feel themselves standing together against the state’s projects. Berger argues that demonstrations are ‘rehearsals of revolutionary awareness‘; they may foreshadow revolution, or perhaps revolutionary return of something suppressed. Strike 4 Repeal is a complex movement. In its demand for an immediate referendum, it enacts a struggle for law: it is a necessary agonistic demonstration of appetite for law and law-making processes which are not contained by appeals to balance and neutrality. It is a warning of the impossibility of suppressing women’s diverse and complex demands for legal change and a rejection of past governmental tactics of repression and control. Women gather in black today at 12.30.The recent work of Jesse Jones on gender, reproduction and Irish law references an Italian feminist protest chant which captures the possibilities: ?Tremble, tremble, the witches have returned!”
GuestPost - Domh Feabh 26, 2017 20:19
We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly. In the context of debates about abortion, autonomy is often appealed to by […]
We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.
In the context of debates about abortion, autonomy is often appealed to by those promoting greater legal access. Those who wish to restrict access to abortion must either argue that autonomy is not as ethically significant as is often assumed, or that in the specific case of abortion the autonomy of pregnant women should be limited. Dr. Dónal O?Mathúna explores each of these lines in his presentation to the Citizen?s Assembly.
O?Mathúna?s initial characterisation of autonomy is very similar to that offered by Dr. Joan McCarthy: ?our freedom to make decisions about our own lives?. He acknowledges that in general it is a good thing that personal autonomy has become more widely respected, but cautions that it is also possible to pay too much respect to it. Furthermore, he argues that this form of autonomy, which he terms ?self-rule autonomy?, is inadequate when it comes to thinking about abortion. He offers in response a notion of ?relational autonomy?, in which our autonomy should be limited by other ethical principles, such as the responsibilities we have towards others:
Self-rule autonomy leads to isolation because our focus is on ourselves, not our relationships. Relational autonomy involves those around the pregnant woman and reminds them of their ethical responsibilities.
The first problem with O?Mathúna?s argument is that he seems to mischaracterise self-rule autonomy and its role in ethical thinking. The principle of autonomy concerns the individual agent: if a decision concerns his or her own life, then he or she should be the person to decide what to do. O?Mathúna also makes claims about the autonomous agent, namely that he or she will be concerned only with his or her own interests or desires: ?Self-rule autonomy means I choose what I want?. But this is not what the principle says. An autonomous agent is free to make decisions concerning her own life, but it does not follow that she will not (or should not) take anyone else?s interests or opinions into account. Autonomy does not require us to be either selfish or focused on ourselves.
The second problem is that O?Mathúna does not distinguish two very different points which one might raise about self-rule autonomy. First, one might point out that this form of autonomy is of little help in determining which choices are morally speaking better than others. Second, one might argue that autonomy does not apply in certain cases, or can be limited, in that certain actions should not be permitted by law.
The difference between these points is crucial in the context of discussing whether and in what way autonomy should be legally limited. The first point is of little use in such discussions. Appeals to autonomy are not usually intended to help decide what we ought to do, but rather to decide who ought to be allowed to choose. The fact that autonomy does not determine what we should do does not show that it should be limited; rather, it suggests that autonomy should be supplemented in our ethical decision-making by other ethical principles, reasoning, and empathy. Also, note that this supplementation concerns ethics, a person or persons deciding what they ought to do; it does not concern how the law should be framed. Of course, the law should not be completely divorced from ethical concerns, but nor should it simply mirror our ethical views, and not only because many of us in fact disagree concerning different ethical issues.
O?Mathúna raises this first point at a number of places in his article, without seeming to realise that it is of doubtful relevance to the legality or illegality of abortion. He also seems to run together the first and second points, as in the following passage:
It is true that certain autonomous acts are neither legal nor ethical. However, that certain actions are unethical does not by itself mean that they should be illegal. In general, many acts which most of us agree are unethical are permitted by law, in large part out of respect for personal autonomy. Indeed, some O?Mathúna?s examples illustrate this. In Ireland there is no law against lying (except in specific circumstances, such as when one is under oath), nor against hurting others (unless one does so in certain ways, e.g., violently), nor against refusing to help others. These actions may be unethical, but on its own this does not seem a good basis for arguing that they should be illegal.
O?Mathúna is on firmer ground when making the second point, as when he gives examples where certain actions are proscribed: ?We put limits on people?s autonomy legally, by insisting they pay taxes or obey the rules of the road?. However, if we regard respect for autonomy as an important part of deciding which laws should hold, limits to autonomy need in each case to be supported by appropriate ethical argument. And there is surprisingly little of this in O?Mathúna?s presentation. In support of limiting the autonomy of pregnant women, he briefly mentions that abortion both harms the foetus and constitutes an injustice to it. But in neither case does he engage in any detail with the substantive ethical and philosophical issues which such claims raise: e.g., how morally significant is the harm which abortion causes to the foetus? Is a foetus the kind of entity for which questions of justice or fairness can arise? If abortion is unjust to the foetus, does it always outweigh the possible injustice of forbidding women access to abortion? Without discussion of these and related issues, O?Mathúna?s defence of the need to limit the autonomy of pregnant women is sketchy at best.
As mentioned earlier, O?Mathúna puts forward a notion of relational autonomy, on which autonomy is balanced by other ethical principles, such as ?the responsibilities intimately linked to our choices?:
By agreeing to sex, one does take certain ethical responsibilities, most obviously towards the person with whom one is having sex. But it is not clear whether one also takes on any responsibilities to a person who is not yet conceived. Furthermore, it is not clear whether the responsibilities one takes on in agreeing to sex carry enough ethical weight that one should be legally prevented from acting in certain ways. In this context, it is worth noting that regardless of what responsibilities one thinks a person who has sex thereby takes on, relatively few societies, and none in the Western world, outlaw sex outside of a committed, permanent relationship.
Abortion in cases where the pregnancy is a result of rape presents a different challenge. O?Mathúna?s position is that this does not make a difference, ethically speaking, to the issue of whether or not to allow abortion: ?If allowing the unborn to grow and experience life is the right thing in other situations, it does not matter how the pregnancy came to be.?
Many people would regard this view as doctrinaire, and as minimising or ignoring the moral plight of the woman who has been raped. This criticism may not be necessarily well-founded. For someone convinced that the life of the foetus is as morally significant as that of any other human, abortion is not the kind of action which could ever be permitted on the grounds of minimising suffering, even the suffering of someone who has been terribly wronged. By way of (an imperfect) analogy, it is illegal for relatives of a murder victim to kill the person responsible out of vengeance, no matter how grievous the loss they have suffered. This is compatible with understanding the completely human urge many people would have to do so.
However, whether or not it is defensible on its own terms, this view of abortion after rape seems to be quite unpopular in Ireland. More generally, such cases present opponents of a referendum on abortion with a quandary. Arguing against abortion in such circumstances, even if it is consistent with their ethical views, risks presenting their position as at best unsympathetic and at worst downright callous. O?Mathúna?s notion of relational autonomy can be seen as in part an effort to present the anti-abortion case in a softer light, but it is doubtful whether he succeeds.
A final point about O?Mathúna?s notion of relational autonomy, in the context of discussing Ireland?s abortion laws. If the responsibilities pregnant women have towards others justify prohibiting abortion, it is reasonable to ask whether they would justify prohibiting women from travelling to access abortion in jurisdictions where it is legal. If they do not justify prohibiting travel, it is worth asking why this might be. It is not clear whether the notion of relational autonomy allows one to distinguish between these cases, or how it might do so. This suggests that relational autonomy is of limited use in considering the law around abortion, or at least that it stands in need of much greater development if it is to bear the weight of the argument O?Mathúna is asking it to carry.
 Dr. O?Mathúna?s presentation is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .
 Dr. McCarthy?s presentation is also available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .
 One might disagree with this claim, but in that case it is hard to see how there could be a place for any substantive principle of autonomy in one?s view of either ethics or the law.
 In an Irish Times/Ipsos MRBI poll, 74% of people wanted abortion available in circumstances including where the pregnancy is the result of rape (Stephen Collins, ?Irish Times Poll: Majority Want Repeal of the Eighth Amendment?, Irish Times 7/10/2016 http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-... ).
GuestPost - Luan Feabh 20, 2017 11:13
The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of […]
The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions
The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation.
The objective of The Hague Justice Journal is to promote a profound collective reflection on the problems and challenges facing international law. Rejuvenated in 2016 by a group of international lawyers, the Journal addresses the major dilemmas of international justice from inter alia the perspectives of law, international relations, jurisprudence, criminology, sociology, penal philosophy, and the history of international judicial institutions. It is an online law journal intended for the benefit of academics, practitioners, graduate and post-graduate students, government officials, as well as the many people working for international organizations.
For more information on the journal please see: http://haguejusticejournal.org/?utm_source=rss&utm_medium=rss
In keeping with the general theme of the ICTY Legacy Conference selected papers for publication should ideally address:
If who are interested in publishing a paper in the journal you should get in touch by email to the Chief Editor, Dr Anna Marie Brennan at: email@example.com
If you are interested in contributing to the volume please submit a 300-word abstract of the paper by 28 April 2017 to firstname.lastname@example.org along with the following information;
Abstracts will be reviewed and successful contributors will be invited to submit first drafts of papers by email to: email@example.com in Microsoft Word format by 1 August 2017.
Papers between 6,000-12,000 words are invited. In exceptional cases, the editorial board will increase this limit to 15,000 words for Articles that make an important contribution to the field.
All manuscripts are double-blind peer reviewed. Receipt of all manuscripts will be acknowledged as soon as possible. All manuscripts should be double-spaced with a single spaced abstract and footnotes. Heavy footnoting is discouraged. Authors are invited to follow OSCOLA, which is the journal?s style guide, which may be obtained from the editorial assistant upon request, or from the journal?s web page.