Disappointing decision on abortion in Ireland

(Delighted to welcome back alumna Máiréad Enright, who contributes this guest post)

Over at the Human Rights in Ireland I have assembled a series of 'rapid responses' by five Irish feminist scholars to the recent judgment in A, B & C v. Ireland (December 2010), in which the European Court of Human Rights (right) ruled that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. IntLawGrrls Fiona de Londras discussed the judgment as soon as it was issued, on this blog here. The responses that I have compiled critique the judgment and aim to place it in its broader legal context.
► Dr. Lisa Smyth, a sociologist at Queen's University Belfast, argues that the judgment in A, B & C signals a 'downgrading' of the abortion issue in Ireland: the shift from widespread moral to detailed legal argument signals the changed significance of this issue, once imagined to capture the essence of Irishness in the face of a history of colonisation and an imagined future of increasing European liberalisation.'
► Dr. Brenda Daly of the School of Law and Government at Dublin City University explains why the judgment will almost certainly drive the Irish government to legislate to regulate access to life-saving abortions.
► Dr. Mary Gilmartin (below left), at the Department of Geography, National University of Ireland-Maynooth, notes that the judgment leaves the status quo untouched as it concerns women whose lives are not placed at risk by pregnancy. She writes that

'the Court is following decades of practice in Ireland – from the forced emigration of pregnant women in the mid twentieth century to the ‘right to travel’ of the 1990s – where mobility has become an expedient way of addressing the vexed question of women’s sexuality. That mobility is still a ‘solution’ means that the broader issue of access to abortion services continues to be displaced across international borders.'

► Dr. Ruth Fletcher of the School of Law at Keele University in Staffordshire, England, sets the judgment in the context of ECHR jurisprudence and criticises it on four grounds:
►► It overstates the respect due to 'profound moral values' as a ground for limiting individual rights;
►► It simultaneously limited the capacity of consensus among contracting states to restrict the scope of the individual state’s discretion to protect morals;
►► It did not take adequate account of health and well-being as important individual interests; and
►► The state is allowed to claim that it is meeting negative obligations to protect women’s health and well-being, by relying both on women’s resourcefulness to exit the jurisdiction and on the availability of independent, charitable services in other jurisdictions. (On this aspect of the decisions, see too the recent New York Times op-ed by American legal expert Linda Greenhouse (above right).
► Finally, Dr. Sandra McAvoy (left) of Women's Studies at University College Cork interrogates the dubious basis upon which the Court established the 'profound moral values' to which Ruth refers.
Together these pieces provide a rich introduction to the issues raised by this important, if ultimately disappointing, judgment.

The European Court of Human Rights on Abortion in Ireland

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “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”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

Write On! "Women's citizenship"

(IntLawGrrls is pleased to welcome back guest/alumna Máiréad Enright, who contributes this Write On! post)

The Centre for Criminal Justice and Human Rights, as well as the Institute for Social Science in the 21st Century, both at University College Cork in Ireland (where I'm a Fellow), invite Ph.D. students and new professors (no more than three years in teaching), from any discipline, to apply to participate in a workshop entitled "Subjects Before the Law: Membership, Recognition and the Religious Dimensions of Women's Citizenship."
The workshop, which will take place at UC Cork on Thursday, September 9, 2010 (the day before an international conference on "Gendering the Boundaries of Membership," which workshop participants also may attend), is organised as part of a Thematic Project on Gender Equality, Religious Diversity and Multiculturalism in Contemporary Ireland, sponsored by the Irish Research Council for the Humanities and Social Sciences. It will begin with a seminar by Professor Lois McNay (right) of Somerville College, University of Oxford, author of Against Recognition (2008), Gender and Agency: Reconfiguring the Subject in Feminist and Social Theory (2000), and Foucault and Feminism: Power, Gender and the Self (1992). My co-organizer, Cork Ph.D. candidate Eoin Daly, and I are particularly keen to receive papers which address McNay's work.
Here's our explanation of the workshop theme:

Recent years have witnessed a shift by states away from policies and politics of multiculturalism. Against a background of diminishing state sovereignty, matters of affiliation, allegience, membership and belonging have become important projects for government. Across Europe, transnational and sub-national constellations of belonging are viewed as threatening social cohesion, loosening the ties that bind the nation-state. State responses have been marked by an anxious and exclusionary politics of membership, which seek to restore and re-inscribe the state's role as first or sole sovereign. Religious citizens have appealed to notions of religious rights grounded in law in an effort to bypass or restrict state scrutiny and regulation of group activity. Such attempts can be seen today in debates on the role of Muslim family law, in litigation on the display and wearing of religious symbols and in the regulation of intimate relations and reproductive autonomy. Historically, the demarcation of gender roles has frequently been intertwined with attempts to identify defining attributes of national identity. Thus, new interactions between religious groups and the state in the field of law have particular implications for women, as gender roles and status become intertwined with the boundaries and limits of membership.

(credit for (c) 2007 photo of Muslim schoolchildren at Dublin school)
Themes and questions we aim to discuss at the workshop:

► What are the implications for women of the shift away from multicultural policies and politics?

► Can law provide 'refuge' for religion from hostile post-secular politics? How should we imagine the new 'legal turn' in religious engagement with the state?

► Who is the religious subject before the law? How does the law construct women's religious, cultural and political affiliations? How might it do better?

► What does recognition theory tell us about the possibilities and limits of religious engagements with law?

► What are the limits and role of rights discourse in responding to deficiencies in how law 'sees' religion?

► What shape does the 'public' concept of citizenship take in the regulation of 'private sphere' religious activity?
► What are the implications of integration and citizenship testing for women? What should be the responses of feminist and human rights discourse to such testing?
► How useful are concepts of 'multiplicity', 'plurality' and 'intersectionality' to a legal analysis of membership conflicts?
► Where and how do we locate Ireland in current debates on women's membership, multiculturalism and the law?
An abstract of 250 words respecting a paper to be completed before the workshop, plus a CV, should be submitted to corkworkshop2010@gmail.com no later than May 1, 2010.
Full details here.

Women @ ASILquater

As we have each year since our founding (here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 24-27 at the forthcoming annual meeting of the American Society of International Law.
This 104th gathering of the Society, entitled International Law in a Time of Change, kicks off with the Grotius Lecture by Antony Anghie at 4:30 p.m. on March 24, features a keynote address by State Department Legal Adviser Harold Hongju Koh at 5 p.m. March 25, the Manley O. Hudson Medal Lecture by Edith Brown Weiss (right)at 4:15 p.m. March 26, a keynote by Canada's Chief Justice, Beverley McLachlin (below left), at 5:30 March 26, and runs through March 27. All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)

Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have more (those few that do not include women do not, alas, receive mention in this list). Kudos to the Program Committee Co-Chairs, IntLawGrrls' own Hari M. Osofsky and our colleagues K. Russell LaMotte and Allen S. Weiner! Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls guest alumnae -- not only Planning Committee members Rebecca Bratspies, Chimène Keitner, Hope Lewis, and Beth Van Schaack, but also, of course, Lucy Reed (right), who will conclude her 2-year tenure as ASIL President at the meeting, to be succeeded by our colleague David D. Caron.
Without further ado, here's this year's honor roll:

Thursday, March 25, 9-10:30 a.m.
► "Empirical Approaches to International Law": Elizabeth Andersen (ASIL Executive Director), IntLawGrrl Elena Baylis (Pittsburgh), Susan Franck (Washington & Lee), Janet Levit (Tulsa), and panelists; Tonya Putnam (Columbia), moderator.
►"New Thinking on Social and Economic Rights: Honoring Virginia Leary," an IntLawGrrls foremother: IntLawGrrl guest/alumna Gay McDougall (United Nations) (below, far right), Mona Rishmawi (United Nations), and Alicia Ely Yamin (Harvard), panelists; IntLawGrrl guest/alumna Barbara Stark (Hofstra), moderator.
►"International Human Rights Law, Foreign Sovereign Immunity, and National Courts": Rosanne van Alebeek (Amsterdam), Sarah H. Cleveland (Counselor to State Department) (near right), panelists.
►"Getting to Closure: Winding Up the International and Hybrid Criminal Tribunals": Tracey Gurd (Open Society Justice Initiative) and Anne Joyce (State Department), panelists; IntLawGrrl guest/alumna Valerie Oosterveld (Western Ontario), moderator.
►"Risk, Science and Law in the WTO": Tracey Epps (New Zealand Ministry of Foreign Affairs & Trade), panelist.
►"New Voices I": Dionysia Avgerinopoulou (Columbia), IntLawGrrl guest/alumna Máiréad Enright (Cork), and Alexandra R. Harrington (McGill), panelists; Edith Brown Weiss (Georgetown), moderator.

Thursday, March 25, 10:45 a.m.-12:15 p.m.
►"Providing Global Public Goods Under International Law": Anne van Aaken (St. Gallen, Max Planck Institute), Victoria Henson-Apollonio (Consultative Group on International Agricultural Research), Inge Kaul (United Nations), and Sabrina Safrin (Rutgers-Newark), panelists; IntLawGrrl Rebecca Bratspies (CUNY), moderator.
►"Extraterritoriality: Bagram and Beyond": Sabine Nölke (Canadian Department of Foreign Affairs), panelist; IntLawGrrl guest/alumna Chimène Keitner (California-Hastings), moderator.
►"Hot Topics in GATS and Human Rights": Jane Kelsey (Auckland) and Marion Panizzon (World Trade Institute), panelists.
►"Teaching International Law: Lessons from Clinical Education": Lusine Hovhannisian (Public Interest Law Initiative) and Deena Hurwitz (Virginia), panelists.

Thursday, March 25, 12:30-2:30 p.m.
► Women in International Law Interest Group Luncheon: Dinah Shelton (George Washington; Inter-American Commission on Human Rights) (left), speaker.

Thursday, March 25, 1-2:30 p.m.
► "Afghanistan, Pakistan and the Modern Challenges to Use of Force Law": Elizabeth Rindskopf Parker (Pacific McGeorge) and Hina Shamsi (NYU), panelists; IntLawGrrl guest/alumna Mary Ellen O'Connell (Notre Dame), moderator.
► "Evolving Intersections Between Treaty Law and Domestic Law": IntLawGrrl Johanna E. Bond (Washington & Lee) and Mallory Stewart (State Department), panelists.

Friday, March 26, 9-10:30 a.m.
► "International Environmental Justice: Possibilities, Limits and Tensions": Deepa Badrinarayana (Chapman) and Jennifer M. Green (Minnesota), panelists.
► "Corruption and Human Rights": Leslye Obiora (Arizona), panelist.
► "International Law 2.0": Beth Simone Noveck (Office of Science and Technology) and Renee C. Redman (Iran Human Rights Documentation Center), panelists; IntLawGrrl guest/alumna Molly Beutz Land (New York), moderator.
► "New Voices II": Neha Jain (Max Planck Institute for Foreign and International Criminal Law), Kimberley N. Trapp (Cambridge), and IntLawGrrl guest/alumna Julie Veroff (Oxford), panelists.

Friday, March 26, 10:45 a.m.-12:15 p.m.
► "Non-State Actors and the Emerging Climate Change Law Regime:" Elizabeth Burleson (South Dakota) and IntLawGrrl Naomi Roht-Arriaza (California-Hastings), panelists; Jaye Dana Ellis (McGill), moderator.
► "Updating the Restatement": Oona Hathaway (Yale) and 9th Circuit Judge Margaret McKeown (left), panelists.
► "Same or Different? Fighting Terrorists in the Bush and Obama Administrations": IntLawGrrl Diane Marie Amann (California-Davis) and Susan Baker Manning (Bingham McCutchen), panelists.

► "The Rising Use of International Law by African Judiciaries": Erika George (Utah), panelist; Angela M. Banks (William & Mary), moderator.
► "Preventing the Next Financial Crisis: Coordination and Competition in Global Finance": Barbara C. Matthews (BCM International Regulatory Analytics), panelist.

Friday, March 26, 12:45-2:15 p.m.
► "Reform and Restructuring at International Financial Institutions": Anne-Marie Leroy (General Counsel, World Bank), panelist.
► "Theoretical Insights at the Margins of International Law: CLS Meets TWAIL": Celina Romany (Puerto Rico Bar Association), panelist; Jeanne M. Woods (Loyola-New Orleans), moderator.
► "Family, Sex, and Reproduction: Emerging Issues in International Law": Joanna N. Erdman (Toronto), Katherine Franke (Columbia), Laura Katzive (Wellspring Advisors), and Kathleen Lahey (Queen's-Ontario); Nancy Northup (Center for Reproductive Rights), moderator.
► "War and Law in Cyberspace": Eliana Davidson (Defense Department) and Robin Geiss (International Committee of the Red Cross), panelists.
► "Implications of the Global Financial Crisis on International Trade and Investment Regimes": Elizabeth Trujillo (Suffolk), panelist.

Friday, March 26, 2:30-4 p.m.
► "Bottom-Up Strategies for Survival and Resistance: Examples from Latin America and Elsewhere": Chantal Thomas (Cornell), panelist; Berta Esperanza Hernández-Truyol (Florida), moderator.
► "Transnational Legal Dialogue, a Human Rights-Based Hierarchy, and the Creation of Norms": Jutta Brunnée (Toronto), IntLawGrrl guest/alumna Patricia M. Wald (former Judge, International Criminal Tribunal for the former Yugoslavia) (right, and Melissa A. Waters (Washington University), panelists; Erika de Wet (Amsterdam and Pretoria), moderator.

► "Remembering Tom Franck: What He Taught Us about the Recourse to Force": Rosalyn Higgins (former President, International Court of Justice) (far left), moderator.

► "ICSID in the Twenty-First Century: An Interview with Meg Kinnear" (Secretary-General, World Bank's International Centre for Settlement of Investment Disputes) (near left).

Friday, March 26, 4:15-5:15 p.m.

► "Hudson Medal Lecture": Medal Winner Edith Brown Weiss (Georgetown).

Friday, March 26, 5:30-6:30 p.m.

► ""Keynote": Chief Justice Beverley McLachlin, Supreme Court of Canada

Saturday, March 27, 9-10:30 a.m.

► "The Road Forward from Copenhagen: Climate Change Policy in the 21st Century": Ann Petsonk (Environmental Defense Fund), panelist.

► "The ICC Review Conference and Changing U.S. Policy Towards the Court": Olivia Swaak-Goldman (International Criminal Court), panelist; Leila Nadya Sadat (Washington University), moderator.

► "China and East Asia on the World Stage": Deborah Brautigam (American) and Saadia Pekkanen (University of Washington), panelists; Julia Ya Qin (Wayne State), moderator.

Saturday, March 27, 10:45 a.m.-12:15 p.m.

► "Advancing Women's Rights Internationally": Cathy Albisa (National Economic and Social Rights Initiative), Fionnuala D. Ní Aoláin (Minnesota) and Rebecca Cook (Toronto),panelists; Kamari Maxine Clarke (Yale), moderator.

► "Treaty Bodies and Beyond: The Practice and Process of Translating International Norms into Domestic Law": Susan Deller Ross (Georgetown) and Ruth Wedgwood (John Hopkins; Human Rights Council) (right), panelists; Celia Goldman, moderator.

Guest Blogger: Máiréad Enright

It's IntLawGrrls' great pleasure to welcome Máiréad Enright (right) as today's guest blogger.
Máiréad is a Ph.D. Candidate in Law and the EJ Phelan Fellow in International Law, 2008-2010, at University College Cork, Ireland. She's completing a thesis on the reception of Muslim divorce law in secular legal systems. Her guest post below discusses British law and culture with respect to forced marriage and arranged transnational marriage.
Her work at Cork forms part of a 3-year thematic research project on Gender, Multiculturalism and the Law in Ireland, directed by her supervisor, Dr. Siobhán Mullally, Senior Lecturer and Co-Director Centre for Criminal Justice and Human Rights at University College Cork. Funding the project is the Irish Research Council in the Humanities and Social Sciences.
Called to the Irish Bar in 2006, Máiréad was awarded a visiting fellowship to the Feminism and Legal Theory Project at Emory Law School in Atlanta, Georgia, in Spring 2009 and a visiting fellowship to Osgoode Hall Law School, York University, Toronto, Canada, in Summer 2009, and next month will be a visitor at Queen Mary, University of London, England.
Máiréad dedicates her contribution to the Irish poet Eibhlín Dhubh Ní Chonaill, of whom she writes:

Eibhlín was born in 1743 in Derrynane, at left, in my county of Kerry, to a wealthy family with a tradition of producing women poets. She is best known as the author of the famous poem, Caoineadh Airt Ui Laoghaire, a 'keen,' or lament, for her dead husband. Eibhlín's husband Art was killed by a local magistrate who had offered to buy the Catholic noble's racehorse for an insultingly low price. When Art refused, thus flouting the Penal Laws designed to limit Catholics' civil and political rights and undermine their culture, he was murdered. He left behind his pregnant wife and two small sons. His murderers were never punished.
In choosing to commemorate Eibhlín Dhubh Ní Chonaill, I wanted to think about the many women harmed by colonisation and by the brutal law that inevitably accompanies it, and about the damaging echoes of colonisation which persist in countries, such as Ireland, that have gained their independence. In 1829, Eibhlín's nephew, the barrister Daniel O'Connell, finally secured Catholic Emancipation: for this achievement he is remembered as 'The Liberator'. O'Connell's statue, at right, is on Dublin's main street, which is named after him. There is no surviving picture of his aunt.

Today Ní Chonaill joins other transnational foremothers in IntLawGrrls' list below the "visiting from..." map at right.
Heartfelt welcome!

Law & forced & arranged marriages

(My thanks to IntLawGrrls for the opportunity to guest post on my work on forced marriage and transnational arranged marriage.)

My article called ‘Choice, Culture and the Politics of Belonging: The Emerging Law of Forced And Arranged Marriage’, recently published at 72 Modern Law Review 331 (2009), generally reflects my interest in the construction of the female citizen subject in legal discourse. (photo credit)

The majority of reported victims of forced marriage in the United Kingdom are young women of South Asian Muslim origin. Because of this fact, the forced marriage project must be read critically against the background of a wider politics of British Muslim belonging, which is linked to the counter-terrorism and social cohesion agendas. This politics operates to exclude some British Muslims from full membership in the ‘we group’ of British citizens. The ground for exclusion is that of ‘excessive’ or ‘difficult’ culture. Those British Muslim who are presented as most bound up in cultural practice, I argue, have become the British citizen’s ‘other’, and are subject to law’s discipline on that basis.

I trace the developing construction of the act of forcing another to marry as the exemplar performance of difficult culture, and as the exemplar rejection of British values – particularly the value of autonomy – in the major policy statements on forced marriage prevention.

Within the article are two points of critique:

► First, the focus on culture borne of the present need for the politics of belonging to define its other as a ‘cultural’ other leads to an effective culturisation of forced marriage. This means that much effective work has been done to tackle the considerable ‘internal cultural’ obstacles to exit from an unwanted marriage. The third-party and secondary-offender provisions of Lord Lester of Herne Hill QC's Forced Marriage (Civil Protection) Act 2007 are excellent examples. A focus on culture also, doubtless, sparked the involvement of specialist women’s organisations such as Southall Black Sisters in the drafting of the initial bill, and this is a good thing.

On the other hand, I argue that the focus on culture has been almost entirely to the exclusion of other socio-economic factors which also contribute to the difficulty of ‘exit’.

So, for instance, it is very telling that, at the same time that the Forced Marriage Act was being birthed, many specialist women’s refuges and domestic violence services – the support organisations which are invaluable to women seeking to leave a difficult family situation – were struggling to remain open for lack of adequate government funding. The focus on culture served to hide the state’s contribution to women’s oppression.

► A second point flows from the influence of the politics of belonging on the forced marriage project. We might imagine that, in this arena, the relative (particularly the father, because a deeply gendered construction of the violence of forced marriage is at play) who forces a young woman into marriage occupies the most precarious position in the schema of British Muslim citizenship. But some perhaps counter-intuitive exclusions also take place when, particularly in the new immigration legislation:

• the often vulnerable immigrating spouse in a transnational marriage is reduced to perpetrator status, by virtue of his or her ‘foreign’ culture; or
  
• the young British Muslim citizen is the subject of wide-ranging protective intervention which has the effect of disciplining those who choose ‘with’ culture and in favour of transnational arranged marriage.

Questions arise about who is ‘permitted’ to occupy the ‘victim slot’ in the forced marriage debate, and about whether the right to make certain marital choices, and to claim that right from a position of victimhood if it is denied, carry a ‘duty’ to make the ‘more British’ choice. Since the article was written, an idealised forced marriage victim has begun to emerge in media coverage of the issue. This is reflected in the newspapers’ presentation of the case of Dr. Humayra Abedin, a British National Health Service physician. Hers is one of the first of 23 successful applications so far under the new Forced Marriage (Civil Protection) Act 2007. (credit for photo of Abedin, center, with her solicitor, Anne-Marie Hutchinson, left)

What does the forced marriage project tell us about the citizenship of British Muslim women who do not sufficiently fit the model of victimhood: young, English-speaking, educated, thoroughly ‘Westernised’? Is there another subject position which they can legitimately occupy?