International human rights law, devolution and democratic legitimacy: the case study of abortion reform in Northern Ireland

Abstract

This article uses the case study of abortion law reform to critically assess what is required to secure democratic legitimacy in complying with international human rights law (IHRL) obligations. The case study exposes the inadequacy of the devolution arrangement. The article critiques the methodology through which the views, interests and priorities of the two systems are upheld and protected: a mere bifurcation of competence over law and decision-making. The devolution framework frames democratic legitimacy as requiring the representation of interests of only two governance systems to be balanced – the devolved people of Northern Ireland versus the collective interests of the United Kingdom (UK). Other systems of people with separate interests should be identified and represented. The article assesses the role and challenges that IHRL presents in securing democratic legitimacy. On the one hand, it feeds into an iterative process of ensuring that the voices of those most affected by the law at issue are at the forefront of the law-making process – it facilitates their engagement with the state apparatus. On the other hand, the incorporation of IHRL must be consistent with the aims of the devolution framework: to balance the democratic will of the people of Northern Ireland and the collective will of the UK. If we work from the premise that IHRL is democracy-enhancing in itself, then we need to prioritise inclusive processes for deciding the content of those norms and ensuring they are practically implemented. Devolution politics should not form a barrier to this overall goal.