What Rights, If Any, Do the Unborn Have Under International Law?

by Dr. John I. Fleming, BA, ThL (Hons), PhD., Dr. Michael G. Hains, LLB (Hons), Ph.D.

Introduction

Barristers and solicitors have traditionally looked to case law as an important source of interpreting domestic law. With the increasing globalisation of world trade, tourism, the breaking down of language barriers, and improvements in international relations international law has emerged as a further important influence. International law has traditionally focused on governing relations between independent nation states. However, in the aftermath of the Second World War the United Nations was formed on the basis of a Charter which committed the members of the UN to "take joint and separate action in cooperation with the Organization" to achieve "the purposes set forth in Article 55 [of the Charter]". Article 55 committed the UN to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

One important consequence of this major development in international relations has been the "demise of Oppenheim’s doctrine that ‘States solely and exclusively are the subject of International Law’ ... [I]t is [now] ... the case that inter-state treaties are increasingly concerned with the ‘trans-national’ affairs ... of private individuals and companies." DJ Harris, in a later discussion of the activities of the UN Commission on Human Rights, also points out that "the idea that the treatment of a state’s own nationals is a matter within its own jurisdiction has been abandoned."

The practice of the Commission shows clearly the acceptance by the states, as they respond without question to allegations against them, that the protection of human rights is now within the domain of international law.

A further important consequence of these developments in international law has been the increasing number of Declarations and Conventions which can potentially affect our municipal laws. The areas of domestic law which are potentially influenced are immense; they include administrative law, family law especially custody matters, discrimination laws, medical negligence, succession, immigration and refugee law, criminal law and human rights.

Practitioners need to be aware of how this may be relevant. The High Court in the Minister for Immigration and Ethnic Affairs v Teoh held that entry into a treaty by Australia creates a "legitimate expectation"—in administrative law—that the Executive Government and its agencies will act according to the treaty, even where those terms were not incorporated in Australian law. Moreover, there is a presumption that the legislature intends to give effect to Australia’s obligations under international law. Where a statute or subordinate legislation is ambiguous it should be construed in accordance with those obligations, particularly where they are undertaken in a treaty to which Australia is a party. These rulings of the High Court can profoundly influence many aspects of our municipal law. We will look at these issues in the context of the rights of the unborn, if any, under international law and there implications for Australian domestic law.

In 1996 considerable public controversy about the legality of abortion arose when the High Court of Australia was called upon to consider an appeal from the judgment of the New South Wales Court of Appeal in CES v Superclinics (Australia) Pty Ltd. The Court of Appeal, by majority, approved, but did not apply, the principle in R v Wald Devine J. in that case had held that: first, an abortion may be lawful if the person performing the abortion, or the woman upon whom it is performed, has an honest belief on reasonable grounds that what was done was necessary to preserve the woman involved from serious danger to her life, or physical or mental health, which the continuance of the pregnancy would entail, not merely the normal danger of the pregnancy and childbirth; and secondly a woman upon whom an abortion is performed is not guilty of aiding or abetting that act if she honestly and reasonably holds the appropriate belief, irrespective of the beliefs of the person performing the act. The High Court granted Special Leave to Appeal on 15 April 1996 and the Court subsequently granted representative interest groups leave to intervene. The proceedings were, however, settled during the course of argument and the Court was not called upon to give judgment. But the case highlights an instance where international law may be relevant to domestic laws. The issue of the unborn has again arisen in the context of the United Nations Convention on the Rights of the Child 1989.

On 28 August 1995 the Attorney-General of Australia referred to the Australian Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission ("the Commissions") "for inquiry and report, matters relating to children and young people and the legal process."

In May 1997 a Draft Recommendations Paper entitled "A matter of priority: Children and the legal process" (the "Paper") was jointly published by the Commissions. This article, based on the Authors’ Submission to the Commissions, considers the rights of the unborn under international law.

The Commissions adopted the definition of "child" used in the United Nations Convention on the Rights of the Child 1989, ("CRC") i.e. a person under the age of eighteen. Despite that definition, the Paper does not consider the rights of all children under the age of eighteen. The Paper has failed to discuss the rights of unborn children and the issue of abortion. This is a regrettable oversight which we hope will be reversed in the next stage.

The Paper emphasises the importance of the CRC but fails to acknowledge that it must be interpreted in the light of the Charter of the United Nations, the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, the Declaration of the Rights of the Child 1959, and other fundamental human rights documents.

The rights of the unborn were discussed in the drafting stages of the Universal Declaration of Human Rights 1948 as well as in the drafting stages of the CRC. The matter is also referred to in the International Covenant on Civil and Political Rights 1966. That this subject did not merit discussion by the Commissions is, therefore, a cause for great concern.

The importance of the abortion issue in the Australian legal context is underscored by the fact that the Declaration of the Rights of the Child 1959 was attached as a Schedule to the Human Rights and Equal Opportunity Commission Act 1986 (Cth.) following discussions with the Right to Life Association. As a consequence the Declaration of the Rights of the Child 1959, is part of Australian municipal law.

Human rights and the unborn child

CRC and abortion

The CRC, adopted by the General Assembly of the United Nations on November 20, 1989, and ratified by Australia, reiterates the positions taken by the Universal Declaration of Human Rights 1948, which have been adopted and proclaimed by Australia, about the "equal and inalienable rights of all members of the human family" as the "foundation of freedom, justice and peace in the world", and that the "United Nations has proclaimed that childhood is entitled to special care and assistance". In particular the CRC asserts: "States Parties recognize that every child has the inherent right to life" and that "States Parties shall ensure to the maximum extent possible the survival and development of the child."

Regarding abortion, the CRC bears 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’ ". Does it necessarily follow from this that the right to life of the pre-born child is protected? Senator Gareth Evans, the then Minister for Foreign Affairs and Trade, told the Australian Senate on October 26, 1989 that the Australian Government understands the reference to the rights of the child "before as well as after birth" in a way that does not preclude abortion. However, Australia made no such reservation or interpretation at the time of ratification. Acknowledging that the reference to the rights of the child "before as well as after birth" does appear in the Preamble in the then draft Convention, "at the same time a statement in the travaux préparatoires - the preparatory materials - makes it clear that the contentious issue of the child’s rights before birth is a question to be determined by individual states parties."

We believe Senator Evans’ statement on this matter to be seriously misleading. When they were debating this aspect of the Preamble, some delegations supported it precisely because it offered protection to the unborn child. Other delegations, of which Australia was one, opposed "what in their view amounted to re-opening the debate on this controversial matter [abortion] which, as they indicated, had been extensively discussed at earlier sessions of the Working Group with no consensus achieved. It was also pointed out by some delegations that an unborn child is not literally a person whose rights could already be protected, and that the main thrust of the Convention was deemed to promulgate the rights and freedoms of every human being after his birth and to the age of 18 years." (Emphasis added)

As a consequence of the debate they amended the Preamble such that the text would no longer say "Recognising that . . . " but "Bearing in mind that . . . ", as indicated in the Declaration of the Rights of the Child 1959, "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". Further, the following statement was, by agreement, placed in the travaux préparatoires: "In adopting this preambular paragraph, the Working Group does not intend to prejudice the interpretation of article 1 or any other provision of the Convention by States Parties." No doubt this is the statement to which Senator Evans referred. However, this was not the end of the matter.

The representative of the United Kingdom sought "confirmation from the Legal Counsel that the statement would be taken into account if, in the future, doubts were raised as to the method of interpreting article 1." That advice was annexed to the report of the Working Group. It gives no such assurance and by no means allows the matter of abortion to be automatically reserved to the judgment of states parties.

The Response of the Legal Counsel certainly allows such an interpretative statement to be included in the travaux préparatoires. However, the Legal Counsel cautioned that:

seeking to establish the meaning of a particular provision of a treaty, through an inclusion in the travaux préparatoires may not optimally fulfill the intended purpose, because, as you know, under article 32 of the Vienna Convention on the Law of Treaties, travaux préparatoires constitute a "supplementary means of interpretation" and hence recourse to travaux préparatoires may only be had if the relevant treaty provisions are in fact found by those interpreting the treaty to be unclear.

It is by no means certain that those international courts that have to interpret international law will find the treaty unclear, especially as it is to be understood, not by itself, but with reference to and guided by the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and other international covenants.

In his account of the abortion debate, in the context of the CRC, Philip Alston claims that:

the acceptance of a preambular paragraph recognizing that "the child . . . needs special safeguards and care, including appropriate legal protection, before as well as after birth" cannot be interpreted as an indirect reversal of that explicit rejection [of proposals to recognize the right to life of the unborn]. To do so would be to attribute to the preamble an importance considerably in excess of that which may reasonably be accorded to such broad policy pronouncements.

Alston believes that the CRC leaves the matter of abortion as an open question such that those States that wish to prohibit abortion and those that wish to approve it are on an equal footing. He believes that existing international human rights law does not provide for the status of the unborn child, and that the CRC is in conformity with that position. But Alston overlooks the fact that a reference in the Preamble is part of the treaty itself, whereas the travaux préparatoires is a supplementary means of interpretation to be used in limited circumstances.

Alston is simply not entitled to this conclusion on the basis of the facts that he, himself, has outlined. As we have already noted, some delegations favoured the inclusion of the words "the child . . . needs special safeguards and care, including appropriate legal protection, before as well as after birth" precisely because they believed that it offered protection to the unborn child while others opposed it because they saw it "re-opening the debate on this controversial matter (abortion)." The fact is that with a minor change in words ("Recognising that" was changed to "Bearing in mind that") these contentious words were included in the Preamble of the CRC. That clearly means the abortion issue was left on the table as both those who opposed its inclusion and those who favoured its inclusion have testified.

In any case, since the CRC has to be interpreted in the light of and consistently with the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966 then the question of the rights of the unborn child has to be resolved against a broader landscape than the CRC seen in isolation. Alston’s contention that "existing international human rights law" does not recognise the right to life of the unborn would, if it were true, help those who deny that the right to life of the unborn is recognised by the CRC.

However, in this article, we will argue that Alston’s contention, far from being certain, is almost certainly false.

First, during the drafting of the International Covenant on Civil and Political Rights 1966 an amendment, to article 6, submitted by Belgium, Brazil, El Salvador, Mexico and Morocco led to a discussion as to whether the right to life should be protected by law "from the moment of conception". "Those supporting the amendment maintained that it was only logical to guarantee the right to life from the moment life began." The amendment was rejected.

It was pointed out that the legislation of many countries accorded protection to the unborn child. On the other hand, the amendment was opposed on the grounds that it was impossible for the State to determine the moment of conception and hence, to undertake to protect life from that moment. Moreover, the proposed clause would involve the question of the rights and duties of the medical profession. Legislation on the subject was based on different principles in different countries and it was, therefore, inappropriate to include such a provision in an international instrument.

The toleration of abortion played no part in the rejection of the amendment.

Secondly, in the context of the CRC, Malta and Senegal proposed an amendment to draft Article 1 to explicitly protect the rights of the unborn child from conception. These proposals were not rejected by the Member States but were withdrawn by Malta and Senegal "in the light of the text of preambular paragraph 6 as adopted" which referred to the rights of the child "before as well as after birth."

Thirdly:

The representative of Italy observed that no State was manifestly opposed to the principles contained in the Declaration of the Rights of the Child and, therefore, according to the Vienna Convention on the Law of Treaties, the rule regarding the protection of life before birth could be considered as "jus cogens" since it formed part of the common conscience of members of the international community. (Emphasis added.)

Jus cogens (or ius cogens) is a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The right to life of all human beings has the nature of an intransgressible norm already contained in the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the Declaration of the Rights of the Child 1959. In other words, under international law the unborn child is protected and it was not permissible at this late stage to attempt to allow a liberal abortion agenda under the CRC.

Fourthly, the Declaration on the Rights of the Child 1959, which carries the same preambular reference to the rights of the child before as well after birth, is part of our municipal law. In his statement to the Senate Senator Evans did not take account of these legal obligations. This, however, does not absolve the Commissions from taking seriously the issue of the rights of the unborn in the context of Australia’s human rights obligations. Moreover, as we have established, these issues fall within the Commissions’ Terms of Reference and must be addressed.

Finally, explicit protection is extended to the unborn child in the International Covenant on Civil and Political Rights 1966 and in the Convention on the Prevention and Punishment of the Crime of Genocide 1948. These protections will be discussed later in the Article.

The right to life of the unborn and international law

Within what limits may a state party provide for legal abortion? To find the answer to this question, full account has to be taken of the provisions of the United Nations Charter, the Universal Declaration of Human Rights 1948 that seeks to amplify Article 55 of the United Nations Charter, and the International Covenant on Civil and Political Rights 1966. Article 55 commits the United Nations to "promote respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

The Universal Declaration of Human Rights 1948 is founded upon the notion that there are human values and these values are inherent in the human individual. In the Preamble the Declaration states that "the foundation of freedom, justice and peace in the world" is the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family".

As far as the Declaration is concerned there are human values inherent in all members of the human family because of their "inherent dignity". Since "dignity" is about true worth or excellence ["dignus" L. means worthy], and, in the context, human worth, then the claim for the inherent dignity of human beings is a claim for basic human values.

Further, the Preamble links human dignity, human values with human rights that it describes as "inalienable rights", rights of which we may not be deprived and cannot deprive ourselves. I must not be sold into slavery and I am to be restrained from selling myself into slavery.

These human rights which reflect human values must, says the Preamble, "be protected by the rule of law" otherwise humankind may be driven, "as a last resort, to rebellion against tyranny and oppression". This protection of the rule of law is necessary not only for human beings to live together peaceably within the State, but also so that nations may live together in peace.

The Universal Declaration of Human Rights 1948 presents itself to the world as "a common standard of achievement for all peoples and all nations" and as a guide for every structure in society and for every individual in order that the rights identified in the Declaration may have "their universal and effective recognition and observance" secured.

Article 1 of the Declaration asserts certain things about human beings that affect the understanding of the rest of the document. Human beings, it says, "are born free and equal in dignity and rights". This value of equality of human beings, this injunction not to show preference between individuals in the recognition of "the rights and freedoms set forth in this Declaration", is further specified in Article 2. In particular, in the entitlement to the rights and freedoms in the Declaration there is to be no distinction of any kind, "such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

In this way the Declaration excludes discrimination against the elderly and the very young, the physically and mentally disabled and the chronically ill. All have equal claim to the rights and freedoms enunciated in the Declaration.

Article 3 of the Declaration begins the articulation of the human values to be defended in terms of human rights. "Everyone has the right to life, liberty and the security of person." Thus, human life is held to be both inviolable and inalienable. The Declaration does not begin with hard cases or exceptions, but with the general proposition which concerns the value of human life. Noting the order of the rights articulated is also interesting - life first, then freedom [liberty], and then security of person. Unless the State can guarantee the right to life then there are no meaningful rights to freedom or to security of person. The right to life is logically prior to considerations of the quality of the individual’s life.

Does this right to life extend to the unborn child? When Article 3 of the Universal Declaration of Human Rights 1948 was being drafted there were several proposals for the provision of an explicit protection for the unborn child. These proposals were certainly debated.

In the event, none of the relevant proposals was pushed to a vote and the final text stated only that "everyone had the right to life . . ."

The fact that the matter was not pushed to a vote does not mean that one can conclude that the rights of the unborn child are not covered by the Universal Declaration of Human Rights 1948. The text clearly states that everyone has the right to life, and that what is meant by everyone is "every member of the human family", that is, all human beings. Here is the nub of the matter. Some of those nations who opposed an understanding of the CRC’s Preambular reference to "the child, by reason of his physical and mental immaturity" needing "special safeguards and care, including appropriate legal protection, before as well as after birth," as including abortion did so on the basis of attitudes which violate explicit provisions of the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966.

That opposition was on the basis "that an unborn child is not literally a person whose rights could already be protected, and that the main thrust of the Convention was deemed to promulgate the rights and freedoms of every human being after his birth and to the age of 18 years." (Emphasis added) These are mere assertions of opinion, opinion which is not universally shared in the way that the various human rights instruments are universally agreed, and in fact is opinion which is in conflict with universally agreed human rights instruments.

Michel Meslin, however, has shown that "the concept of person is one of the most difficult concepts to define - even though it is always burdened with hopes and revendications. It is neither a simple fact, nor evident throughout history." The briefest of surveys of the literature provides ample evidence to support Meslin’s contention. Concepts of personhood based upon science and philosophy abound. For some, personhood begins at syngamy. For others it is at fourteen days after fertilisation, twelve weeks, twenty-eight weeks, birth, three months after birth and so on. There is no agreement in science or philosophy about when personhood begins or where it ends or how it should be defined. The only agreement one finds is in the embryological text books, that human life begins at fertilisation. It is the fertilisation of a human egg by a human sperm that produces a member of the human species, the human family. The main results of fertilisation are:

(a) restoration of the diploid number of chromosomes, half from the father and half from the mother. Hence, the zygote contains a new combination of chromosomes, different from both parents; (b) determination of the sex of the new individual. An X-carrying sperm will produce a female (XX) embryo, and a Y-carrying sperm a male (XY) embryo. Hence, the chromosomal sex of the embryo is determined at fertilization; (c) initiation of cleavage. Without fertilization the oocyte usually degenerates 24 hours after ovulation.

Anthony Fisher has assembled other citations from many medical and biological textbooks, all of which underscore the scientific consensus that "the human embryo is a genetically human, discrete and an alive unit, organically single and individual, with a self-contained power to organise his or her own growth, multiplication and differentiation in a way that ordinarily leads to a human adult." R. Yanagimachi begins his essay on "Mammalian Fertilization" with the statement: "Fertilization in mammals normally represents the beginning of life for a new individual."

On the basis, then, of this standard text book definition of fertilisation it may reasonably be concluded that the embryo is a "new individual", genetically different from his or her parents, and containing all the necessary genetic information for further development. This embryological understanding of the beginning of human life has been expressed in various formulations. The Senate Select Committee On The Human Embryo Experimentation Bill 1985 [Australia] defined the human embryo:

The Committee, in adopting the usage ‘embryo’ to describe the fertilised ovum and succeeding stages up to the observation of human form, means to speak of genetically new human life organised as a distinct entity oriented towards further development.

The testimony of C.R. Austin that the "stage which marks the start of a person is a matter of opinion" is matched by Roger Short’s contention that the benchmark fourteen days, for which he argued, was nevertheless "a prejudice" and "purely arbitrary".

We conclude that there is no agreed basis for dividing up the human family into persons and nonpersons, but there is an agreement from science that from fertilisation we all share a common humanity, that we are all members of the "human family", to use the words of the Universal Declaration of Human Rights 1948. This latter point has been conceded by strong supporters of the ‘pro-choice’ position, especially Peter Singer, Michael Tooley and Helga Kuhse. The attempts to disenfranchise some members of the human family from moral consideration has lead to justifications of intolerable abuses of human rights including slavery, genocide, abortion, infanticide, non-voluntary sterilisation, non-voluntary and voluntary euthanasia of other human beings.

In the current climate we need to appreciate that the same fashionable philosophical notions of human personhood used to justify abortion are also being used to justify the killings of children up to three to six months after birth. If the killing of a child after birth is considered to be in violation of our human rights obligations, then the killing of the child before birth on the same philosophical justification must also be considered a violation of that child’s right to life.

Denying personhood used to justify abuse of human rights

The eugenic impulse to kill fetuses and other members of the human family who have disabilities is still in evidence in the late twentieth century and is used together with a utilitarian moral philosophy to deny personhood, and therefore moral consideration, to those classes of human beings who constitute a burden to the community, a burden which it is often unwilling to accept. Abortion can then be advanced to parents who may feel unable to cope with that burden alone and without the support of the wider community.

There is a connection between the self-interest of communities and the line to be drawn between persons and non-persons. That self-interest may be driven by eugenic, economic, social and political factors such that those a society wishes to exclude are deemed to be non-persons. History is replete with examples of this phenomenon. Thus could Chief Justice Taney of the United States Supreme Court exclude Dred Scott (a Negro slave) from personhood, could the Egyptian Pharaohs exclude the Israelites, could Hitler exclude Jews, Gypsies, the ‘degenerate’ and the asocials from personhood, could the British tolerate the slave trade, and could the European Australians liquidate and repress the Aborigines.

The notion that certain classes of persons are non-persons is a not uncommon opinion. The Canada Indian Act 1880 states that "the term person means an individual other than an Indian".

In the Canada Franchise Act 1885, we learn that "[a person] is a male person, including an Indian and excluding a person of Mongolian or Chinese Race." Here is progress; in only five years Indians were upgraded to personhood and Asians are called persons in the very clause denying them personhood. By 1925, Canadian legislation had determined that all races-and women-are persons. Changes in Canada continued. By 1980, the government had recognized the Inuit, or Eskimos, as Indigenous Peoples with entitlement to lands. And the nation had developed a cadre of advocates dedicated to the empowerment of the disadvantaged.

The Universal Declaration of Human Rights 1948, following the United Nations Charter, rejects discrimination against any members of the "human family", and requires the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family" (Emphasis added). As far as human personhood is concerned, the Declaration does not allow discrimination on the basis of human personhood. Article 2 asserts firmly that "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind . . ." (Emphasis added) and Article 30 commands that "nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein." Article 6 specifically deals with the matter of the division of human beings into persons and non-persons in these terms:

Everyone has the right to recognition everywhere as a person before the law.

It is true that the practice of abortion is widespread and, in many countries, legal at least in some circumstances. There is, however, a mismatch between the human rights requirements of international law and the practice of individuals and nation states in the same way that there is a mismatch between the rights of women and the practice of individuals and nation states.

If the human rights of the unborn child are to be upheld in law there will need to be with it an acceptance of the obligation to provide the social, economic, and moral support that women need when faced with an unwanted pregnancy. The hard cases need to be seen as hard cases against the background of the inalienable right of the fetus to live (a right that the fetus shares with his or her fellow human beings) and the rights of everyone (in this context especially women) "to a standard of living adequate for the health and well being of himself and of his family . . . and the right to security in the event of unemployment . . . or other lack of livelihood in circumstances beyond his control." And further,

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 6(1) of the International Covenant on Civil and Political Rights 1966 guarantees that "every human being has the inherent right to life." The right to life is the only right in the Convenant that is expressly stated to be "inherent" to everyone. The Human Rights Committee has described it as the "the supreme right." It is also one of the rights which cannot be derogated from, even in a "time of public emergency which threatens the life of the nation." In its General Comment, on Article 6, the Human Rights Committee has:

". . . noted that quite often the information given concerning article 6 has been limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly." And the "expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures." (Emphasis added.)

That international law does envisage human rights protection for the unborn can be seen in the provision dealing with capital punishment in the International Covenant on Civil and Political Rights 1966:

Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. (Emphasis added)

In this provision, a state may execute a woman only when she is not pregnant. The innocent are not to die along with the guilty. Indeed the travaux préparatoires of the International Covenant on Civil and Political Rights 1966 makes this abundantly clear:

The principal reason for providing in paragraph 4 [now Article 6(5)]of the original text that the death sentence should not be carried out on pregnant women was to save the life of an innocent unborn child.

Here is an explicit recognition in international law that human rights enjoyed by every member of the human family includes the unborn. This fundamentally humane principle was reflected in the common law in England and Australia when each country had the death penalty.

Abortion advocates, however, have asserted that when Article 1 of the Universal Declaration of Human Rights 1948 says that "all human beings are born free and equal in dignity and rights", this means that "persons are recognized in international law, as human beings having been born." This deduction is without merit in the light of the detailed arguments we have already adduced. It cannot, in good faith, reasonably be deduced from Article 1, read in the context of the whole of the document and in the light of the Covenants which have further specified human rights, that unborn human beings are not persons with rights. The natural meaning of the text, in the light of the other references in the relevant provisions of international law, is that human beings without distinction are born free and equal in dignity and rights because as members of the human family they have had that status from the beginning. The interpretation offered by abortion advocates is about as helpful as deducing from a statement that a baby is born human that it was not human before birth.

Lastly, the use of abortion as a means of genocide is raised in the Convention on the Prevention and Punishment of the Crime of Genocide 1948. In Article II the Convention defines the "odious scourge" of genocide to include "killing members of the group" and "imposing measures intended to prevent births within the group." The latter inclusion explicitly recognises the right to life of the unborn. In the same article genocide is conceived in terms of an intention "to destroy, in whole or in part, a national, ethnical, racial or religious group". The question is, to what extent, if at all, does this apply to the practice of abortion in contemporary society?

Much depends on what should be understood by the term "in whole or in part of a national group". The moral justification most frequently advanced for abortion is that, as a group or category of human beings, the unborn are not persons and accordingly have no right to life to protect. But, as we have already argued, the unborn are part of the human family. And the human family is itself broken down into nation states or groups. The unborn are, then, a sub-group of a national group. If the unborn, contrary to Article 6 of the Universal Declaration of Human Rights 1948 and Articles 6 and 16 of the International Covenant on Civil and Political Rights 1966, are defined, as a group, as non-persons and therefore beyond moral and legal protection, does the crime of genocide apply to those countries that fail to give protection to that part of the national group?

Even more obviously, "disabled persons" are recognised in international law as a group which forms part of a nation. These persons "have the same civil and political rights as other human beings" and must be "protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature." If it is legally permissible to end the life of unborn human beings with disabilities, and medical tests are routinely applied to pregnant women to discover any fetal abnormality, would this not amount to the crime of genocide against the disabled unborn?

The Genocide Convention speaks of "imposing measures intended to prevent births within the group." Does this mean that the Genocide Convention is limited only to cases where abortion is imposed on women? The answer to this question is no. Since the Genocide Convention defines genocide in terms of "killing members of the group", since "measures intended to prevent births" clearly includes induced abortion, and since abortion involves the intentional killing of the unborn, then the Convention’s reference to "imposing measures" cannot be interpreted in a way that would limit its application to women who are forcibly aborted. And in any case, the Convention’s definition of genocide includes "killing members of the group". This is sufficient by itself to raise serious questions as to whether the practice of abortion is genocide.

What often makes a group vulnerable to genocide is the denial of human rights, precisely what has occurred to the unborn in Australia and in many other countries.

The questions that supporters of legal abortion need to address, then, are these: how is it not genocide to define some members of the human family as non-persons, thereby allowing them to be directly and intentionally killed by induced abortion? How is it not genocide to legally prescribe and actively promote the induced abortion of human beings on the grounds of their actual or perceived disability? If it could be shown that homosexuality was genetically influenced, and homosexuality was thought of as a disability, would the routine abortion of homosexuals be considered the crime of genocide against homosexuals?

Conclusion

The member nations of the United Nations are committed to the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" by way of a pledge.

All members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55.

What we have here is the idea of a consensus gentium, an agreement among the nations, a consent to be bound by certain values expressed as human rights. This doctrine of consent involves the idea that the "basis of obligation of all international law, and not merely of treaties, is the consent of States."

Australia has bound itself to membership of the United Nations, to the United Nations Charter, to the Universal Declaration of Human Rights 1948, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the International Covenant on Civil and Political Rights 1966, the Convention on the Rights of the Child 1989, and the Declaration of the Rights of the Child 1959. These documents contain strong commitments to the protection of human rights of all without any distinction whatsoever. Discrimination because of age, personhood, status and disability are all examples of unjust discrimination, including when they are applied to unborn children.

There are, of course other important obligations under international law which, as we have already suggested, will influence municipal law in many other areas of the law. However, it is hard to imagine a more neglected area of human rights discussion, from the perspective of international law, than the rights of the unborn.

The Commissions have continued this neglect by their conspicuous failure to discuss these issues which they are obliged to discuss. Any domestic cases involving the unborn whether that be abortion, succession, medical negligence or the criminal law must now have regard to our obligations under international law. Put succinctly, there is a case to be heard for the unborn based on Australia’s existing human rights obligations and that now is the time to adjust practice to principle rather than continuing to compromise principles to bring "principle" in line with practice.

Dr John I Fleming, BA, ThL (Hons), PhD.
Director
Southern Cross Bioethics Institute
PO Box 206
Plympton, SA 5038
AUSTRALIA
Tel: + 61 8 8297 0022
Fax: + 61 8 8371 1391
Mobile: 0419 819 452
Email: [email protected]

Dr. Michael G Hains, LLB (Hons), Ph.D.
Attorney
Research Fellow
Southern Cross Bioethics Institute
Adjunct Lecturer in Law, University of NSW
Visiting Fellow University of Melbourne (1996)
Email: [email protected]

Article published in the December 1997 issue of the Australian Bar Review.

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