WHAT RIGHTS, IF ANY, DO THE UNBORN
HAVE UNDER INTERNATIONAL LAW?
Dr. John I. Fleming &
Dr. Michael G. Hains
P O BOX 1453, SYDNEY, N SW, 1043
Human Rights and the Unborn Child: CRC and Abortion
Go to PAGE 2 of article
Barristers and solicitors have traditionally looked to case law as an
important source of interpreting domestic law. With the increasing globalization
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
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
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
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." 
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
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
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. 
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.
[CONTINUE with PART II of this
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[Educational Materials on Abortion]
1 Charter of the United Nations, Article 56.
2 Ibid., Article 55 (c).
3 DJ Harris, Cases and Materials on International Law
Fourth Edition, (London: Sweet and Maxwell, 1991), 18.
4 Ibid., 604.
5 (1995) 183 CLR 273.
6 The precise status of various Declarations and
Conventions under Australian law is unclear, but it is fair to say that some
uncertainty exists as to their status. At one extreme if Parliament has merely
approved and repeated the treaty in legislation, without implementing it, the
Act will give rise to no rights: see Bradley v The Commonwealth (1973) 128 CLR
557 at 582, noted (1974) 48 ALJ 368. However, the High Court subsequently in
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 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 (cf the proposed Administrative Decisions (Effect of
International Instruments) Bill 1997). At the other extreme where a Convention
has been implemented it gives rise to enforceable rights beyond that of
legitimate expectations, eg the Racial Discrimination Act 1975 (Cth.)
(implementing the International Convention on the Elimination of All Forms of
Racial Discrimination) and the Sex Discrimination Act 1984 (Cth.) (implementing
the Convention on the Elimination of All Forms of Discrimination Against Women).
The Declarations and Conventions attached as schedules to the Human Rights and
Equal Opportunity Commission Act 1986 (Cth.) fall between these two extremes.
Thus their precise status under Australian law is unclear.
7 Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 at 287, 315. Followed in Krueger v The Commonwealth (1997)
146 ALR 126. Brennan J. in Mabo (No. 2) (1992) 175 CLR 1 at 42 referred to
international instruments as "legitimate and important influences on the
development of the common law, especially when international law declares the
existence of universal human rights."
8 (1995) 38 NSWLR 47.
9 (1971) 3 NSWDCR 25.
10 (1996) 136 ALR 16 (SLA).
11 The Vienna Convention on the Law of Treaties 1969
applies to the interpretation of the CRC because it entered into force after 27
January 1980, the operative date of the Vienna Convention. The Vienna Convention
expressly provides it does not apply retrospectively (see Article 4).
12 Australia has approved and repeated the United
Nations’ Charter in the Charter of the United Nations Act 1945 (Cth.). However
the Act does not implement the United Nations Charter into municipal law: see
Bradley v The Commonwealth (1973) 128 CLR 557 at 582, noted (1974) 48 ALJ 368.
See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
at 286-287, 298, 304, 315.
13 The Proclamation of Teheran, Final Act of the
International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N.
Doc. A/CONF. 32/41 (1968) notes: 2. The Universal Declaration of Human Rights
states a common understanding of the peoples of the world concerning the
inalienable and inviolable rights of all members of the human family and
constitutes an obligation for the members of the international community;
14 Peter Bailey, Human Rights, Australia in an
international context, Butterworths, 1990, 111.
15 On 22 December 1992 the Federal Attorney General
declared, under section 47 of the Human Rights and Equal Opportunity Commission
Act 1986 (Cth.), that the CRC was an "international instrument" concerning
"human rights and freedoms" under the Act.
16 Op. cit. n 6.
17 Article 2(b) of the Vienna Convention on the Law of
Treaties 1969 defines: 'ratification', 'acceptance', 'approval' and 'accession'
[to] mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty;
18 Australia signed the Convention on 22 August 1990 and
ratified it on 17 December 1990.
19 Preamble, Convention on the Rights of the Child 1989,
G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49
20 Op. cit. n 19, Article 6(1).
21 Op. cit. n 19, Article 6(2).
22 Op. cit. n 19, Preamble. See also footnote 26.
23 At signature or ratification a State may, but not
afterwards, make a reservation or interpretation: Paul Sieghart, The
International law of Human Rights, Clarendon Press Oxford, 1983, 36. Article
2(d) of the Vienna Convention on the Law of Treaties 1969 defines a reservation
. . . a unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State;
24 According to United Nations ratification information
Australia only placed one reservation on the CRC, being: Australia accepts the
general principles of article 37. In relation to the second sentence of
paragraph (c), the obligation to separate children from adults in prison is
accepted only to the extent that such imprisonment is considered by the
responsible authorities to be feasible and consistent with the obligation that
children be able to maintain contact with their families, having regard to the
geography and demography of Australia.
Australia, therefore, ratifies the Convention to the extent that it is unable
to comply with the obligation imposed by article 37 (c). [United Nations, Treaty
Series, vol. 999, p. 171 and vol. 1057, p. 407]
25 Hansard, Australian Senate, 26 October 1989, 2309.
26 For example, Malta and Senegal. In the United Nations
ratification information concerning the CRC, Ecuador expressly declared:
In signing the Convention on the Rights of the Child, Ecuador reaffirms . . .
[that it is] especially pleased with the ninth preambular paragraph of the draft
Convention, which pointed to the need to protect the unborn child, and believed
that that paragraph should be borne in mind in interpreting all the articles of
the Convention, particularly article 24. While the minimum age set in article 38
was, in its view, too low, [the Government of Ecuador] did not wish to endanger
the chances for the Convention’s adoption by consensus and therefore would not
propose any amendment to the text. [Doc. A/RES/44/25]
The Holy See also declared:
. . . that the Convention represents an enactment of principles previously
adopted by the United Nations, and once effective as a ratified instrument, will
safeguard the rights of the child before as well as after birth, as expressly
affirmed in the ‘Declaration of the Rights of the Child’ [Res. 136 (XIV)] and
restated in the ninth preambular paragraph of the Convention.
The Holy See remains confident that the ninth preambular paragraph will serve
as the perspective through which the rest of the Convention will be interpreted,
in conformity with article 31 of the Vienna Convention on the Law of Treaties of
23 May 1969. [Doc. A/RES/44/25] According to a UN Glossary of Terms "states make
‘declarations’ as to their understanding of some matter or as to the
interpretation of a particular provision. Unlike reservations, declarations
merely clarify the state’s position and do not purport to exclude or modify the
legal effect of a treaty. Usually, declarations are made at the time of the
deposit of the corresponding instrument or at the time of signature." These two
quotes were the only references in the formal ratification information
concerning the unborn.
27 Sharon Detrick compiler and editor, The United
Nations Convention on the Rights of the Child, A Guide to the "Travaux
Préparatoires", (Dordrecht: Martinus Nijhoff Publishers, 1992), 109.
28 Article 1 of CRC states:
For the purposes of the present Convention, a child means every human being
below the age of eighteen years unless, under the law applicable to the child,
majority is attained earlier.
29 Sharon Detrick. op. cit. n 27, 110.
31 Carl August Fleischhauer, The Legal Counsel, 9
December 1988, Response of the Legal Counsel E/CN.4/1989/48, Annex p. 144,
Sharon Detrick. op. cit. n 27, 113.
32 Philip Alston, "The Unborn Child and Abortion Under
the Draft Convention on the Rights of the Child", Human Rights Quarterly 12
(1990) 156, 177.
33 Vienna Convention on the Law of Treaties 1969,
Articles 2(1)(a) and 31(2).
34 Vienna Convention on the Law of Treaties 1969,
35 Cf. evidence cited in Sharon Detrick, op. cit. n 27,
109. See also footnote 26.
36 There was no mention of abortion in connection with
privacy (Article 17) during the discussions on the International Covenant on
Civil and Political Rights 1966.
38 §112 A/3764.
39 30 votes against the amendment, 20 for and 17
abstentions: §119 A/3764.
40 §112 A/3764.
41 Malta proposed: In article 1, after the words ‘human
being’, add the words ‘from conception’. [E/CN.4/1989/WG.1/WP.9]
Senegal's proposal was: According to the present Convention a child is every
human being, from his conception until at least, the age of 18 years . . .
42 Sharon Detrick, op. cit. 27 at 118.
43 Sharon Detrick, op. cit. 27 at 109.
44 The Vienna Convention on the Law of Treaties 1969,
45 Schedule 3 Human Rights and Equal Opportunity
Commission Act 1986 (Cth.).