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

CONTENTS

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.

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.

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. [7] 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. [8] The Court of Appeal, by majority, approved, but did not apply, the principle in R v Wald [9] 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 [10] 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, [11] ("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, [12] the Universal Declaration of Human Rights 1948, [13] 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.

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 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 [36] 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.

Thirdly:

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.

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 ARTICLE]

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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 (1989).

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 to mean:

. . . 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.

30 Ibid.

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, Article 32.

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.

37 A/C.3/L.654.

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 . . . [E/CN.4/1989/WG.1/WP.17]

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, Article 53.

45 Schedule 3 Human Rights and Equal Opportunity Commission Act 1986 (Cth.).

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