alston, crc and abortion

The Unborn Child and Abortion under the Draft Convention on the Rights of the ChildAuthor(s): Philip AlstonSource: Human Rights Quarterly, Vol. 12, No. 1 (Feb., 1990), pp. 156-178Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/762174 .

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HUMAN RIGHTS QUARTERLY

The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child*

Philip Alston

i. Introduction

The great majority of international human rights instruments, although clearly recognizing the right to life, are silent on the issue of whether or not some or all of the protections accorded under the relevant provisions should also be accorded to the unborn child. This was also the case with respect to the draft Convention on the Rights of the Child' during the final session of the Working Group of the Commission on Human Rights which was primarily responsible for drafting the text of the Convention.2 The abortion issue was raised v?ery directly at the session in which the draft was given its second

* The term "fetus" and "unborn child" are used interchangeably in this article in accordance with common usage. The use of the latter term does not imply recognition of the position that for legal purposes, a fetus is a child per se.

1. The text of the draft Convention, as adopted by the Commission on Human Rights, is contained in U.N. Doc. E/CN.4/1989/29 and Corr. 1 (1989) (hereinafter Draft Convention). On the draft Convention in general see The New Convention on the Rights of the Child, 14 Australian J. of Early Childhood 1060 (1989); Price Cohen, Elasticity of Obligation and the Drafting of the Convention on the Rights of the Child 3 Connecticut J. Int'l L. 71 (1987); Bennet, A Critique of the Emerging Convention on the Rights of the Child, 20 Cornell Int'l L. J. 1 (1987); Anderson, Toward a Global Law of the Family: The United Nations Draft Convention on the Rights of the Child 1 Anthropos 125 (1985); Law and Status of the Child (Pappas, ed., 2 vols. 1983); and Daoudi, Law Codification des droits de I'enfant: Analyse des prises de position govermentales, in La protection internationale des droits de I'enfant, 21 (Torrelli ed. 1983).

2. The Working Group met for the first time in 1979. Its annual reports have been reproduced as follows (in order of session, year and U.N. Doc. no.): 1, 1979, E/CN.4/L. 1468; 2, 1980, E/CN.4/L. 1542; 3, 1981, E/CN.4/L. 1575; 4, 1982, E/1982/12/Add.1; 5, 1983, E/CN.4/ 1983/62; 6, 1984, E/CN.4/1984/71; 7, 1985, E/CN.4/1985/64; 8, 1986, E/CN.4/1986/39; 9, 1987, E/CN.4/1987/25; 10, 1988, E/CN.4/1988/28; and 11, 1988, EICN.4/1989/48.

Human Rights Quarterly 12 (1990) 156-178 o 1990 by The Johns Hopkins University Press



1990 Abortion Under the Children's Convention 157

and final reading before being sent on to the General Assembly3 for possible adoption in fall 1989. After protracted public debate and intensive behind- the-scenes negotiations, it was agreed not to deal with the matter in the operative part of the Convention but rather to include the following provision in the sixth preambular paragraph:

Bearing in mind that, as indicated in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 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."4

The final outcome was seen by most of those involved as a typical "compromise" solution which had intentionally failed to resolve the issue definitely either one way or the other. It was, however, assumed by most observers to have carefully left the way clear to individual states which might ratify the Convention to adopt whatever position they prefer with respect to the rights of the unborn child, provided that they act in conformity with other applicable provisions of international human rights law.

Inevitably, however, such compromises tend subsequently to be subject to a range of different interpretations. In particular, partisans of one view or another will often portray the relevant outcome as demonstrating that their preferred approach actually prevailed. Thus, for example, in a recent letter to the New York Times, a United States senator stated that "the working group of the United Nations Human Rights Commission, prompted by third world countries, recently amended a proposed United States [sic] convention on the rights of the child to apply its protection 'before as well as after birth.' "s

The purpose of the present review is not to discuss the relative merits of the competing viewpoints, but to analyze the actual provisions of the current draft of the Convention from the perspective of the relevant provisions of international law.

II. THE 1924 AND 1959 DECLARATIONS AND THE INITIAL DRAFT OF THE CONVENTION

The drafting of a Convention was first proposed by the government of Poland which submitted a complete draft text to the Commission on Human Rights

3. Comm'n on Human Rights Res. 1989/57, U.N. Doc. E/1989/20 at 137-38 and 6-7 (1980). The Commission recommended to its parent body, the Economic and Social Council, that the latter should submit the draft convention to the General Assembly "with a view to the adoption of the convention by the Assembly at its forty-fourth session." Id. at 7.

4. Draft Convention, note 1 supra, ninth preambular para. 5. Gordon J. Humphrey, US Senator from New Hampshire, U.S. Foreign Aid Program Hasn't

Paid for Abortions Since 1974, New York Times, 23 Jan. 1989, at A24.



158 HUMAN RIGHTS QUARTERLY Vol. 12

in February 1978.6 That draft was based virtually word for word on the 1959 Declaration on the Rights of the Child.7 Neither the Declaration nor the Polish draft Convention contained any explicit reference to the unborn child in the operative part of the text. Instead the relevant rights were vested in "every child." However, this reference was supplemented by a preambular paragraph to the effect that "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."8 Both texts assert in their preambular paragraphs "that the need for such special safeguards has been stated in the Geneva Declaration of the Rights of the Child of 1924 and recognized in the Universal Declaration of Human Rights." The Polish text then extends this paragraph to add references to the International Covenant on Civil and Political Rights ("in particular in its Articles 23 and 24")9 and the International Covenant on Economic, Social and Cultural Rights ("in particular in its Article 10").10 The final part of that paragraph in each of the texts then adds: "and

6. The text of the Polish draft was submitted to the Commission on Human Rights on 7 Feb. 1978. It was subsequently included as an Annex to Comm' Res. 20 (XXXIV), U.N. Doc. E/l 978/34, at 122-27 (1978).

7. G.A. Res. 1386 (XIV), U.N. Doc. A/4354, at 19-20 (1959). The principal difference between the 1959 Declaration and the Polish draft Convention was that the latter included nine articles containing the necessary legal provisions for the adoption of a treaty. The imple- mentation provisions consisted of an undertaking by states parties to submit periodic reports within a year of the Convention's entry into force for the state concerned, and at five yearly intervals thereafter (Art. XI). The reports were to be considered by the Economic and Social Council "which may make general observations and bring them to the attention of the General Assembly" (Art. XII).

8. Polish text, note 6 supra, third preambular para.; and 1959 Declaration, note 7 supra, third preambular para.

9. International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. Doc. A/6316 at 52 (1966), Article 23 states inter alia:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24 states: 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,

national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.

10. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, U.N. Doc. A/6316, at 49 (1966). Article 10 states:

The states parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the

natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with




in the statutes of specialized agencies and international organizations concerned with the welfare of children."''

Thus, a variety of other authoritative texts are specifically cited as providing a justification for including the paragraph which calls for "special safeguards ... before as well as after birth." None of those texts, however, contains any specific reference whatsoever to the unborn child.

The Universal Declaration of 1948 does not do so, although it does state, in Article 3, that "everyone has the right to life."12 When that provision was being drafted by the Commission on Human Rights, in 1947, several proposals were made with a view to providing explicit protection for the unborn child. Thus, for example, one early draft prepared by the Inter- american Juridical Committee stated: "Every person has the right to life. This right includes the right to life from the moment of conception...."13 That approach was not adopted in the preliminary draft of the Declaration prepared by the Secretariat.14 Nevertheless, the issue was again introduced during the debate by the Lebanese representative who suggested that the text should read: "Every man has the right to life and to bodily integrity from the moment of conception regardless of his physical or mental condi- tion. . . ."S In the same vein, the Chilean representative proposed the following wording: "Unborn children, incurables, imbeciles and the insane have the right to life...."'6

In the debate that followed these proposals the representative of the International Confederation of Christian Unions supported them,17 while the representative of the UN Commission on the Status of Women took particular exception to the proposal to protect life from the moment of conception on the grounds that such a proposition could not be reconciled with certain "advanced legislation: which envisaged, in certain cases, 'the right to abortion.' "18 in the event, none of the relevant proposals was pushed to a vote and the final text stated only that "everyone has the right to life... ."

adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and

young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

11. Fourth preambular para. of each text. 12. G.A. Res. 217 (A(III), U.N. Doc. A/810 at 56 (1984). 13. Cited in Verdoodt, Naissance et signification de la Declaration universelle des droits de

I'homme 95-96 (1964). 14. U.N. Doc. E/CN.4/AC.1/3/Add. 1, at 16-21, 28-30. 15. U.N. Doc. E/CN.4/21, at 59 (Mr. Malik). 16. Id. 17. U.N. Doc. E/CN.4/Ac.2/SR.3, at 5 (Mr. Vanistendael). 18. Id. at 7-8.




The Geneva Declaration of 192419 which the president of the League of Nations Assembly referred to as "the children's charter of the League,"20 also fails to contain any specific reference to the unborn child although the first principle certainly does not preclude the raising of such concerns. It reads: "the child must be given the means requisite for its normal development, both materially and spiritually." In the debates preceding the adoption of the Declaration no speaker referred to the situation of unborn children and most directed their remarks very specifically towards the need to protect "the children of today" who are sick, vulnerable, disadvantaged, or ex-

ploited.21 The additional elements contained in the Polish text were also notable

because they refer expressly to provisions of the two Covenants which call for special safeguards or protection for children22 but omit reference to the principal provision which might have been argued to extend protection to the unborn child: the inherent right to life of every human being which is recognized in Article 6 of the International Covenant on Civil and Political Rights. Moreover, the provision of the other Covenant to which the Polish draft referred (Article 10) is significant because it provides that "special protection should be accorded to mothers during a reasonable period before and after childbirth." Thus, the Covenant's principal, if not exclusive, concern during the period before the birth of the child is not with the fetus but with the mother.23

Finally, the reference in the preamble to the "statutes of specialized agencies and international organizations" does not lend any support to the case for the unborn child since the constituent instruments of the two principal UN bodies (WHO and UNICEF)24 do not contain any specific references of that nature. The WHO constitution, for example, states in the preamble a number of basic principles including: "Healthy development of the child

19. The text is contained in League of Nations, Official Journal, Special Supplement No. 23, Records of the Fifth Assembly, Geneva 1924, at 177.

20. Id. 21. Id. at 176. 22. See the relevant provisions cited in notes 9 and 10 supra. 23. It is perhaps significant in this regard that a UN seminar on the rights of the child, held

in Poland, three years prior to the adoption of the International Covenants, made no reference whatsoever to the rights of the unborn child but did focus at some length on the importance of maternal health in order to promote the well-being of the child. 1963 Seminar on the Rights of the Child, Warsaw 6 to 19 August 1963, U.N. Doc. ST/TAO/HR17 at 10, para. 32 (1964).

24. The United Nations Children's Fund, originally named the United Nations Children's Emergency Fund was created by G.A. Res. 57 (pt. 2), U.N. Doc. A/64/Add.1 at 90 (1946). Although the organization has not taken a formal stand on the question of abortion it has long concerned itself with maternal health and child survival. See Medium-Term Plan for the Period 1987-1991, UNICEF Doc. E/ICEF/1988/3, at 13-18 (1988). The organization generally refers not to the needs of the fetus per se but to "the needs of mothers in pregnancy." See e.g., Early Childhood Development, UNICEF Doc. E/ICEF/1948/L.1 at 5 (1984).




is of basic importance; the ability to live harmoniously in a changing total environment is essential to such development."25

The foregoing survey of the provisions of the 1924 and 1959 Declarations and of the original Polish draft of the Convention does not enable any definitive conclusion to be drawn with respect to the status of the unborn child. The "special safeguards" which are referred to in the preambular paragraph all relate to children in general and there are strong grounds for arguing that in light of the preparatory work, the wording itself, and the subsequent interpretation, the only explicit concern is with children after, rather than before, birth. This survey shows that there has been a demon- strable unwillingness on the part of the international community to address the latter issue and, in the context of the Universal Declaration, a clear refusal to accept proposals which would have done so. Thus, while there is no basis for asserting that the notion that human rights inhere in the unborn child has been authoritatively rejected by international human rights law, there has been a consistent pattern of avoiding any explicit recognition of such rights,26 thereby leaving the matter to be dealt with outside the international legal framework.

III. THE OPERATIVE PART OF THE DRAFT CONVENTION

Following the tabling of the Polish draft in 1978, the first response of the Commission on Human Rights was to circulate the proposed text to governments, UN bodies, and nongovernmental organizations (NGOs) with a request for comments.27 Of thirty-seven governments which replied, two raised the issue of the unborn child.28 One of those was Barbados which raised the issue in a very direct fashion:

25. World Health Organization Constitution, adopted 22 July 1946, 14 U.N.T.S. 186. 26. This was again illustrated very recently when the Human Rights Committee, established

under the Covenant on Civil and Political Rights, adopted a General Comment relating to the content of Article 24 of the Covenant. See General Comment 17 [35] in General Comments adopted by the Human Rights Committee under Article 40, paragraph 4 of the International Covenant on Civil and Political Rights (up to April 1989). U.N. Doc. CCPR/ C/21/Rev.1, at 21-23. The General Comment mirrors the approach adopted in the draft Convention on the Rights of the Child to a very considerable extent. Despite a lengthy note about the upper age limit for childhood (para. 4) the Committee carefully avoids any reference to the age from which "the child" is entitled to the relevant special measures protection.

The Committee adopted a similar approach in its General Comment on Article 6 (General Comment 6 [161, id. at 4-6) dealing with the right to life. It did note in that context, however, "that it would be desirable for state parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics. Id. at 5, para. 5.

27. Comm'n Res. 20 (XXIV), para. 2 (1978). 28. The replies are reproduced in U.N. Doc. E/CN.4/1324 and Add. 1-4 (1978-79).




The child's right to life has not been articled [sic]. How far should this right go? Does the child include the unborn child, or the fetus? Under specified circumstances, should a fetus be aborted without an offense being committed or at the relevant time was the fetus a human life? All these questions which should be considered before the child's right to life is articled.29

The reply of Barbados did not, however, give any indication as to the government's own preference in the matter. By contrast, the government of Portugal, after observing that "the rights of the child prior to birth could be more clearly defined," emphasized that "children must be the result of a choice freely exercised by their parents."30 The only NGO to touch on the issue was the International Humanist and Ethical Union which expressed the hope that it would "be possible to include in one of the articles the phrase 'every child has a right to be born a wanted child'."31 The most striking feature of the initial responses then was the paucity of concern with the issue, which would seem to demonstrate a generally shared, but certainly unstated, consensus that the matter would be best left unaddressed or at least unresolved. Nevertheless, the matter would in fact be raised from time to time over the next decade.

The issue of the unborn child was raised in four separate contexts during the preparatory work on the Convention: (1) Article 1 dealing with the definition of the child; (2) Article 6 dealing with the right to life; (3) Article 41, technically called the "savings clause"; and (4) a proposed new provision dealing with new reproductive technologies.

A. Article 1

This provision deals with the definition of a child for the purposes of the Convention. It is clearly of central importance to the entire enterprise and most of the debate focused on the upper age limit, beyond which a child becomes an adult. However, at the second session of the Working Group in 1980, the lower age limit was also the subject of debate.32 The draft with which the Group began working provided that childhood began at the moment of birth, thus conclusively excluding the unborn child. The Group's report contains only a very brief summary of the main lines of argument. In essence, one side argued that the proposal was not consistent with existing legislation in many states and should be amended. The other side "asserted that the attempt to establish a beginning point should be abandoned and

29. U.N. Doc. E/CN.4/1324 (1978), at 7, para. 3. 30. Id. at 16, paras. 2-3. 31. Id. at 24. 32. U.N. Doc. E/CN.4/L. 1542 (1980), paras. 28-31.




that wording should be adopted which was compatible with the wide variety of domestic legislation on this subject.""33 From accounts by participants in the debate, the arguments were rather more sophisticated and the tone at times more strident than this brief official record would lead the reader to believe.

Nevertheless, the final decision, which was to use the terms "child" and "human being" without addressing in any way the issue of the lower age limits, was clearly intended to maintain the maximum flexibility for potential states parties to the Convention to adopt whatever position they wished on that issue.

Despite an assumption apparently shared by many participants in the Working Group that the matter had thus been finally dispersed with, it was nevertheless reopened at the Group's final session in late 1988. Two separate amendments, the first sponsored by Malta and the second by Senegal, both proposed in essence that Article 1 should refer to "every human being from conception ... ."34 An even more radical amendment, which was widely circulated by the International Right to Life Federation, but never formally tabled, would have referred to "every human being from conception/fertilization."35 Given the extent of the opposition to these proposals and, in view of the compromise which had been arranged with respect to the sixth preambular paragraph (discussed below)36 the two sponsors withdrew their proposals but placed on record their view "that the protection of the child should begin with conception and not just from birth."37 The observer from the Holy See did not speak while the proposals were on the table but indicated, after they had been withdrawn, that he would have otherwise supported them." In effect, there was no possibility of these proposals being accepted by the Working Group and their introduction appeared to most observers to have been motivated by the desire to have a bargaining chip in negotiations over the preamble.

B. Article 6

The debate was reopened, almost by chance, when a proposal was made to recognize the child's right to survival. The intent of the sponsors was to incorporate into the Convention a phrase which has become a term of art

33. Id. 34. U.N. Doc. EICN.4/1989/48, para. 76. 35. Photocopied version entitled "Draft U.N. Convention on the Rights of the Child and On

Proposed Amendments," 2 (copy on file with Human Rights Quarterly). 36. See text accompanying note infra. 37. U.N. Doc. E/CN.4/1989/48, para. 77. 38. Id.




in children's rights matters and the recognition of which would clearly expand the range of positive measures required to be taken on behalf of the child.39 The debate over the precise meaning of the term led to a proposal by Italy to link the right to survival to the right to life.40 The latter right had not otherwise been proposed for inclusion in the Convention, almost certainly out of a widely shared desire to avoid reopening the issue of the rights of unborn children. Nevertheless, in this context, a reference to the right to life clearly made good sense although a number of government representa- tives indicated that they would only include it on the understanding that "the working group had agreed not to reopen the discussion concerning the moment at which life begins."41

Apparently, this understanding was generally observed by governments throughout the debate. The only exception was the representative of the Holy See who, immediately before the adoption of the proposal, sought to place on record his own delegation's view that "the rights of the child began before birth." In doing so the representative also enunciated two more specific propositions: (1) that life exists from the moment of conception; and (2) that "human life shall absolutely be respected and protected" from that moment.42 These propositions are controversial, even among some of those who support recognition of the rights of unborn children. The reasons will be discussed below.

C. Article 41

During the Working Group's final session, the representative of the Holy See suggested that an alternative way out of the emerging impasse would be to include the words "before as well as after birth" in the savings clause which subsequently became Article 41.43 That provision, which has a coun- terpart in the vast majority of international human rights treaties, states that "nothing in this Convention shall affect any provisions that are more con- ducive to the realization of the rights of the child. .. ." In the event, neither he nor any other participant pursued the proposal.

39. U.N. Doc. E/CN.4/1988/28, para. 14 (initial proposal made by India). The observer for the World Health Organization subsequently explained that "the term 'survival' had a special meaning within the United Nations context," especially for WHO and UNICEF. He explained that it "included growth monitoring, oral rehydration and disease control, breast-feeding, immunization, child spacing, food, and female literacy." U.N. Doc. E/CN.4/ 1989/48, para. 88.

40. Id. at para. 18. See also para. 21 (statement by Chairman/Rapporteur). 41. Id. at para. 18. 42. Id. at para. 25. 43. This suggestion was made during the final session of the Working Group, at which the

author was present. It was not, however, recorded in the report of the session.




D. New Reproductive Technologies

During the course of the final session of the Working Group, a concerted effort was made, primarily at the instigation of a wide range of nongovernmental organizations, to secure the inclusion of a new provision closely regulating the circumstances under which various types of medical experimentation relating to reproductive technologies could be undertaken.44 There was, in fact, significant support for the idea among some of the delegations present. The principal stumbling block proved to be the complexity of the issues involved and the difficulty of encapsulating a comprehensive set of ethical principles and prohibitions within a single article of the convention. As a result the effort failed, much to the consternation of the relevant NGO groups.45 While a variety of different approaches were proposed for the new article, one of them would have extended any protection accorded to children in general to "the conceived, unborn child" who would have been protected from j"genetic experiments and manipulations injurious to his physical, moral or mental integrity or to his health."46 The proposal eventually lapsed, along with the broader proposal of which it was a part.

IV. THE PREAMBLE OF THE DRAFT CONVENTION

The most important debates over this issue have taken place in response to proposals to transpose the wording of the relevant preambular paragraph from the Declaration of the Rights of the Child into the preamble of the draft Convention. Such debates took place in both 1980 and 1988. On the former occasion the proposal was put forward by the Holy See with the support of

44. A draft proposed by Venezuela for inclusion in what was to become Article 24 of the draft Convention provided that:

States Parties shall ensure that a child shall not be subject to any medical or scientific experimentation or treatment unless it is with the free and informed consent of the child or where appropriate that of the child's parents. In any case, such experimentation or treatment shall not be adverse for the child and shall not affect his health in the future.

U.N. Doc. E/CN.4/1989/48, para. 410. A number of proposals for revision were made before the chairman of the Working Group indicated that a consensus was clearly lacking, as a result of which the proposal was dropped. Id. at paras. 411-429.

45. Thus, for example, Mr. Cantwell, "speaking on behalf of 35 non-governmental organizations in consultative status with the Economic and Social Counsel" told the Commission on Human Rights that "[t]he absence of a special reference to protection from medical experimentation was ... a cause for concern and considerable disappointment, particularly in view of the world-wide consensus on the issue." U.N. Doc. E/CN.4/1989/SR.25, paras. 107-08 (1989).

46. Written statement submitted by the World Association of Children's Friends, a non-governmental organization in consultative status (category II). U.N. Doc. E/CN.4/1989/WG.1/ NGO/1 at 1 (1988).




several other delegations.47 The debate ranged over several meetings and involved a significant number of delegations. At the conclusion of the debate, the "compromise" was to refer specifically to the Declaration and to its reference to the child's need for "particular care and assistance" but to omit the words "before as well as after birth." The most active proponent of this consensus approach was the US delegation which argued that:

any attempt to institutionalize a particular point of view on abortion in the draft Convention would make the Convention unacceptable from the outset to countries espousing a different point of view. Accordingly, he insisted that the draft Convention must be worded in such a manner that neither proponents nor opponents of abortion can find legal support for their respective positions in the draft Convention.48

Some of those who spoke in favor of including a reference to the period before birth stated that the wording proposed "was sufficiently neutral since it did not specify the length of the period before birth which was covered."49 Such an interpretation of the phrase "before as well as after birth" is significantly weaker than the suggestion that the right to life is absolute and begins at conception.

At the final session of the Working Group the debate was reopened on precisely the same issue. Two formal amendments were made, one by the Federal Republic of Germany and another by the Holy See, Ireland, Malta, and the Philippines.so Both sought the inclusion of the phrase "before as well as after birth" and the debate revolved around the wording used in the third preambular paragraph of the 1959 Declaration.s' While part of the debate focused on the procedural issue of whether a proposal which had already been made and rejected during the first reading (in 1980) should be debated anew, most of the interventions raised the by now well-worn substantive arguments. When the likelihood of a stalemate which would

47. U.N. Doc. E/CN.4/1989/L. 1342 para. 6 (1980). 48. Id. at para. 18. 49. Id. at para. 11. 50. U.N. Doc. E/CN.4/1989/48, paras. 32-34. 51. This suggestion had also been made by the United Nations Educational, Scientific and

Cultural Organization (UNESCO) in the context of the "technical review" of the Convention which was undertaken by the Secretary-General at the request of the Working Group. See Technical Review of the Text of the Draft Convention on the Rights of the Child, U.N. Doc. E/CN.4/1989/WG.1/CRP.1 (1989). The UNESCO proposal, suggested that the relevant preambular paragraph should be revised so as to more accurately reflect the text of the comparable preambular provision of the 1959 Declaration. UNESCO offered no expla- nation for its proposal which, in any event, was not an entirely faithful rendering of the text of the latter document. The organization also seemed unaware that the phrase "before as well as after birth," the inclusion of which it proposed, had specifically been rejected by the Working Group in 1980. The UNESCO proposal was thus of a substantive nature and therefore inappropriate for inclusion in the "technical review" which was intended to have been limited in scope to "technical" matters.




jeopardize the entire Convention loomed, the matter was referred to a drafting group consisting of the principal protagonists on each side.

The outcome of their negotiations was, in effect, a package deal made up of three elements. First, it was understood, although not stated for the record, that parallel proposals which had been made with respect to Article 1 would be withdrawn at the appropriate time. Second, the preambular paragraph would quote verbatim the 1959 Declaration, so that it would read:

Bearing in mind that, as indicated in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 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."

Third, the following interpretative statement would be placed in the travaux preparatoires "on behalf of the entire Working Group":

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 State parties. The Working Group formally endorsed the compromise as a whole and

it was reflected in the text of the draft Convention and the final report of the Working Group as adopted by the Commission on Human Rights in March 1989.52

The complex nature of the compromise has subsequently given rise to controversy. Within the Working Group itself the representative of the United Kingdom immediately sought advice from the UN's Legal Counsel to confirm his understanding of the implications of the interpretative statement.s3 That advice, which was not furnished until after the Group had completed its work, addressed the issue raised abstractly on the grounds that "we have not, of course, [sic] seen the text of the preambular paragraph in question or the text of any of the provisions of the draft convention."" As a result, the opinion is confined to the restatement of some general principles and is of limited utility. The International Right to Life Federation nevertheless relied upon it in a written submission subsequently made to the Commis- sion.ss

52. Id. at para. 43. 53. Id. at paras. 44 and 47. 54. Id. at 144 (Annex). 55. Written statement submitted by the International Right to Life Federation, a non-govern-

mental organization on the Roster, U.N. Doc. E/CN.4/1989/NGO/55 (1989) ("The only conclusion which can reasonably be drawn from the... legal opinion is that the statement in the travaux preparatoires can have the effect of negating the influence of the sixth preambular paragraph--in the event that the interpretation of article 1 or any other article of the convention is unclear." Id. at 2).




The course of events described above gives rise to several separate, but closely related, questions: (1) what is the role of the preamble to an international treaty?; (2) what is the juridical value of a statement contained in the preamble, especially vis-a-vis the operative part of the treaty?; (3) what is the effect of the interpretative statement contained in the travaux preparatoires?; and (4) what meaning can be attributed to the preambular paragraph?

A. The Role of the Preamble

In the words of a leading French international law text the preamble contains "a statement of purposes in the form of general declarations relating to the object and goal of the treaty and sometimes expressing a veritable political program."'6 A comparable assessment was offered in the opinion of the legal counsel who noted that "the preamble serves to set out the general consid- erations which motivate the adoption of the treaty.""' There is, in UN practice, a tendency to make particular use of the preamble for the expression of general policy concerns which are not necessarily pursued or even addressed in the operative part of the instrument itself. In terms of recent practice this is perhaps best illustrated by the dispute which took place over two preambular provisions in the course of the adoption of the International Convention on the Elimination of All Forms of Discrimination Against Women.58 The dispute focused on the tenth and eleventh preambular paragraphs which linked the need for international peace and disarmament to the eradication of apartheid, racism, and colonialism.59 The United States, along with a significant number of other (primary Western) states, argued that these con- siderations were at best extraneous to the purposes of the Convention. But although those states opposed the inclusion of the relevant provisions in the preamble, they nonetheless joined in a consensus vote in the General As-

56. Nguyen Quoc Dinh et al., Droit International Public 122 (3rd ed. 1987). 57. See supra note 54. 58. G.A. Res. 34/180, Annex, U.N. Doc. A/34 (1979). 59. The full text of the two preambular paragraph is as follows:

Emphasizing that the eradication of apartheid, of all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women.

Affirming that the strengthening of international peace and security, relaxation of international tensions, mutual co-operation among all States irrespective of their social and economic systems, general and complete disarmament and in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women.




sembly to adopt the Convention as a whole.60 When President Carter subsequently transmitted the Convention to the Senate for its advice and consent, he attached a State Department memorandum specifically noting that "[w]ith respect to policy, the tenth and eleventh preambular paragraphs are objec- tionable to many nations, including the United States, because they contain political rhetoric which those nations consider inappropriate. .. "61 The implication of this approach is that a treaty can be ratified despite strong disagreement with a preambular provision. The detailed "Memorandum of Law,"62 attached to the president's message clearly assumes that the operative part of the treaty is not materially affected in any way by the offending general policy statements contained in the preamble.

B. The Juridical Value of a Preambular Provision

The legal counsel's opinion states that the "usual" purpose of a preambular paragraph is "to form part of the basis for the interpretation of the treaty."63 It should be added, however, that the preamble "does not possess any obligatory force" of its own.64 Thus, for example, the fact that the preamble of the UN Charter begins with the words "we, the peoples of the United Nations .. ." is of strictly political significance and could not be used as the basis for a legal argument seeking to equate, for example, peoples and states parties to the treaty.6s In the Southwest Africa Cases (2nd Phase) of 1966, the International Court of justice stated that "the Preamble of the United Nations Charter constitutes the moral and political basis of the legal provisions" contained in the operative part. But, it added "such consider- ations are not, in themselves, rules of law."66

In the present case it would be inconsistent with the general principles of treaty interpretation to suggest that a provision in the preamble which is not reflected in the operative part of the text, can be relied upon, on its own, to extend very considerably the natural and ordinary meaning of the actual terms used in Articles 1 and 6. While the preambular paragraph can be considered to form one part of the basis for interpretation of the treaty, there

60. Message from the President of the United States Transmitting the Convention on the Elimination of All Forms of Discrimination Against Women, Adopted by the United Nations General Assembly on 18 December 1979, and Signed on Behalf of the United States of America on 17 July 1980, S. Exec. Doc. No. R, 96th Cong., 2d Sess. VI, n.2 (1980).

61. Id. 62. Id. at 1-8. 63. See supra note 54. 64. Nguyen Quoc Dinh et al., note 56 supra, at 122. 65. La Charte des Nations Unies: Commentaire article par article 1-22 (Cot & Pellet, eds.,

1985). 66. ICJ Rep. (1966), at 5.




is no obvious reason why the preamble would be resorted to in order to interpret what would otherwise appear to be a natural and ordinary meaning of the term "child."67 In international law, at least, there is no precedent for interpreting either that term, or others such as "human being" or "human person," as including a fetus. Where the intention has been to extend the reach in that way, the practice has been to specify that fact68-an approach which was rejected in the drafting of the Convention.

There are thus no legal grounds to support the claim put forward by the International Right to Life Federation that the preambular language would, in the absence of the negative interpretative statement contained in the travaux preparatoires, be sufficient on its own to expand radically the scope of Article 1 of the Convention.69 Nevertheless, it is appropriate to consider the significance of the interpretative statement, particularly in view of the Federation's proposal that it be "removed" and its assumption that such action would restore or ensure the full potency of the preambular paragraph.70

C. The Effect of the Interpretative Statement

The Vienna Convention on the Law of Treaties clearly states that the travaux preparatoires constitute a "supplementary means of interpretation" and that recourse to such materials would only be had either in order to confirm the ordinary meaning of the terms of the treaty or where the meaning is "ambiguous or obscure.""7 However, the ordinary meaning of Articles 1 and 6 of the draft Convention is relatively clear and could not be characterized as being either ambiguous or obscure. But in any event, it is readily apparent from the travaux that there was no generally shared intention of using the preambular paragraph so as to expand the ordinary meaning of Articles 1 and 6. This fact was made abundantly clear by a large number of delegations and the interpretative statement does no more than reinforce the already

67. The International Court of Justice, stated in the (Second) Admissions Case that "[wlhen the Court can give effect to a provision of a treaty by giving to the words used in it their natural and ordinary meaning, it may not interpret the words by seeking to give them some other meaning" (cited by Sinclair, The Vienna Convention on the Law of Treaties 127 (2nd ed. 1984)).

68. See, for example, Article 4 of the American Convention on Human Rights, OAS Treaty Series No. 36 (1969). See text accompanying note 80 infra.

69. U.N. Doc. E/CN.4/1989/NGO/55 at 2 (1989). 70. It is worthy of note that this proposal, which was made both in writing (id.) and orally

(U.N. Doc. E/CN.4/1989/SR.55 at 16 para. 95), did not elicit any response from either the Commission as a whole or from any individual delegation (see U.N. Docs. E/CN.4/1989/ SR.54-55/Add.1).

71. U.N. Doc. A/CONF. 39/27 (1969), reprinted in 8 Int'l Legal Mat. 679 (1969), Art. 31. For an analysis of the significance of this provision see Sinclair, note 67 supra at 119-133.




clear implication of the travaux. Thus, even if the statement were to be removed, the conclusion to be drawn from a close reading of the travaux would remain unchanged.

One other matter also warrants consideration in this regard. In the opinion provided by the legal counsel it is said to be "strange that a text is sought to be included in the travaux preparatoires for the purpose of depriving a particular preambular paragraph of its usual purpose, i.e., to form part of the basis for the interpretation of the treaty."72 This both misrepresents the purpose of the interpretative statement and reflects an unduly rigid view as to the functions of the preamble. If we accept the established practice of using the preamble as a means by which to enunciate broad general principles, some of those principles play a general inspirational or hortatory role and are not necessarily going to be elaborated upon or to impinge directly upon correlative provisions in the operative part of the text. This would seem to be recognized in the final sentence of the legal counsel's opinion which acknowledges that there is no "prohibition in law or practice from making an interpretative statement in the negative sense, intended here as part of the travaux preparatoires."73 In fact, according to the purpose of the interpretative statement, specifically declared to have been agreed on, the basis of consensus was to prevent any attempt to misrepresent the meaning and import of the preambular provision. It was not, as suggested by the legal counsel, intended to deprive the preamble "of its usual purpose."

D. The Meaning of the Preambular Paragraph

it sometimes seems to be assumed that the preamble's recognition of the fact that "the child ... needs special safeguards and care, including appropriate legal protection, before as well as after birth" is tantamount to recognizing the absolute right to life of the unborn child from conception. Indeed, in addressing the Commission on Human Rights, the representative of the Federal Republic of Germany went as far as to state that the ninth preambular paragraph was "a great success" because it was "the first time that the right to life of the unborn child had been recognized in an international convention."74 This assumption could only be sustained if it can

72. See note 54 supra. 73. Id. 74. U.N. Doc. E/CN.4/1989/SR.54, para. 76 (1989) (Mr. Jaeger). He also noted that the pream-

bular paragraph, as thus interpreted, "was in conformity with article 1 of the Basic Law of the Federal Republic of Germany and with the long-standing tradition of that country dating back to the Prussian laws of 1794 ... which stipulated that: 'the general rights of humanity also apply to children unborn, even prior to the moment of their conception'." [sic] Leaving aside the rather delicate issue of how a child might be protected before conception, the representative neglected to mention that, the Basic Law notwithstanding,




be argued that the statement definitively revises the ordinary meaning of the term "child" so as to encompass a fetus. But in view of the clear and repeated rejection of such an interpretation during the drafting process, and of the fact that the operative part of the Convention is addressed exclusively to situations after birth, such a definitive revision cannot be derived solely from the preambular provision. Indeed, if the interpretation put forward by the Federal Republic of Germany were to be accepted, entirely new human rights could be derived solely from statements contained in the preambular provisions of treaties. That is a result which the government of the Federal Republic would hardly be likely to welcome in other contexts.75

In any event, it is necessary to look very closely at the actual wording of the ninth preambular paragraph before reaching any conclusions as to its meaning and significance. Thus, if we were to accept for the sake of argument that the paragraph imposes a binding obligation on each state party, the obligation would be to provide the child with "special safeguards and care, including appropriate legal protection, before ... birth." Such an obligation cannot be read as mandating the recognition of the right to life of the unborn child. Rather, as many of its proponents have argued, its significance is to endorse the already very widespread practice of taking whatever measures the state considers "appropriate" with a view to protecting the fetus. There is neither an explicit nor an implicit assumption that such protection will or should include an absolute right to life. What is "appropriate" in that regard is for each state to determine for itself and is not a matter to which the draft Convention addresses itself. That does not, however, preclude the option for a state to decide for its own purposes that "appropriate" legal protection requires recognition of an unborn child's right to life, provided that other human rights guarantees were not thereby violated.

a pregnancy may be terminated in the Federal Republic if the mother's life or health are in danger or if there are other exceptional circumstances. In practice, abortion is widely practiced in the Federal Republic of Germany. See Brueggemann andScheuten v. Germany, 5 D.R. 103, 19 Y.B. Eur. Conv. on Hum. Rts. (1975).

The suggestion that the formula originally used in the Declaration on the Rights of the Child, and then incorporated into the Preamble to the draft Convention, implies that the unborn child has an absolute right to life has also been made in the context of US population policy. Thus, Ambassador James Buckley, leader of the US delegation to the United Nations International Conference on Population, held in Mexico City in 1984, suggested that the US policy of "not consider[ing] abortion an acceptable element of family planning pro- grams" was in "keeping with" the Declaration on the Rights of the Child. Foley, The Legitimacy of the "Mexico City Policy" in the Context of Human Rights-Based Restrictions on United States Foreign Aid, 27 Colum. J. Transnat'l L. 387 at 389, n.11 (1989). But the implication that the Declaration renders abortion unacceptable tout court is a clear mis- representation of the relevant provisions.

75. Thus, for example, the representative of the FRG, speaking in the Third Committee of the General Assembly has warned that "countries must not fall prey to the belief that the protection of the individual could be significantly improved merely by drawing up new text." He also complained about a general "proliferation of norms" and "an inflationary increase in human rights text." U.N. Doc. A/C.3/42 SR.46, paras. 10-11 (1987) (Mr. Schwandt).




V. CONSIDERATION OF ADDITIONAL POLICY ISSUES

Before drawing conclusions from the foregoing analysis, it is relevant to address three further issues that may be raised in this context. The first two concern the time at which a right to life for an unborn child could, in the future, be said to exist, and the extent to which such a right would be absolute. The third concerns the situation under the 1969 American Con- vention on Human Rights.

A. Would a right exist from conception or fertilization?

It is often assumed that if the unborn child is to be protected, the only acceptable approach is to recognize a right to life from the moment of conception or fertilization. It must first be noted that these two concepts are by no means identical. The latter refers to the union of an ovum and sperm which can take place shortly after intercourse. Conception, on the other hand, is generally defined as occurring only at the time of implantation in the uterine mucosa, a process which is not completed until around fourteen days after fertilization has occurred.

The choice of either of these two concepts as the starting point of life for the purposes of protection would clearly be inconsistent with the existing legislation of a great number of countries, most of which nevertheless have legislation designed to promote the well-being of the fetus. It would, for example, represent a radical change in the US legal position as reflected in the Supreme Court's decision in Roe v. Wade76 which adopted a trimester approach premised on the concept that the state's legitimate interest in potential life only becomes compelling at the point when the fetus is viable independent of its mother. Similarly, the British courts have held that a fetus is not a "person" for the purposes of legal and constitutional provisions protecting "life."77 In addition to being inconsistent with the legislative approach which has evolved in many countries, the proposed extension of the definition of a child to include every stage from conception or fertilization onwards would not only prohibit induced abortion but also many commonly used contraceptive methods such as the postcoital pill and the intrauterine device (IUD).

76. 410 U.S. 113 (1973). 77. "The fetus cannot, in English law, in my view, have a right of its own at least until it is

born and has a separate existence from its mother. That permeates the whole of the civil law of this country. .. ." Paton v. Trustees of the British Pregnancy Advisory Service [1978] 2 All E.R. 987. On the current status of English law in this domain see Mason, Abortion and the law in Legal Issues in Human Reproduction 45 (McLean ed. 1989); and Terry, England in Abortion and the Protection of the Human Fetus; Legal Problems in a Cross- Cultural Perspective 75 (Frankowski and Cole eds. 1987).




A wide range of measures exist by which the interest of the unborn child can be promoted and protected without going so far as to recognize a right to life from the moment of conception or fertilization. Moreover, the vague- ness of the preambular provision and its failure to address any of the complex issues which a fetal right to life would raise, serve to reinforce the assumption that it could not have been intended to have any precise operational implications.

B. Absolute Protection of the Right to Life of the Unborn Child

At one stage during the drafting of the Convention it was suggested that "human life [should] absolutely be protected and respected" from the moment of conception. However, the implication that a right to life of an unborn child could be absolute is mistaken. All human rights must be weighed against the rights of others. Thus, the rights of women to life, mental and physical health, and privacy would all need to be taken carefully into account in determining, in a situation involving a conflict of rights, which should prevail. It is for this reason that the European Commission on Human Rights has consistently refused to accept that the right to life recognized in the European Convention of Human Rights can be translated into an absolute right for an unborn child. This was clearly stated in a 1978 case in which a husband had challenged his wife's intention to have an abortion even though she had received necessary certification from two doctors, as required by British law, to the effect that her physical or mental health would otherwise be at risk. The Commission avoided the expression of any final opinion as to whether the provision in Article 2(1) of the Convention according the right to life to "everyone" extends to cover the unborn child. Instead, it treated the case as one involving a conflict of rights. The European Com- mission began by rejecting the notion that any rights which a fetus might have could be absolute since such an approach would imply that the "unborn life" of the fetus was of a higher value than the life of the pregnant woman. The Commission's finding was that:

the authorization by the United Kingdom authorities of the abortion complained of is compatible with Article 2(1), first sentence, because if one assumes that this provision applied at the initial stage of the pregnancy the abortion is covered by an implied limitation protecting the life and health of the woman at the stage of the "right to life" of the foetus.78

78. Paton v. United Kingdom, 8416/79, 19 D.R. 244; 3 EHRR 408 (1980). An accurate recent assessment of the efforts of the European Commission and the European Court in this area concluded that "reasons of religion have made impossible any common European view on the beginning of life and any coherent jurisprudence on the right to life provisions," Higgins, The United Nations: Still a Force for Peace, 52 Mod. L. Rev. 1, at 2 (1989).




The inappropriateness of seeking to declare the fetus' right to life to be absolute is also demonstrated by the approach which was ultimately taken in the comparatively radical antiabortion amendment to the Irish Consti- tution, which was adopted by referendum in 1983. The original proposal would have guaranteed "the absolute right to life of every unborn child from conception."79 Ultimately, however, a considerably more nuanced formu- lation, directly juxtaposed with the right to life of the mother, was adopted. It reads:

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.,

The practicality qualification thus provides an opportunity for the Irish courts to seek to reconcile the conflicting rights involved without violating the terms of the consitutional amendment.81

C. The American Convention on Human Rights

As noted earlier, Article 4 of the American Convention on Human Rights, which was adopted by the Organization of American States in 196982 and entered into force in July 1978, provides that:

Every person has the right to have his life respected. This right shall be protected by law, and in general, from the moment of conception ...

The American Convention is, as a result, the only international human rights treaty which addresses itself implicitly to the status of the unborn child. But although Article 4 is clearly designed to recognize and protect the right to life of the fetus, the qualifying phrase, "in general," has been interpreted as continuing to permit abortion under certain circumstances. Thus, in its only decision to date on the question of abortion, the Inter-American Com- mission on Human Rights reasoned in 1981, in the Baby Boy case, that the qualification was expressly inserted in order to permit abortion, "inter alia,

79. Boyle, Ireland, in Abortion and the Protection of the Human Fetus, note 77 supra, at 121. 80. Id. at 122. 81. In Boyle's view, "the legal uncertainties left after the Amendment... are on such a scale

that it is inevitable that they must be clarified.... The consequence will be a clarification that the mother's rights take precedence if any because of the European Convention on Human Rights. Thus, even if within the narrowest limits, abortion will ultimately be recognized as a right within Ireland." Id. at 126.

82. See note 68 supra.




to save the mother's life, and in case of rape.""8 The facts of that case and the legal reasoning employed by both the majority of five" and the two dissenting members8s of the Commission are too complex to warrant detailed analysis in the present context. It is noteworthy, however, that the possibility of Article 4 being interpreted in a more restrictive fashion had earlier prompted the Carter administration to enter a reservation with respect to abortion when it proposed the ratification of the American Convention to the US Senate in 1978.86 A revealing insight into the concerns that may have prompted that reservation was provided in 1979 congressional testi- mony by Professor Tom Farer (who subsequently coauthored the Inter-Amer- ican Commission's majority opinion in the Baby Boy case). In support of the proposed reservation, he advocated:

83. Case 2141 (United States), OAS Doc. OAS/SER. L/V/II. 54 doc. 9, rev. 1 at 25 (1981). "Baby Boy" was cited by the petitioner as the "name of the person whose rights have been violated." It should be noted that the Commission agreed to consider the implications of Article 4 of the Convention (despite the fact that it had not been ratified by the United States, which was the respondent in the case) because of the petitioner's contention that the American Declaration on the Right and Duties of Man (the relevant part of which provides only that "every human being has the right to life .. .") should be interpreted in light of the Convention.

84. The majority opinion involved a detailed review of the drafting history of both the American Declaration and the American Convention. It concluded that "[i]n the light of this history, it is clear that the petitioners' interpretation of the definition given by the American Con- vention on the right to life is incorrect. The addition of the phrase in general, from the moment of conception does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogota, when they approved the American Declaration." Id. at 42, para. 30. The majority also noted that even if, for the sake of argument, it was accepted that the American Convention could be interpreted as providing for an absolute and unqualified right to life from the moment of conception, that obligation could not be imposed on a government, such as that of the United States, which had not specifically ratified the Convention and accepted the obligation in question. Id. at 43, para. 31.

85. Both the dissenting opinions argued strongly in favor of recognition of the unborn child's right to life on the basis of existing international legal provisions. They also contain strong moral arguments, as the following passage well illustrates:

The intentional and illegal interruption of the physiological process of pregnancy, resulting in the destruction of the embryo or death of the fetus, is unquestionably an offense against life and, consequently, a violation of Article 1 of the American Declaration of the Rights and Duties of Man. The maternal womb in which the flame of life is lighted is sacred and may not be profane [sic] to extinguish what God has created in his image and in his likeness.

Id. at 47, para. 8. The second dissent also relied on the Declaration on the Right of the Child (note 7

supra) which was said to have "expressly recognized that the human being exists, and has rights, and needs protection, including legal protection, in the period preceding his birth." Id. at 51. This analysis of the Declaration is open to challenge, primarily on the basis that the relevant text does not speak of "rights" in the same context as it speaks of protection before birth.

86. Four Treaties Pertaining to Human Rights: Message From the President of the United States, 95th Cong., 2d Sess. at XVIII (1978). The administration proposed a reservation to the effect that: "United States adherence to Article 4 is subject to the Constitution and other law of the United States." Id.




that the United States should refuse to accept Article four's categorical preclusion of abortion. For it would require the government to impose on all the peoples of our country a moral position which many reject on moral grounds. Moral tolerance is the genius of liberal democracy-a system of majority rule balanced by respect for individual rights. Such a system cannot endure, indeed it violates its very nature, when it backs with state sanction moral positions which do not enjoy almost universal support.8"

The American Convention, and the interpretation which it has been given by the Inter-American Commission on Human Rights, are significant in the present context because they confirm the consistent refusal of international law, even in the case of a treaty which specifically recognizes the right to life, ". .. in general, from the moment of conception," to impinge significantly on the discretion of each state to adopt its own policy regulating access to abortion."" At the same time, however, it is clear that there would be policy approaches (such as active state encouragement of the indiscrim- inate use of abortion as a birth control mechanism) which would be unacceptable in light of the limitations flowing from Article 4 of the Convention.

VI. CONCLUSION

Proposals to explicitly recognize the right to life of the unborn child have been consistently rejected by a large margin. 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. 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 (which are now inserted with increasing frequency into the preambular provisions of treaties). By the same token, however, the text of the Conven- tion, as currently drafted, clearly leaves open the possibility for individual ratifying states to adopt "appropriate" legal and other measures to protect the unborn child. Thus, proponents of formal legal recognition of the right to life of the unborn child could invoke the relevant preambular paragraph in order to confirm the fact that the Convention does not prohibit measures aimed at outlawing abortion. Equally, however, it is clear that neither the text of the Convention itself, nor any of the relevant circumstances sur-

87. "Prepared Statement of Professor Thomas J. Farer," in International Human Rights Treaties, Hearings Before the Comm. on Foreign Relations, United States Senate, 96th Cong., 2d sess. 97 at 99 (1979).

88. In the Baby Boy case, note 83 supra, the effect of the Commission's decision was to hold that the approach adopted by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), did not violate the appropriate standard.




rounding its adoption, lend support, either of a legal or other nature, to the suggestion that the Convention requires legislation to recognize and protect the right to life of the fetus.8"

In sum, therefore, on the issue of the status of the unborn child, the Convention conforms with existing international human rights law.90 While recognizing that the fetus is deserving of appropriate protection, its right to life per se is not recognized. Moreover, the rights of the mother (including those to life, mental and physical health, and privacy) recognized by a wide range of other internTational human rights treaties, are fully preserved by the savings clause contained in Article 41 of the Convention. The matter of abortion is therefore left to each state to deal with in light of its own per- ceptions of the most effective means of balancing the conflicting rights and interests involved. In this regard, experience in a number of states has demonstrated that legalized abortion is not necessarily inconsistent with increasing the level of protection accorded to the fetus.91

89. This was acknowledged in a statement to the Commission on Human Rights by a group which considers itself to be a staunch advocate of the right to life of the unborn child. While welcoming the inclusion of the ninth preambular paragraph, the group noted that "such an addition will be of no value unless it is reflected in the main body of the international instrument itself. A preamble simply helps to explain the premises for [sic] the operative part of a text, but is itself devoid of any binding force." Written statement by the World Association of Children's Friends, a non-governmental organization in consultative status (Category) II. U.N. Doc. E/CN.4/1989/NGO/15 at 2 (1989).

90. See generally, Shelton, International Law on Protection of the Fetus in Abortion and the Protection of Human Fetus, supra note 77 at 1; and Robert, Le droit a la vie et le com- mencement de la vie, in Perspectives Canadiennes Et Europeennes Des Droits De La Personne 437 (D. Turp & G. Beaudoin eds., 1986).

91. See e.g., Terry England, supra note 77 at 95 ("... a liberal abortion law is not necessarily incompatible with extensive legal protection for the fetus. Indeed, it seems clear that the liberalization of abortion has not slowed down the growth of the legal protection afforded the fetus."); Pradel, France, in Abortion and the Protection of the Human Fetus, supra note 77 at 213. By the same token, however, human rights laws would appear to impose certain clear limits on the extent to which such protective measures might reasonably be taken. See e.g., Grant, Forced Obstetrical Intervention: A Charter Analysis, 39 Univ. of Toronto L. J. 217 (1989). (Grant argues on the basis of the Canadian Charter of Rights and Freedoms that " ... Canadian courts should refuse to follow the interventionist trend that we have witnessed recently in the United States, and that forced intervention on behalf of the fetus violates a woman's right to bodily integrity and constitutes discrimination on the basis of sex.") Id.



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