Unborn Rights and International Law

The Quadrant:

Rita Joseph, a veteran of the UN conference circuit, has written Human Rights and the Unborn Child. This collection of documents and commentary on the instruments of international law relating to the status of the unborn is unique, and will be welcomed—although not by pro-choice groups—as the standard text on the matter. Joseph has gathered a vast array of references to the unborn in the major documents of international law, and carefully collated, analysed and put them into context.

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Abortion advocates, relying on legalism, have continued to argue that the wording “before as well as after birth” is not legally binding, that although the Convention on the Rights of the Child (CRC) is a legally binding document that entails obligations for state parties (except the USA, which has not ratified it) the obligations do not extend to children before birth because the rights before birth are only mentioned in the preamble: and “no operative provisions of the CRC refer to the rights of unborn children”.

However, Joseph makes the point that this bizarre reasoning contradicts the foundation principles of the Declaration of the Rights of the Child, because the preamble is a statement of the motivation and substantive content of what comes after in the conventions. Then hoisting the legalists on their own petard, she nails the ruse by quoting a better legal authority. Ignoring the preamble contradicts the Vienna Convention on the Law of Treaties (1969):

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble ...