CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ABORTION AND EUTHANASIA IN THE DRAFT HUMAN RIGHTS … universal and regional human rights treaties. It is true that according to the Manfred Nowak’s commentary to the ICCPR, “life in the making was not (or not from the point of conception) to be protected” under the ICCPR. However, M. Nowak adds that the fact that protection “was not to begin at the moment of conception does not permit one to draw the conclusion that the unborn child is not protected whatsoever by Art. 6”. 13 And other authors and sources are more unequivocal in this regard. Concerning the ICCPR, Thomas Finnegan, for example, points to the fact that the travaux préparatoires to its Article 6, para. 5, which prohibits the imposition of death sentence, i. a. , on pregnant women, “explicitly show that the original intention of the writers of the text was to protect the right to life of the innocent unborn child in the womb of his mother sentenced to death”. 14 Concerning other universal human rights treaties, one could refer to the preambular paragraph 9 of the Convention on the Rights of Child, which (quoting the text of the Declaration of the Rights of the Child) provides 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”. According to some authors, “[a]t most, this language recognizes a state’s duty to promote a child’s capacity to survive and thrive after birth, by targeting the pregnant woman’s nutrition and health”. 15 However, this proposition is definitely not persuasive. It is true that during the negotiations, this preambular paragraph proved to be controversial and the report of the Working Group (as part of travaux préparatoires ) preparing the Draft Convention contained, as a final compromise, the words that “[i]n adopting the [above] preambular paragraph, the Working Group does not intend to prejudice the interpretation of Article 1 [on the definition of the child] or any other provision of the Convention by States Parties.”. 16 However, the fact is that the preamble still forms the context of the treaty for the purpose of its interpetation, in accordance with Article 31, paragraph 2, of the Vienna Convention on the Law of Treaties (the travaux préparatoires , on the other hand, being only the supplementary means of interpretation under Article 32 of the Vienna Convention) and that Article 1 of the Convention on the Rights of Child defines only the upper age-limit (eighteen years), but not the bottom age-limit as to who should be regarded as “child” under the Convention. 17 Philip Alston, in his analysis of the travaux préparatoires of the Convention concerning the possible protection of the prenatal life, came to the conclusion that “[t]he 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”, and added that “what is ‚appropriate‘ in that regard [concerning legal protection of the unborn child] is for each state to determine for itself and is not a matter to 13 NOWAK, Manfred. U. N. Covenant on Civil and Political Rights: CCPR Commentary , (2d ed. 2005), pp. 153-4. 14 FINNEGAN, Thomas. International Human Rights Law and the “Unborn”: Texts and Travaux Préparatoires, Tulane Journal of International & Comparative Law , 2016, Vol. 25, Issue 1, p. 20. See further UN documents A/C.3/SR.810, § 2; A/C.3/SR.811, § 9; A/C.3/SR.812, § 7; A/C.3/SR.813, § 36; A/C.3/SR.815, § 28. Similar provision appears in article 4, para. 5, of the 1969 American Convention on Human Rights. 15 Zampas, Gher, op. cit. sub. 10, p. 263. 16 Report of the Working Group on a Draft Convention on the Rights of the Child, U. N. Doc. E/CN.4/1989/48, para. 43. 17 Article 1 defines “child” as “… every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. See further Piero A. Tozzi, International Law and the Right to Abortion, Catholic Family and Human Rights Institute, Legal Studies Series, Number One, 2010, p. 7; available at https://c-fam.org/wp-content/uploads/International-Law-and-the-Right-to-Abortion-FINAL.pdf (visited on 3 June 2018).

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