JOHN FLEMING PHD
WHAT RIGHTS, IF ANY, DO THE UNBORN
HAVE UNDER INTERNATIONAL LAW?
This chapter draws significantly on an earlier article which I co-authored with Michael
Hains and which was published in the Australian Bar Review.
Barristers and solicitors have traditionally looked to case law as an important source of
interpreting domestic law. With the increasing globalisation of world trade, tourism, the
breaking down of language barriers, and improvements in international relations
international law has emerged as a further important influence. International law has
traditionally focused on governing relations between independent nation states.
However, in the aftermath of the Second World War the United Nations was formed on
the basis of a Charter which committed the members of the UN to “take joint and
separate action in cooperation with the Organization” to achieve “the purposes set forth
in Article 55 [of the Charter]”.1 Article 55 committed the UN to promote “universal
respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.”2
One important consequence of this major development in international relations has
been the “demise of Oppenheim’s doctrine that ‘States solely and exclusively are the
subject of International Law’ … [I]t is [now] … the case that inter-state treaties are
increasingly concerned with the ‘trans-national’ affairs … of private individuals and
companies.”3 DJ Harris, in a later discussion of the activities of the UN Commission on
Human Rights, also points out that “the idea that the treatment of a state’s own nationals
is a matter within its own jurisdiction has been abandoned.”
The practice of the Commission shows clearly the acceptance by the states,
as they respond without question to allegations against them, that the
protection of human rights is now within the domain of international law.4
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.