Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697808763730.pdf (Malta)
IT-TLETTAX-IL LEĠIŻLATURA P.L.

1579 Dokument imqiegħed fuq il-Mejda tal-Kamra tad-Deputati fis-Seduta Numru 106 tat-30 ta’ April 2018 mill-Onor.

Godfrey Farrugia, MP.
___________________________ Raymond Scicluna Skrivan tal-Kamra Scicluna Ray at Parlament-MT From: Sent: To: Subject: Godfrey Farrugia <farrugiagodfrey@gmail.com> 30 April 2018 20:19 Scicluna Ray at Parlament-MT Fwd: Part of an article that is to be published ----------Forwarded message--------- From: Godfrey Farrugia <farrugiagodfrey@gmail.com> Date: Mon, 30 Apr 2018 at 20:16 Subject: Part of an article that is to be published To: Godfrey Farrugia <farrugiagodfrey@gmail.com> The Rightto Life The right to life is a principle based on the belief that a human has the right to live and should not be killed by another person.
As humans we condemn war, because it causes death and destruction ... we condemn murders, we condemn animal suffering, we are intrinsically programmed to defend and fight for life.

This is one of the codes of natural justice.

Natural justice is not the result of religious belief or moral standards, it is what nature and humanity has made us be: human beings with the dignity of a person.

Natural laws, are different from manmade laws which are bestowed on to a person by a given legal system.
These rights can be modified, repealed, and restrained.

Natural rights are not dependent on the laws or customs of any particular government.

These are absolute.

The right to life is a fundamental human right and stands above any other man made law (22).

Our laws are defined by this form of justice.

Can we pick and choose to whom we apply or not, the right to life?

It is my intention to highlight the relevant laws behind international and local acts.
United Nations United Nations protects the unborn child.

This is universally agreed.

The right to life is a principle of civilization and its universal denial would fail to recognize the universal dignity of a human being.

The key International .declarations and conventions are: 1.

The Vienna Convention of the Laws of Treaties 1969 (VCLT), which is a treaty of how international law appli.es between states.

Protection of life before birth could be considered as jus cogens (23).

2.
2.

The Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1966 (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (CPPCG) and the Declaration of the Rights of the Child 1959 (DRC) protect the rights of the unborn in varying context but clear terms.

-UDHR: This declaration was adopted by UN General Assembly and has inspired all other human rights conventions.
Its preamble speaks of' equal and inalienable rights of all members of the human family'.

Article 3 states 'Everyone has the right to life, liberty and security of person' and article 6 pledges' Everyone has the right to recognition everywhere as a person before the law' whilst Article 7 asserts : 'All are equal before the law and are entitled without any discrimination to every protection of the law.'
These affirmations are not qualified as age limited or limited to the born, and it would be difficult to understand them as not including the living-but-not-yet-born.

The ' all members of the human family' can only mean all 1 I I I f ' '' i 1 ~• members of the human species and 'everyone' means 'every human being', and so we should be protected as such (24).

Furthermore a close look at the travauxpreparatoires of the Declaration confirms this.
· ICCPR: Article 6,1 recognizes 'Every human being has the inherent right to life.

This right shall be protected by law.

No one shall be arbitrarily deprived of his life.'

The statement is explicit and singles out the right to life as 'inherent' to everyone making it supreme.

The Covenant incidentally prohibits death penalty for pregnant women out of respect for the life of the child.
· CCPCG: Article 2 defines the 'odious scrouge' of genocide to include 'killing members of the group' and 'imposing measures intended to prevent births within the group'.

A clear acknowledgement to the right to life of the unborn.

·DRC: In its preamble it states 'Whereas 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.'

...

.
...

.

'and calls on national Governments to recognize these rights and strive for their observance by legislative and other measures progressively taken ..

.'

(25).

Thirty years after the DRC, the UN adopted The Convention of the Rights of the Child 1989 (UNCRC).

This is a human rights treaty which sets the civil, political, economic, social, health and cultural rights of children regardless of race, disability and religion.

The only member states who did not ratify are US and Somalia.
The convention defines the child's right to life, a nationality, an identity, to be heard, to freedom of thought, religion and to health.

However, it is silent on the age at which childhood begins, and unclear whether the rights apply to the unborn.

It defines a child as 'Every human being below the age of18 years.'

This ambiguity has given rise to diverse opinions.


One must remark that some States already had laws permitting abortion before ratifying the 1959 Convention and this is why the UNCRC is circumstantial on the rights of the unborn.

The authors of UNCRC 'have failed the children they pledge to protect' as the minimum age of the child in the legally binding sections of the Convention are open ended.
'In failing to do so, the authors have done a grave disservice to children at a time in their growth and development when they are most vulnerable and in need of protection.

The authors of the Convention refer to the special care and protection requirements of the child both before and after birth in its preamble and in various articles throughout.

How can one separate the wellbeing of the unborn from that of the born child?
One notes that special provisions exist which protect the vulnerable children of refugees and disabled.

It is the view of many authors that additional provisions should have protected the unborn from unnatural termination and harm (26).

If one applies the VCLT and the DRC, which forms the basis of CRC, and UDHR and ICCPP the rights of the unborn are undeniably not excluded (27).

Many authorities claim that the words 'every human being' reaffirm this status.
To state that the International Community in drawing up the CRC (28) excluded the unborn is to ignore the universally agreed human rights instruments.

In recent years the raison t'etre behind the declaration in support of the unborn is being challenged.

There is a notable change in attitude.

Certain social norms have changed, and once individual values change and are group shared, these may lead to a change in very conduct of society.
It is apparent that in a globalized society, people are influenced cross culturally, to an extent that certain norms that were acknowledged a few decades ago are not conformed to, to-day.

We have become a personalized society.

In my opinion principles do not change because new social norms dictate so.
In a testimony at the Australian Senate Standing Committee (29) a heated cross examination followed, and it was stated: that the evidence is 'incontrovertible' and 'Human rights for the unborn children, having been 2 r I ; ~· I . '

. '

recognized right from the beginning, how can it now be de-recognized.
They certainly can't be de-recognized by re-interpretation through a 21st century ideological bias seeking to justify current laws that accommodate the appalling notion, that mothers have ownership and disposal rights over their unborn children'.

The difficulty arises when the legal protection of the unborn conflicts with the rights of a pregnant teenager /girl.

Under CRC, the rights of a pregnant teenager are interpreted as being superior to those of the unborn (30).
Finally under CRC, it is the sovereign state that retains the power to decide what prenatal legal protection is adopted.

It is evident that the idea, that the unborn child is not a person and that the unborn child does not hold rights is incorrect.

The universal declarations protect the human rights of all without any distinction whatsoever, including those of the unborn.

Malta is signatory to all cited UN declarations.


In my opinion discrimination because of age, personhood, status and disability are all examples of unjust discrimination, including when they are applied to unborn children.

European Union, Council of Europe and their courts of justice Protection and promotion of children's rights is one of the objectives of the European Union.

It is guided by the principles set out in the UNCRC and is ratified by all EU member states.
Moreover the Treaty of Lisbon on European Union, Article 3(3) promotes the protection of children and so does the Charter of Fundamental Human Rights of the European Union which applies to all EU institutions as well as all member states(31).All policies and actions with an impact on children are designed, implemented and monitored in line with the best interests of the child (32).
However EU does not go into the merits of the rights of the unborn, as the right to life does not extend under Article 2,41 of the European Convention of Human Rights 1959 (ECHR) (33).

The unborn have no explicit rights.

Under European Law, the fetus is generally regarded as in utero part of the mother and thus its rights are held by the mother (34).

However I note, that EU did legislate against human cloning and it thus follows, that indirect recognition has been given to the embryo.
In 2002 the European Parliament adopted a resolution, the so called Anne van Lancker Report, (35) on Sexual and Reproductive Health and Rights.

Although not legally binding, it recommended better access to safe and legal abortions, and to end penalties for women having had illegal abortions.

On its part, EU does not have the remit to legislate on abortion nor does it have any competence to make such laws.

However a common EU policy on abortion has been sought but these attempts have failed.
In 2008 the Council of Europe applied further political pressure and declared that abortion should be legal and accessible for all women in Europe and invited member states to decriminaliseabortion (36), In Europe, both the European Court of Human Rights (ECHR) and the European Court of justice (ECJ) rule on human rights issues.
Many a times articles 2 (Everyone's right to life shall be protected by law) and 8 ('everyone has the right to respect for his private life') of the European Convention are put on the justice weighing scales.

They rank as the most fundamental provisions.

ECJ, is the highest court of the European Union.

It interprets EU law and ensures its equal application across all EU memberstates.
A notable judgement of the Grand Chamber is Oliver Briistle v. Greenpeace elf, 2011: This infers that 'in the context of patent law, the legal protection stemming from the dignity of the human being starts from the moment of conception and the earliest embryonic phase, since 'fertilisation is such as to commence the process of development of a human being' ....

.'

(37) The ECHR protects the rights and guarantees set out in the Convention but has no authority to impose relevant laws on EU member states.
Up to date the court has never revealed a position on the legal status of the unborn.

Notable judgements with respect to pregnant mothers and the right to life are: 3 !

, i . '

'' . '

' ' ' ' ' Case of Paton v. United Kingdom 1980: An abortion carried out in the 10th week of pregnancy was not condemned.

The judgement ruled out the fetal right to sue the mother.
It was decided that the life of the fetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman'.

(38) Case of H. v. Norway 1992: The claimant challenged the order whether the MAP is abortive and if the fertilized ovum has aright to life under Article 2 of the Convention.

Case ofVo v. France 2004: Vo presented for a medical examination scheduled during the sixth month of pregnancy.
On the same day, at the same time and at the same hospital another woman, witli same surname was due to have an intra uterine coil removed.

Due to a mix-up also caused by the fact that Vo was unable to communicate in French properly, the gynecologist pierced the applicant's amniotic sac, making a therapeutic abortion of the fetus unavoidable.

The judgement delivered did not express a clear opinion on the status of the fetus.

An opportunity was lost.


One must note that the European Convention does not expand explicitly on the scope of Article 2 as applied to unborn children (39).

Case of A.B and C v. Ireland 2010: Ireland failed to provide an accessible and effective procedure by which women can establish whether they qualify for legal abortion under Irish law.

Applicants had travelled to England as they believed they would not have been allowed an abortion in Ireland.
C also believed that her pregnancy may have been life threatening.

judgement was one which confirmed that applicant C's privacy rights were violated.

The decision is significant on as a court decision-making and on the notion of European Consensus.

Ireland eventually remedied by legislation ( 40).

Case of P.and S v. Poland 2013: Pregnant 14 year old who was raped and wanted to abort.

She was humiliated, manipulated and harassed in her quest to obtain a legal abortion.
This is a ground breaking case, to sexual and reproductive rights of adolescence and their right to self.

determination in matters of reproductive health (41).

Case of R.R v Poland 2011: A pregnant woman was deliberately refused genetic tests so that she takes an informed decision when severe abnormality was suspected in the fetus.

The infant was born with Turner's syndrome.

This judgement favours women's reproductive health and rights ( 42).
To sum up, the European human rights system is characterized by uneasy relations among the three sources on human rights law: the national law of member states, the ECHR and EU law.

One must remark that the judgements of the ECHR are not binding for Malta as it is our Constitution and laws that defines us.

Chapter 319 of the European Convention has to be changed to enforce such measures on a member state.

There may be many obligations under international law which influence national law.
However, it is hard to imagine a more neglected area of human rights discussion in EU than the rights of the unborn (including civil ones).

Organization of American States The Organization of American States [OAS) was founded in 1948 and is a regional organization that has a membership of 35 states.

They are bound by an OAS Charter and by the American Declaration on the Rights and Duties of Man.
A number of human rights treaties have been adopted one of which is the American Convention on Human Rights (43).

Article 4.1 explicitly applies to unborn children: 4 I I I' " 1 , I ' '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.

No one shall be arbitrarily deprived of his life.'

This is in sharp contrast to the European Convention.
lt is the only international treaty that specifically tackles the right to the unborn in crystal clear terms and recognizes fetal rights.

The right to life precedes any other fundamental right and the quality oflife we lead.

'Unless the State can guarantee the right to life then there are no meaningful rights to freedom or to security of person' (44).

We are all equal in dignity and rights, irrespective of one's status.
Article 1 of the 1948 UDHR ( 45) and Article 1 of the 2000 EU Charter of the Fundamental Rights (46) refers to a human being's dignity in very explicit terms.

Dignity is not only a fundamental right in itself but constitutes the real basis of fundamental rights.
Malta's accession into EU On its accession into EU, Malta negotiated a protocol ( 4 7) which states 'Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifYing or supplementing those Treaties, shall affect the application in the territory of Malta of national legislation relating to abortion' ( 48).

Maltese Law i •• •· I' " . '

5