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National consultation on human rights

 

National consultation on human rights

by Dr Ted Watt

The Coalition for the Defence of Human Life is made up of 13 support and advocacy bodies in Western Australia organized to resist schemes to terminate the lives of humans at any time between conception and natural death, but particularly at stages when humans are too young or too old or too sick to do their own organizing.

What are human rights?

Human rights are entitlements that humans are believed to have, simply by being members of the human species.

Can human rights be created by law?

No, because every human is believed to have these rights inherently, innately, not merely as a concession granted to him or her by other people or groups of people.

The law can do no more than endorse and protect human rights; it cannot create human rights.

Any right created by law cannot be a human right, a right of all humans, everywhere: it can only be a civil right of citizens within that particular jurisdiction.

Can human rights be abrogated by law?

No. If there are rights possessed by all humans, simply by virtue of their humanity, then the law at any particular place and time can neither create nor abrogate those rights.  The law can either endorse and protect inherent human rights, or it can fail to protect them, or violate them.

If any person or group of people takes it upon themselves to decide which humans are to count as humans with rights and which are not, then the very idea of human rights, inherent in every human being, has been abandoned.

How is the right to life understood?

As the right not to have one’s life taken if one is ‘innocent’.

Is the right to life a human right?

If it is not, then there is no point in talking about a human right to anything else. ‘Rights’ to free speech, political participation, privacy and so on can only be exercised if one is alive.  And if there are some categories of humans (‘the weak’, for short) who have no inherent right to their lives, and may be rightly killed by other humans (‘the strong’), then ‘the weak’ have no right to anything else either.  In that case there are no such things as inherent human rights for all.  There are only such civil rights as ‘the strong’ bestow on, or withhold from, whomever they please.

Why is the exclusion of humans before birth arbitrary and unjust?

Because humans are organisms, and their life is a continuum. Unlike an artefact, whose order is imposed on it from outside, the order exhibited in an organism is innately controlled and directed. The life of an organism does not begin at birth, but at conception, when an organism is already genetically complete - all the genetic information that will direct its development to maturity is already present — there will never be any more. A wombat fetus is just as much a wombat as an adult wombat. In the same way, a human fetus is just as much a human as an adult human. This is no more than basic biology.

If human rights are supposed to be inherent in all humans, then once you introduce any exclusions, on the basis of age, immaturity, dependence, etc., you are no longer talking about human rights at all, but merely about concessions allowed to favoured groups of humans, for the time being.

Any exclusion of unborn humans from the right to life could be used as a precedent for other exclusions.  Humans at the other end of their lives may become demented, and so totally dependent on others. In a few years, could we see a move to delete their right-not-to-be-killed?

Human rights as the overriding standard 

If human rights are to function as the overriding standard, superior to existing law or practice, they must be the kind of rights which can be applied without exception. It follows that such rights are few in number. A right-not-to-be-raped can be applied without exception.  It does not have to be ‘balanced’ against any other considerations – benefits, preferences, expectations, habits, practices, or anything else.

By contrast, a ‘right to privacy’ or a ‘right to free association’, of their nature, cannot be exceptionless.  They can only be understood with reference to other considerations.  For instance, a child’s ‘right to free association’ can only be understood in relation to the parents’ legal (and moral) responsibility to safeguard the child’s welfare, to the age of the child, to the sort of people the child is associating (or may associate) with and any dangers they may pose to the child’s welfare, and to any number of other considerations.

This complexity cannot be captured in any manageably brief form of words.

Human rights and uncertainty in the law

‘Human rights’ legislation, so its advocates tell us, would clarify the law.Nothing could be more implausible.

On the contrary, a multiplicity of ‘human rights’, of the kind (e.g., privacy, free association) that inescapably have to be ‘balanced’ against other rights and other considerations, will call for an expansion of discretion in the hands of judges. It is inevitable, then, that different judges will interpret these rights in divergent ways, according to their personal predilections – what else do they have to guide them?  This will make it more difficult for officials, and indeed for everyone, to be sure what the law requires of them.

Recommendations: 

1. Any plan to introduce ‘human rights’ legislation, in any form, should be abandoned. Such legislation already in force, as in the ACT and Victoria, is conceptually muddled concerning what can count as a human right. And in practice Human Rights Acts, in any form, make it harder for people to know where they stand in law, not easier. They are more likely to lead to a culture of litigation than to a ‘human rights culture’. They greatly extend the scope for judicial hubris.And they would inevitably increase the overload on the courts.

2. The law in several Australian jurisdictions already permits the intentional killing of humans at two stages of their lives: the embryonic stage, when they may be destroyed in experiments, and the fetal stage, when they may be destroyed by abortion. The presence of those laws on the statute book entails, in the minds of legislators who voted for them, the rejection of any notion of human rights, that is, of rights that belong to all members of the human species simply by virtue of their humanity.

Unless these laws in violation of human rights are first repealed, any attempt to pass any bill on human rights, whatever its form or content, would be a nonsense.

3. If existing laws permitting abortion and destructive experimenting on human embryos are not repealed, and ifnew Human Rights legislation goes ahead, all mention of the ‘right to life’ should avoid any attempt to restrict that right to humans who have been born.

Australian parliaments would than have the task of attempting to justify, in the light of new Human Rights legislation, leaving laws on their statute books which violate the human right which is indispensable to the exercise of all other human rights.

Voice your opinion!

In your own words say why you oppose a charter of rights but that if we have one it MUST protect the right to life for all, including the unborn.Include your name and street address.

You can send your submission by email to: http://humanrightsconsultation @ag.gov.au  or by mail to:

National Human Rights Consultation Secretariat
Attorney-General’s Department, Robert Garran Offices,
National Circuit, BARTON ACT 2600


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