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BEFORE: |
CHAIRPERSON: Ms.
Christine Chanet (France)
VICE-CHAIRPERSONS: Mr.
Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden),
Mr. Hipolito Solari
Yrigoyen (Argentina)
RAPPORTEUR: Mr. Ivan
Shearer (Australia)
MEMBERS: Mr. Abdelfattah
Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr. Prafullachandra
Natwarlal Bhagwati (India), Alfredo Castillero Hoyos (Panama), Mr.
Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin (Switzerland), Mr.
Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah (Mauritius), Mr.
Michael O�Flaherty (Ireland), Mr. Rafael Rivas Posada (Colombia),
Sir Nigel Rodley (United Kingdom), Ms. Ruth Wedgwood (United
States), Mr. Roman Wieruszewski (Poland) |
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PermaLink: |
https://www.worldcourts.com/hrc/eng/decisions/2005.07.26_Queenan_v_Canada.htm |
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Citation: |
Queenan v. Canada, Comm. 1379/2005, U.N. Doc. A/60/40, Vol. II, at
478 (HRC 2005) |
Alt. Style
of Cause: |
Queenan v. Canada |
Publications: |
Report of the Human Rights Committee, U.N. GAOR, 60th Sess., Supp.
No. 40, U.N. Doc. A/60/40, Annex VI, sect. II, at 478 (Oct. 3, 2005) |
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1. The author of the
communication dated 11 November 2004 is Peter Michael Queenan, a
Canadian-South African citizen, born in 1957 in South Africa and resident of
Canada. He submits his petition on behalf of Canadian unborn children and
claims that they are victims of violations by Canada of articles 16, 26, 6
and 7 of the International Covenant on Civil and Political Rights (the
Covenant). He is not represented by counsel.
FACTUAL BACKGROUND
2.1 The author, as a Canadian citizen, is presenting his communication on
behalf of Canadian unborn children, because they cannot present the
complaint themselves. According to the author, the practice of abortion is
openly facilitated and sponsored by the State party. He claims that this
practice is the consequence of the fact that unborn children do not benefit
from legal protection and are denied the right to life by the State.
2.2 The author submits a copy of part VIII, section 223 of the Canadian
Criminal Code, which states that a child becomes a human being when born,
and argues that an unborn human's life may be freely taken as long as it is
done while the child is in the womb of its mother.
2.3 The author further submits statistics from 1987 to 2001, published by
Statistics Canada on the official Canadian Government website, and points
out that approximately 100,000 lives are currently taken every year by
doctors in the State party.
2.4 The author argues that although abortion is a social and moral issue, it
is also a human rights issue which affects both the mother and child, who
should have the same fundamental rights. He further claims that popular
acceptance or belief cannot supersede human rights, and that the fact that
there is a modern consensus reflecting the view that abortion is an
acceptable practice does not make it tolerable. He adds that polls in the
State party indicate that most people want women to have the choice of
abortion, but that the issue of human rights is not up to the outcome of
polls and that the victims are not being included in the sample being
polled.
THE COMPLAINT
3.1 The author alleges a violation of article 16 of the Covenant in that the
State party does not recognise unborn children as persons before the law,
because section 223(1) of the Criminal Code of Canada limits the definition
of human beings to post-birth children.
3.2 The author claims that unborn children are victims of a violation of
article 26 of the Covenant, as the State party does not treat unborn
children as equal before the law, and does not provide them with legal
protection. He points out that Article 26 of the Covenant is by nature
intended to prevent all forms of discrimination against any human, without
distinction of any kind, including distinction such as" birth or other
status", and that it covers all of humankind, as can be implied from the use
of words like "all persons", "everyone", "all members of the human family",
"human beings" and "all individuals". He opines that the only
non-discriminatory definition of "human" or "person" includes all living
members of the human species, and that a line cannot be drawn to identify
when an embryo becomes human in terms of human rights.
3.3 The author further alleges that the State party has violated article 6
of the Covenant by legalising, facilitating and funding the process by which
an unborn human's life can be taken. He emphasises that article 6 protects
the right to life of "every human being", and that article 223(2) of the
Criminal Code, which does not recognise homicide performed on unborn humans,
does not protect unborn humans' right to life. The author also refers to
article 6, paragraph 5, which provides that the death penalty shall not be
carried out on pregnant women. He adds that the Convention on the Rights of
the Child, ratified by the State party, which defines a child as "every
human being below the age of eighteen years unless under the law applicable
to the child, majority is attained earlier", does not mention a lower limit,
such as post-birth. The preamble of the same convention refers to the
Declaration of the Rights of the Child, according to which "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". The author contends that the Covenant would not contradict, disagree
with or be more discriminatory with regard to children than the Convention
on the Rights of the Child.
3.4 The author finally claims a violation of article 7 of the Covenant in
that it allows abortion which he defines as a cruel, tortuous and inhuman
practice. He emphasises that the procedures of abortion are not regulated by
the State.
3.5 With regard to exhaustion of domestic remedies, the author claims that
these are ineffective, as numerous steps have been taken the last thirty
years to have the rights of unborn recognised in Canada. He also considers
that the State party has been given a chance to address this issue and has
not shown any interest in it. The author argues that an appeal attempting to
have the right to life and legal protection given to the unborn was brought
to the Supreme Court and dismissed in March 1989. Petitions are regularly
being submitted to the State, which has not taken any action to recognise
the right to life of unborn humans. He finally points out that in recent
years, two Private Member's Bills have been submitted to Parliament for
recognition of the rights of the unborn, and have been refused.
3.6 The author states that the complaint has not been submitted to any other
procedure of international investigation or settlement.
3.7 In an additional submission dated 22 April 2005, the author claims that
his petition does not constitute an actio popularis, because the victims
cannot submit the complaint themselves. The author believes that any citizen
of a State party should have the right to appeal to the Committee regarding
gross violations being performed by that State. He claims that limiting this
right to those who are directly involved or related or associated, would
leave the door open for States to perform injustices as long as the State
could restrict access to or association with the victims. He thus feels
justified, as a citizen of the State party, to represent the victims in his
complaint.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
4.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
4.2 The Committee notes that the author does not claim that he is a victim
of the alleged violations of the Covenant by the State party. The author
states that he is submitting this communication on behalf of all unborn
children in the State party in general. The Committee notes that, in
accordance with Article 1 of the Optional Protocol, communications must be
submitted by or on behalf of "individuals" who claim "that any of their
rights enumerated under the Covenant" have been violated. The Committee
considers that in the absence of specific claimants who can be individually
identified, the author's communication amounts to an actio popularis and is
therefore inadmissible under article 1 of the Optional Protocol.
5. Accordingly, the Committee decides:
(a) That the communication is inadmissible under article 1 of the Optional
Protocol;
(b) That this decision shall be transmitted to the State party and to the
author.
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.
The text of an individual opinion signed by Committee member Ms. Ruth
Wedgwood is appended to the present document.
APPENDIX
INDIVIDUAL OPINION BY COMMITTEE MEMBER MS. RUTH WEDGWOOD
Under the complaint procedure of the First Optional Protocol of the
International Covenant on Civil and Political Rights, the Human Rights
Committee is empowered to receive communications from particular individuals
who have suffered violations of the Covenant through state action. But, even
in compelling circumstances, the Committee's procedural rules have not
permitted the Committee to engage in a declaratory judgment, or to accept
petitions on behalf of a general class of individuals.
Unlike some other human rights procedures, such petitions are considered to
be actio popularis that fall outside the limited terms of the Optional
Protocol. See Manfred Nowak, U.N. Covenant on Civil and Political Rights:
CCPR Commentary (2nd revised edition 2005), at pp. 829-837.
The present petition, filed against Canada by author Peter Queenan on behalf
of Canadian unborn children, alleges violations of the right to life under
Article 6 of the Covenant through state funding of abortions, and other
violations. The Committee has concluded that it lacks jurisdiction to
proceed upon such a complaint because it is brought as a general action on
behalf of an entire class of individuals. This procedural rule does not
prejudge any of the moral or legal issues that the author of the complaint
would like to raise.
[Signed] Ms. Ruth Wedgwood
Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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