Fields: journal of Huddersfield student research

Available open access at: https://www.fieldsjournal.org.uk/

Controlling overpopulation: is there a solution? a human rights analysis

James Brown
LL.B. ‘20 University of Huddersfield, Queensgate, Huddersfield, West Yorkshire, HD1 3DH

ARTICLE INFO ABSTRACT

Article history:
Received 17 October 2020 This paper is concerned with the serious problem of overpopulation, a challenging
Received in revised form 17 phenomenon that is causing increased stress to the earth and its resources with
February 2021 each passing day. The implications of overpopulation are far-reaching and include,
Accepted 09 April 2021 but are not limited to, environmental degradation and widespread poverty.
Correspondingly, this paper identifies that there is a pressing need to address this
Keywords: problem with a human rights compatible population control policy. To arrive at
this point, this paper will identify the difference between regulationist and
Overpopulation voluntarist approaches to policymaking. Accordingly, the Chinese one-child
Human rights policy introduced in the 1980s will be analysed as a famous and fitting example of
China a regulationist policy which quantitatively restricted the number of children that
One-child policy a couple could have. The analysis of this policy will indicate to what extent
UN regulationist policies introduced to control population can withstand human
Sustainable development goals rights based analysis.
Population control
Policymaking The research will then go further, seeking to offer human rights friendly solutions
Liberties to the need implement some form of population control. This paper will first draw
Indonesia upon the Indonesian population control response seen throughout the 1970s and
80s as an example of a successful voluntarist approach which provides logical
solutions. These solutions are identified as being largely voluntarist, and
promoting free and informed decision making in the area of family planning. More
precisely, this paper will coin the idea of ‘generating contentment’ as a policy
which will delay the desire for children. The idea of generating contentment will
focus on improving living standards in developing countries via the adoption of
the United Nations’ Sustainable Development Goals, as well as the propagation
of widespread family planning services and the implementation of these into
educational curriculums. The implementation of these goals will be a primary
driver into reducing population by achieving outcomes such as broadened and
emphasised career opportunities for women, and challenging customs that supress
sexual education and contraception access.

Introduction this. Instead, it will focus on policies to control the

population, by reviewing methods that have already
Overpopulation is an increasingly concerning and been used, namely the Chinese one-child policy, and
contemporary issue in the modern world. Science analyse their implications on human rights amongst
has clearly identified that our current way of life other things. Current literature in this area
cannot be sustained for much longer due to the identifies the importance of the relationship
incompatible duality between finite resources and between population control policies and human
an infinitely expanding population. Whilst maybe a rights, and more broadly that regulationist policies,
change to the mode of resource consumption could such as the one-child policy, are more likely to erode
be a solution; this paper will not concern itself with

Published under Creative Commons Attribution License 4.0

University of Huddersfield Press unipress.hud.ac.uk
2

liberties and human rights. The literature, however, and applies its applicability to possible population
falls short on supplying an analysis of these policies control policies. However, there are a few issues
using real life examples, predominantly due to its with Eisenhauer’s research, leading to gaps in the
age, and thus gives latitude for an expansion on its literature which are remedied here. Firstly, and
arguments that are primarily speculative in the most importantly, the study is not a recent piece of
absence of case studies such as the Chinese policy. research. As such, it does not benefit from discourse
Fittingly, this paper will attempt to pick up where around the highly significant Chinese one-child
the literature has left off, and apply a fresh analysis policy, which came into place a year after the
to population control policies and the extent of their article’s publication. The current study takes
legality within the context of international norms. advantage of this, and provides a nuanced
This paper will then present some possible solutions discussion of this policy to illustrate the inherent
which rest mainly within ‘voluntarist’ policies injustices of government mandated quantitative
including, but not limited to, incentivisation polices population control policies. The age of the paper
and educational and accessible approaches to family also renders it blind to solutions such as the United
planning, with a discussion of any implications they Nations’ Sustainable Development Goals (SDGs).
may also present. Many of these possible solutions In fact, Eisenhauer even argues that at the time,
have been influenced by the Indonesian population “The UN position… is not satisfactory for dealing
policy within the 1970s and 80s which will be with the population problem” and calls for “stronger
discussed in further depth. In addition, the United action”. 2 Therefore, this paper updates this
Nations’ seventeen Sustainable Development discourse by focusing on the utility of the new
Goals, adopted in 2015, should be deemed SDGs as a nuanced but effective approach to
instrumental in the enactment of successful policy population control, which Eisenhauer’s paper did
in this area, as they address many of what this paper not have the chance to analyse.
considers the root causes of population growth;
poverty, overconsumption, inequalities, economic A further issue with Eisenhauer’s paper is the
factors and lack of innovation. Western centric view it takes of the discussion,
specifically with respect of the United States. For
example, focusing on solutions which are much
Current literature more accessible in the west, such as the imposition
of education fees. 3 Therefore, it does not
A review of the existing literature on the legality of satisfactorily address the problem where it is most
possible population control policies has identified a prevalent, in developing countries, and this is a
few key works in this area. The 1978 article: ‘Legal missed opportunity which will be appropriately
Implications of Population Control: A Practical covered here.
Reevaluation of Some Human Rights
Considerations’ by Susan Eisenhauer in the Another piece of literature that this author deems
Fordham International Law Journal is an important is a 1971 article appearing in the Harvard
authoritative paper in this field. 1 The paper Law Review which is silent as to the author’s
identifies the problem of overpopulation and the details. The article, ‘Legal Analysis and Population
possibilities available with respect of population Control: The Problem of Coercion’,4 is again very
control policies. Like this paper, it identifies the US centric and suffers from age, but offers a very
international human rights framework of the time interesting discussion of the types of policies

1 S C Eisenhauer, ‘Legal Implications of Population Control: A Practical Reevaluation of Some Human Rights
Considerations’ (1978) 2(1) Fordham Int Law Journal 1.
2 Ibid, 42.

3 Ibid, 31.

4 Unnamed Author, ‘Legal Analysis and Population Control: The Problem of Coercion’ (1971) 84(8) Harvard Law Review

1856.
 3

available to deal with overpopulation. The paper possible solutions to overpopulation. This provides
analyses the two possible approaches to population a platform for elaboration on the applicability of the
control, terming them as ‘voluntarist’ and listed human rights principles to population control
‘regulationist’. Using this language allows the policymaking in the future.
current study to analyse possible policies which may
lead to successful population control. For example,
we see that the Chinese one-child policy is a Overpopulation – the extent and implications
regulationist policy, whereas increasing education
and addressing social needs would fall under a Overpopulation presents a pressing crisis which
voluntarist policy, which encourages free decision will target our way of life. The global population is
making yet may be coercive in guiding an individual nearing 8 billion, having almost doubled in just 46
(perhaps unconsciously) to make decisions which years from 1974.7 Scientists around the world have
will reduce their family size. 5 This paper will tried to highlight the severity of this situation. In
expand on this language and by utilising a 1992, over 1700 scientists, of which 104 were Nobel
‘voluntarist’ and ‘regulationist’ analysis to laureates, drafted a warning to humanity. 8 They
differentiate possible policies, identify that urged that “we must accept limits” to the
regulationist approaches are much more likely to “unrestrained population growth” due to the finite
have a pernicious effect on human rights. amount of resources on our planet, highlighting
that even in 1992, when the population was just 5.4
Finally, the 2019 paper, ‘Population Law and billion, one in five people lived in poverty, without
Policy: From Control and Contraception to Equity enough to eat, and one in ten suffered serious
and Equality’ by Victoria Mather is a much more malnutrition.9
recent analysis on population control and human
rights. 6 The paper summarises the positions of The implications stretch far beyond just poverty,
previous population control policies, from the and put together can set off a perpetual chain-
‘regulationist’ Chinese one-child policy to the reaction of negative consequences. In their warning,
sterilisation campaigns in India, to more voluntarist the scientists recognised the damage that
policies such as in Indonesia. Mather then overpopulation could have on six significant
introduces potentially relevant human rights mechanisms of our planet:
considerations, such as the applicability of first,
second, third and fourth generation rights to 1) The atmosphere – With CO2 emissions
population control. In general, the article feels more growing 12 fold during the 20th century, a
descriptive than analytical, and fails to analyse the growing population is a root cause of the
policies that it lists under the lens of human rights. global warming crisis. 10 With an
Furthermore, Mather does not put forward any increasingly mechanised lifestyle, the
demand for fossil fuels can only grow.11 The

5 Ibid, 1882.
6 V Mather, ‘Population Law and Policy: From Control and Contraception to Equity and Equality’ (2019) 50(3) St Mary’s
Law Journal 917.
7 The global population hit 4 billion in 1974, expected to hit 10 billion by 2060 – available at:

https://www.worldometers.info/world-population/ accessed 3 July 2020.

8 Union of Concerned Scientists, ‘World Scientists’ Warning to Humanity’ (1992) available at:

https://www.ucsusa.org/sites/default/files/attach/2017/11/World%20Scientists%27%20Warning%20to%20Humanity%201992
.pdf accessed 4 July 2020.
9 Ibid, P1, col 2.

10 United Nations Population Fund, ‘Population and Environmental Change’ (2001) P5, available at:

https://www.unfpa.org/sites/default/files/pub-pdf/swp2001_eng.pdf accessed 3 Feb 2021.

11 Larry LeDoux, ‘Does Population Growth Impact Climate Change?’ Scientific American (29 Jul 2009) available at:
4

extra air pollution and greenhouse increasing population. As a result, per

emissions created by trying to supply more capita food production is decreasing in
resources depletes the ozone, enhancing many parts of the world.16
ultraviolet radiation. This leads to air 5) Forests – rainforests are being rapidly
pollution, global warming and acid rain. destroyed due to deforestation to fulfil an
Damaging crops, ecosystems and animals.12 increasing need for space for livestock
2) Water resources – the pollution of rivers farming, as well as the growth of urban
and lakes damages depletable water settlements. 17 This leads to a loss of
resources and ecosystems essential for food habitats for flora and fauna alike, as well as
production and other human systems. greater pollution.18
There are many water shortages in places 6) Living species – there would be an
that rely on freshwater, such as landlocked irreversible loss of species as a result of
countries. Freshwater sources will further many of the effects above.19 This will reduce
deplete with a growing population, a genetic diversity and have huge knock on
phenomenon known as water scarcity. 13 effects on food chains, known as a ‘trophic
Which will in turn affect crop and livestock cascade’.20
production, and may lead to food
shortages.14 Whilst this is not a scientific article, it is clear that
3) Oceans – Global warming has led to rising overpopulation is an urgent crisis, and its
sea levels, which threatens ecosystems such implications are grave and interrelated. The
as in the Arctic as well as coastal cities such intersectional nature of these implications would
as Venice. Furthermore, overfishing is very lead to crippling and irreversible damage to our
prevalent, especially in coastal regions planet,21 thus action must be taken swiftly before we
relying on seafood as the main element of cross this rubicon.
their economy. This will lead to the collapse There is evidence to support the idea that
of ecosystems, food shortages and economic overpopulation is largely a social issue, given that
downturn.15 90% of population growth occurs in poorer
4) Soil - soil productivity is decreasing due to countries. 22 This may suggest that there is an
the demand for more crops to feed the important link between overpopulation and

https://www.scientificamerican.com/article/population-growth-climate-change/ accessed 3 Feb 2021.

12 I Manisalidis et al, ‘Environmental and Health Impacts of Air Pollution: A Review’ (2020) 8(14) Front Public Health:
doi: 10.3389/fpubh.2020.00014
13 Gioietta Kuo, ‘Overpopulation and water scarcity leading to world future food crisis’ Stanford MAHB (12 Jul 2020)

available at: https://mahb.stanford.edu/library-item/overpopulation-and-water-scarcity-leading-to-world-future-food-crisis/

accessed 3 Feb 2021.
14 Ibid.
15 Katie Luoma, ‘How does Population Growth Impact Ocean Health?’ Population Education Blog (16 Nov 2016) available

at: https://populationeducation.org/how-does-population-growth-impact-ocean-health/ accessed 3 Feb 2021.

16 Union of Concerned Scientists (n8).

17 AA Rivera, ‘Deforestation and Overpopulation’ (1995) Carta Inf (Spanish) PMID:12179422.

18 Union of Concerned Scientists (n8).

19 Ibid.
20 Renee Cho, ‘Why Endangered Species Matter’ Columbia University Earth Institute (26 Mar 2019) available at:

https://blogs.ei.columbia.edu/2019/03/26/endangered-species-matter/ accessed 4 Feb 2021.

21 Robert Sanders, ‘Scientists uncover evidence of impending tipping point for earth’ Berkeley News (6 Jun 2012) available

at: https://news.berkeley.edu/2012/06/06/scientists-uncover-evidence-of-impending-tipping-point-for-earth/ accessed 3 Feb

2021.
22 R Smith, ‘Overpopulation and overconsumption’ (1993) 306 BMJ 1285.
 5

socioeconomic factors such as poverty and reduced This policy was introduced to curb the spiking
access to education. Correspondingly, there is logic population in China, to alleviate many issues such as
in addressing the socioeconomic factors in these scarcity of resources, high unemployment rates and
countries to indirectly influence population growth to encourage economic growth rather than the
rather than focusing on purely regulationist policy. strain it was facing.25 Such a strict policy was not
This will be discussed in further depth throughout without opposition, especially in rural areas.
the paper. Consequently, the CCP published a document
known as ‘Document 7’, which would allow local
Nevertheless, the repercussions of overpopulation governments some flexibilities to make
could be fatal to humankind and thus it is imperative exceptions, 26 but the policy remained largely
that governments act swiftly to curb it. It is compulsory. In fact, in many cases, the latitude
generally accepted that are only two natural given to local governments to enforce this policy led
approaches that can be adopted in population to many more human rights issues, such as
control polices; to directly regulate the ability to involuntary abortions, sterilisations, etc. This will
procreate or to achieve the same result through be explored further in the discussion of the policy’s
more indirect, gentle and coercive means. These are implications. Since 2013, the CCP began to relax the
the ‘regulationist’ or ‘voluntarist’ approaches to policy, culminating in its termination in 2016.27
policy making,23 in keeping with the language of the
Harvard Article. The Chinese one-child policy is the Enforcement and punishment
most famous example of population control and was
a strict regulationist policy. This paper will analyse The enforcement of the policy did not come from
the Chinese policy to highlight the implications of the central government, but instead occurred at a
regulationist policy in regard to population control. provincial level with the enforcement procedures
constructed by the local governments. This allowed
the policies to complement the local conditions. 28
The Chinese one-child policy Due to the flexibilities that local governments were
permitted to make under Document 7, some
Background provinces would allow a second child in limited
circumstances, such as the first being disabled, or
The Chinese Communist Party (CCP) and its then even female. 29 However, because the power of
leader, Deng Xiaoping, introduced the regulationist enforcement was allocated on a provincial level, the
one-child policy in 1979, and formally implemented different mechanisms varied throughout China. The
the policy in 1980 in an open letter from the CCP.24 most common method was a mix of incentives and

23 Unnamed Author (n4) 1865.

24 CCP, ‘Open Letter of the Central Committee of the Communist Party of China to the General Membership of the
Communist Party and the Membership of the Chinese Communist Youth League on the Problem of Controlling
Population Growth in Our Country’ (Sept 25, 1980).
25 W Huang, ‘How does the one child policy impact social and economic outcomes?’ (2017) 387(Sept) IZA World of

Labour 1, 2.
26 CCP Central Committee, ‘CCP Central Committee’s Comments on the Report Regarding Family Control by CCP

Committee in National Family Planning Commission’ CCPCC Document [1984] No 7.

27 F Wang, B Gu & Y Cai, ‘The end of China’s one-child policy’ Brookings (2016) available at:

https://www.brookings.edu/articles/the-end-of-chinas-one-child-
policy/#:~:text=Starting%20on%20January%201%2C%202016,for%20the%20last%2035%20years. accessed 8 Feb 2021.
28 B Li & H Zhang, ‘Does population control lead to better child quality? Evidence from China’s one child policy

enforcement’ (2017) 45(2) J Comparative Economics 246.

29 Matt Soniak, ‘How does China Enforce its One-Baby Policy?’ Mental Floss (5 Jan 2012) available at:

https://www.mentalfloss.com/article/29647/how-does-china-enforce-its-one-baby-policy accessed 6 July 2020.

6

rewards for compliant parents, and punishments for experience preferential treatment when applying
those who were not, regardless of the intention of for government jobs or even receive a ‘certificate of
the couple. honour’.35

Policies such as this appear draconian, as one would On the other end of the spectrum, the treatment of
naturally expect the implementation of such a policy ‘non-compliant’ couples was not nearly as amicable,
to be rooted in nationwide education and the as many were subjected to punishments. These
provision of contraception. However, whilst this punishments were largely monetary, yet there were
was something the central Chinese government more extreme punishments depending on the
took seriously,30 it did not resonate with the public province. Fines were regularly levied against
opinion. There did not seem to be a positive couples that had more than one child. It is estimated
encouragement for its use on a nationwide level, that by 2012, China had levied, since the adoption of
which was reflected in the general attitude of the one-child policy, around two trillion yuan
Chinese people regarding contraception. By 2004, (£206 billion).36 The fines were usually around 10-
as focus group thought that men should not take on 50% of the annual income of the couple, and even
the greater burden of contraception, and would more if it was a third child.37 Furthermore, there
prefer that women were sterilised.31 In fact, China was a household registration system in China, with
only lifted its ban on the advertisement of condoms households being listed as a worker or a peasant
in 2014. 32 This indicates that the provincial registration, due to the Communist state. Peasants
governments had been content with policies of lived off the land whilst workers would draw money
incentives and punishments, rather than a drive for from the state, being eligible for things such as a
more accessible contraception and improved pension, access to recreational facilities and much
education. more.38 Worker households thus had a lot more to
lose through non-compliance with the one-child
Many incentives were offered in most provinces for policy. They could lose certain benefits attached
compliance with the one-child policy. Common with the registration, or even have it repudiated
types of incentives included free water, tax breaks, entirely,39 as well as losing their job.
special pension benefits and monthly stipends from
the government. 33 Soniak goes on to note that in However, many provinces found themselves under
some instances, the child of a compliant couple was immense pressure to conform with a birth quota set
even awarded bonus points in school entrance
exams. 34 Compliant couples would frequently

30 Information Office of the State Council of the People’s Republic of China, ‘Family Planning in China’ [1995] White
Paper, Chapter V, available at https://www.fmprc.gov.cn/ce/celt/eng/zt/zfbps/t125241.htm accessed 7 July 2020.
31 K Hardee, Z Xie & B Gu, ‘Family Planning and Women’s Lives in Rural China’ (2004) 30(2) Int Family Planning

Perspectives 68, 71.

32 Katrin Buchenbacher, ‘What type of contraception does China’s younger generation prefer?’ The Global Times (15 Oct

2017) available at http://www.globaltimes.cn/content/1070279.shtml accessed 12 July 2020.

33 Soniak (n29).

34 Ibid.

35 Ibid.

36 The Economist, ‘The one-child policy - The brutal truth’ The Economist (23 Jun 2012) available at:

https://www.economist.com/china/2012/06/23/the-brutal-truth accessed 14 July 2020.

37 J Li, ‘China’s One-Child Policy: How and How Well Has it Worked? A Case Study of Hubei Province, 1979-88’ (1995)

21(3) Population and Development Review 563, 564.

38 Ibid, 565.

39 Susan Greenhalgh, ‘The Peasantization of the One-Child Policy in Shaanxi’ in Deborah Davis & Stevan Harrell (eds),

Chinese Families in the Post-Mao Era (University California Press, 1993).

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by the government,40 which, in turn, would lead to Implications of this policy

the execution of many more illegal and extreme
punishments. These included mass abortion International human rights
campaigns as well as forced sterilisation,
predominantly carried out on women. 41 In fact, Clearly, the limitations placed on couples in China
many academics argue that the use of abortion was by the one-child policy and the resulting
given more emphasis by China in its family enforcement practices raise many questions from a
planning policies than actual pre-birth human rights perspective.45 With the pressing need
contraception. There is considerable evidence that
42 to introduce population control policies in an era
this has led to a small ratio of women compared to where overpopulation is headed towards breaking
men in China, after many parents would abort their point, it is paramount to identify where previously
child after discovering the foetus was female. The used policies such as China’s one-child policy
illegal practices of these local governments came to infringe upon international human rights laws.
light when a woman named Mao Hengfeng, now a
human rights activist, exposed her story. Upon As far as rights of the unborn child go, the right to
falling pregnant with a fourth child, she received an be born is not one that is conventionally recognised
involuntary abortion from the provincial under international human rights law. The UN
government, who allegedly drowned the foetus in a Convention on the Rights of the Child (CRC) recognises
bucket. Furthermore, she had suffered severe a right to life under Article 6. However, it is
haemorrhaging and instead of being treated, the typically understood that this convention does not
officials attempted to give her a hysterectomy. Mao apply to pre-natal children unless the ratifying state
and her husband then lost their jobs and business chooses to interpret it this way. This was, of course,
licences and she was then detained in a mental a contentious issue in the drafting of the CRC, and
asylum.43 the working group left the wording of whether the
rights in the CRC apply to unborn children very
These unnerving stories instilled fear around China. ambiguous, with the purpose of getting more states
Young couples expecting a second child were so to ratify it,46 and apply the convention in line with
fearful that many fled to different provinces to their domestic laws. This is of no further relevance,
register a child under a separate name in order to as any state which would want to protect the rights
try and evade the authorities.44 of the unborn child is very unlikely to implement a
population limiting policy.

In this light, it is better to analyse the effect of the

one-child policy in regard to the human rights of the

40 Li (n37).
41 W Feng, B Gu & Y Cai, ‘The End of China’s One-Child Policy’ (2016) 47(1) Studies in Family Planning 83, 85.
42 J Liu, Y Englert & W Zhang, ‘Is Induced Abortion a Part of Family Planning in China?’ in Igor Lakhno (ed), Induced

Abortion and Spontaneous Early Pregnancy Loss – Focus on Management (IntechOpen, 2019) available at:
https://www.intechopen.com/books/induced-abortion-and-spontaneous-early-pregnancy-loss-focus-on-management/is-induced-
abortion-a-part-of-family-planning-in-china- accessed 16 July 2020.
43 Verna Yu, ‘ ‘I could hear the baby cry. They killed my baby… yet I couldn’t do a thing’: The countless tragedies of

China’s one-child policy’ South China Morning Post (15 Nov 2015) available at: https://www.scmp.com/news/china/policies-
politics/article/1879116/i-could-hear-baby-cry-they-killed-my-baby-yet-i-couldnt accessed 17 July 2020.
44 Soniak (n29).
45 Bing Jia & Hanibal Goitom, ‘Formulation of the One-Child Policy in China’ Lib of Congress (Nov 19 2013) available at:

https://blogs.loc.gov/law/2013/11/formulation-of-the-one-child-policy-in-china/ accessed 4 July 2020.

46 F Broughton, ‘Are unborn children rights-holders under the United Nations Convention on the Rights of the Child?’

(2010) The Boolean 25.

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parents. The main source of international human Covenant on Economic, Social and Cultural Rights
rights law is the UN International Covenant on Civil (ICESCR) is an exemplification of this, as suggested
and Political Rights (ICCPR), which China has by Karel Vašák, the jurist behind the generational
signed but not ratified. 47 The preamble for the categorisation of rights.51 Article 10 provides that:
treaty states that all rights are derived from the
“inherent dignity of the human person”. Article “…the widest possible protection
23(1) states that “family is a fundamental group unit and assistance should be accorded
of society and is entitled to protection by society and the family which is the natural and
the state”. This is very similar to the protection fundamental group unit of society,
afforded to private and family life under Article 8 of particularly for its establishment.”
the European Convention on Human Rights. These
rights can be interpreted in both ways; that there is The ICESCR’s protection of the family,
a right to have any type of family as desired “particularly for its establishment”, expressly
(including as many children as an individual may provides second generation protection of the
want) that can be protected/cared for by the family freedom to procreate. This acts as a further
unit, or that there is only protection of the family indication that international human rights law
that already exists and which any prospective family cannot accept strict regulationist approaches which
unit is not yet afforded. In practical application, interfere with the right to procreate freely. This
most states favour the first interpretation, gives more weight to the suggestion that
considering that China, a country that has not voluntarist approaches are the most appropriate
ratified the ICCPR, is the only state that has means of dealing with population control as they do
quantitatively limited family numbers in such a not impose interferences on the actual right itself,
widespread way. Therefore, any future policy to but attempt to guide and gently coerce individuals
limit population should do so in such a way which to engage in effective family planning.
affords the family a choice, based largely on
education and providing incentives, rather than International soft law
punishment.
Soft law is invaluable in aiding the interpretation of
As Mather has contended, the ICCPR is, in many Article 23 of the ICCPR and Article 10 of the
ways, an instrument guaranteeing ‘first generation’ ICESCR by expanding on the intended protections
rights.48 She characterises these rights as “freedom of the family. The UN, the body behind the
from, rather than freedom to”.49 Accordingly, they aforementioned covenants, has expanded upon the
may not be the most appropriate means to provide rights to have a family, and expressly the freedom
a freedom to procreate. Mather, in her discourse, to procreate, under various soft law instruments on
does not explicitly link the compatibility of multiple occasions. Firstly, in the Human Rights Day
generational rights to population control policies, Declaration 1966, “the opportunities to decide the
but her discourse implies that second generation number and spacing of children is a basic human
rights are the most applicable as ‘freedom to’ rights. right”.52 This was expanded upon into a resolution
She identifies that second generation rights which adopted in the International Conference on Human
assure freedoms require positive obligation, or Rights, Tehran in 1968. Resolution XVIII said that
protection, from the state.50 The UN’s International “couples have a basic human right to decide freely

47 UN Treaty Collection, ‘Status of Treaties: 4. ICCPR’ available at:

https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND accessed 8 Feb 2021.
48 Mather (n6), 940.
49 Ibid.

50 Ibid.

51 C Wellman, ‘Solidarity, the Individual and Human Rights’ (2000) 22(3) Human Rights Quarterly 639.

52 United Nations, Human Rights Day Declaration on Population (10 Dec 1966).
 9

and responsibly on the number and spacing of their by the existence of a rule of law
children”. 53 Furthermore, in 1984, the UN gave requiring it.”57
further recommendations for the implementation of
the world population plan of action. Correspondingly, opinio juris may be identified in
Recommendation 25 said that “Governments the various reactions to the Chinese one-child
should… make universally available… the means to policy. However, from the research it can be
assist couples and individuals to achieve their observed that significant condemnation of the
desired number of children”. 54 Taken together, policy did not occur,58 which would have been an
there is an indication of a strong mentality within indication of opinio juris. Nevertheless, China, as an
the United Nations that there should be no emerging superpower and an integral component of
restriction on the couple’s right to choose when and world trade was a country that would be foolish to
how to have any children. condemn. President Biden, as a Senator in 1985,
reportedly blocked a motion to condemn China due
International soft law is not only important in to the worries that it would “interfere with the
aiding the interpretations of legally binding normalization of trade relations”.59 In essence, the
instruments such as the ICCPR, but can evolve into lack of condemnation does not necessarily reject the
customary international law. 55 Article 38(1)(b) of constitution of opinio juris.
the Statute of the International Court of Justice
describes customary law as “a general practice Moreover, if one reviews the behaviour of other
accepted as law”. The mentality of the UN and its countries which have experienced population issues,
members leading to the constitutions of the various it becomes clear that they did not behave in the
soft law must be sufficiently cogent to evince opinio manner that China did. For instance, a ‘two-child
juris, to accept the right to self-family planning as norm’ has been utilised by many countries,
customary law. The International Court of Justice including Vietnam 60 and Indonesia. 61 The
in Nicaragua v United States 56 asserted that opinio difference here is that these policies were not
juris will be present if: enforced, and were more suitably equivalent to
governmental objectives that were met via
“States taking such action or other contraception campaigns etc.62 Accordingly, it can
States in a position to react to it, be seen that apart from China, countries struggling
must have behaved so that their with overpopulation have not acted as restrictively
conduct is evidence of a belief that and this may be enough to constitute opinio juris.
this practice is rendered obligatory Whether this soft law can successfully constitute an

53 United Nations, Final Act of the International Conference on Human Rights, Tehran 1968, Resolution XVIII (3).
54 United Nations, Recommendations for the Further Implementation of the World Population Plan of Action 1984,
Recommendation 25.
55 M Olivier, ‘The relevance of ‘soft law’ as a source of international human rights’ (2002) 35(3) The Comparative and

International Law Journal of Southern Africa 289.

56 (1986) ICJ Rep 14.
57 Ibid, [207] 109.

58 There is a seeming lack of news articles and responses from governments etc. which indicate that the Chinese one-child

policy was condemned. It seems that the approach that was mainly taken was surveillance of the situation.
59 US Congress House Hearing, 112 Congress, ‘China’s one-child policy: The Government’s massive crime against

women and unborn babies’ Serial no 112-105 (22 Sept 2011) available at: https://www.govinfo.gov/content/pkg/CHRG-
112hhrg68446/html/CHRG-112hhrg68446.htm accessed 10 Feb 2021.
60 D Goodkind, ‘Vietnam’s One-or-Two Child Policy in Action’ (1995) 21(1) Population and Development Review 85.

61 D Warwick, ‘The Indonesian Family Planning Program: Government Influence and Client Choice’ (1986) 12(3)

Population and Development Review 453.

62 Mather (n6), 934.
10

opinio juris or not, it still reflects the mentality and Natural rights
general consensus of the State Parties to the UN.
Olivier has described soft law as having an Under a philosophical approach, the most
important role in “facilitating and mobilising the fundamental human rights are natural rights. John
consent of states”. 63 Furthermore, according to Locke has asserted in his idea of perfect freedom
Druzin, it generates a sense of collective that “all men are naturally in … a state of perfect
responsibility, which makes it “uniquely calibrated” freedom to order their actions… as they see fit…
for adoption and compliance.64 Thus, soft law is of without asking leave, or depending on the will of
weighty value in international matters, an any other man” 66 and no government “ought to
illustration being that resolutions alone must harm another in his life, health, liberty, or
receive a majority vote. possessions”. 67 Locke’s ideology is an established
It is also worth noting that soft law is frequently a part of modern politics - governments have a duty
conscious decision. As Guzman and Meyer identify, to protect and not interfere with the natural rights
soft law is elected for many reasons, especially when of the person, which Locke argues is a criterion for
states are “uncertain about whether the rules they a legitimate Government. 68 According to Locke,
adopt today will be desirable tomorrow”.65 This is ‘liberty’ is a natural right, or a right given by God
known as the delegation theory and gives rise to the that a human possesses naturally before entering
quasi-legal personality of soft law. For example, the into the rules of a political society. Liberty is widely
aforementioned resolutions and declarations interpreted. The Supreme Court of the United
regarding family numbers may, in an era of severe States has interpreted the word ‘liberty’ to include a
overpopulation, be problematic were they binding right to procreate.69 This liberty also includes the
law. Whilst this may weaken the future effectivity fundamental right to an abortion. Justice Anthony
of soft law on population control, it does not Kennedy famously stated in Planned Parenthood v
undermine the fact that the current consensus, and Casey: “At the heart of liberty is the right to define
perhaps even opinio juris is reflected by the soft law, one's own concept of existence, of meaning, of the
and they certainly complement the interpretation of universe, and of the mystery of human life”.70
the binding legal instruments.
In summation, the various soft law instruments Consequently, an analysis of natural rights further
indicate at least a general consensus, and at most, reinforces the notion that any population control
an opinio juris that population control policies policy should be aimed at minimising one’s desire to
should focus on voluntarist approaches which have a child, rather than directly interfering with a
attempt to reconcile a diminished ‘desire’ to have natural right whose protection forms the institution
multiple children without directly infringing the of legitimate government.
reproductive choices of couples, which strict
regulationist policies clearly do. Practical implications

The practical implications of the Chinese one-child

policy must also be considered before implementing

63 Olivier (n55).
64 B Druzin, ‘Why does Soft Law Have any Power Anyway?’ (2017) 7(2) Asian Journal Int Law 361.
65 A T Guzman & T L Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis 171.
66 Locke J & Shapiro I (ed), Two Treatises of Government and A Letter Concerning Toleration (First published 1689, Yale

University Press 2003) 101, §4.

67 Ibid, 102, §6

68 Ruth W Grant, ‘John Locke on Women and the Family’ in supra n66, 297.

69 Skinner v Oklahoma ex rel Williamson, 316 US 535 (1942).

70 Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992) [851] (Kennedy J).
 11

similar policies around the world. Mainly, the achieved via pre-natal sex selection (which was later
problems that materialise when a country goes from outlawed) with couples aborting fetuses who were
a large population to a relatively small one. not of their preferred sex. 74 This issue is
compounded by the fact that, fertility rates will drop
a) Aging population – because there are fewer women to carry children
than ever before, making it difficult to rebalance the
The Chinese policy has, foreseeably, led to an aging population.
population in China. This is a huge threat to its
economy. The country will have fewer young people This reflects the misogynistic attitudes that were
to look after the elderly, less people to work in the prevalent in China at the time and presents further
economy, all whilst there are more pensions to pay human rights concerns to the one-child policy. Once
and retirees to support. China will now be ill- the prenatal sex screening was prohibited due to the
prepared to protect the elderly.71 disparity in sex ratio,75 an increase in the prevalence
of female infanticide occurred. 76 This dangerous
b) Labour shortages – consequence of a quantitative policy in a place
This implication is intertwined with the difficulties where such misogynistic views exist threatened the
of having to care for an aging population. The fact lives of many newborn children. The right to life is
that there will not be enough young people to keep enshrined in Article 6 of the ICCPR and the State
up with China’s economic activity is worrying, and Parties have a duty to “respect and ensure to all
is further exacerbated by the need to support the individuals” this right.77 This includes the “duty to
country’s elderly. The decline in the labour force is take positive measures to protect the right to life”.78
already prevalent in the coastal regions of China, In short, a policy which could foreseeably lead to the
rising wages are concomitant with the shortages, to loss of life is a plain infringement of the state’s
attract migrant workers and increase obligations under this provision. It is paramount
productivity.72 that a state considers foreseeable implications such
as this when creating policy.
c) Sex-ratio –
Further evidence that a policy like China’s is not a
The policy has given rise to a disproportionately suitable way of managing the population is
male dominant ratio in China. Studies have found evidenced by the fact that China is now encouraging
that this is related to the enforcement practices. The couples to have a second child, as a baby boom has
provinces where the policy was policed strictly not been forthcoming since lifting the policy. This
appeared to have a bigger disparity in sex-ratio and, is a desperate attempt to restore balance to the
as Ebenstein has identified, this generally indicates Chinese population and economy in light of the
a preference for male children in China.73 This was implications above.79

71 Charlie Campbell, ‘China’s Aging Population is a Major Threat to its Future’ Time (7 Feb 2019) available at:
https://time.com/5523805/china-aging-population-working-age/ accessed 21 July 2020.
72 H Li, L Li, B Wu & Y Xiong, ‘The End of Cheap Chinese Labor’ (2012) 26(4) Journal of Economic Perspectives 57.
73 A Ebenstein, ‘The “Missing Girls” of China and the Unintended Consequences of the One Child Policy’ (2010) 45(1) J

Human Resources 87.

74 Y Chen et al, ‘Prenatal Sex Selection and Missing Girls in China: Evidence from the Diffusion of Diagnostic

Ultrasound’ (2013) 48(1) J Human Resources 36.

75 J Clarke, ‘The Chinese Population Policy: A Necessary Evil?’ (1987) 20 NYU J Int’l L & Pol 321, 350.

76 Mather (n6), 931.

77 Article 2, International Covenant on Civil and Political Rights 1966.

78 United Nations Human Rights Committee, General Comment No 36: Article 6: Right to Life (2019) [21].

79 T Hesketh, Y Wang & X Zhou, ‘The End of the One-Child Policy: Lasting Implications for China’ (2015) 314(24)

JAMA 2619, 2620.

12

having less interference in private activities, such as

Utilitarianism procreation. In this author’s opinion, the balance
would be best met by finding the least restrictive
The article appearing in the Harvard Law Review approach. 85 The least restrictive means test is a
suggested “the necessity for a utilitarian legal doctrine perhaps best illustrated by the ‘strict
justification” of regulationist proposals. 80 The scrutiny’ level of judicial review in the United
article claimed this to be necessary to ensure that a States, where a law restricting liberty must be
regulationist policy is not ‘imposing a moral narrowly tailored into the least restrictive iteration
standard’ and is actually enacted for the good of the possible to achieve a compelling governmental
people.81 In the context of a regulationist population objective.86 This begs the question, which is perhaps
control policy such as China’s, a utilitarian approach easily answered as ‘no’, as to whether the one-child
would permit such action only if the behaviour it policy was the least restrictive means of reducing
was regulating, i.e. “reproducing excessively”, population growth. Naturally, lesser restrictive
affects more than “the acting parties”. 82 The limit approaches exist in voluntarist approaches, which
to this approach is that it does not effectively coerce and change behavioural norms through
consider the morality of one’s actions. Of course, education, contraception, etc. This occurred in
excessive reproduction affects the wider world by Indonesia throughout the 1970/80s and worked
contributing to overpopulation. Yet, an approach as very well, having reduced the fertility rates of
oppressive as the one-child policy is surely one of women from 5.6 births per woman from 1967-70, to
the most immoral ways to achieve control over this. 2.8 from 1995-97.87
Utilitarianism is a primary form of consequentialist
ethics, based on the result and not intention of an Nevertheless, it is worth noting the socio-political
action - at its heart, it seeks to achieve the greatest differences between the West (or global north) and
happiness principle. 83 John Stuart Mill’s works China. The least restrictive means doctrine is
attempted to reconcile utilitarianism and morality, evidence of the libertarian tendencies of the
with considerations around the notion that morality Western world, evidenced by the fact that the best
was founded upon the consequence of happiness. He example of its utility is found within US Supreme
says that “actions are right in proportion as they Court jurisprudence. As previously mentioned,
tend to promote happiness, wrong as they tend to overpopulation is not occurring in developed
produce the reverse of happiness”.84 economies at the same rate, therefore, it is easy to
sit aside and cast aspersions on China and their
To perform a utilitarian justification of the Chinese dealing with the crisis. In this way, there is certainly
government policy, the consequences of the policy an existence of what Edward Said has famously
must be analysed under the greatest happiness termed ‘orientalism’, or a “Western style for
principle. The greatest happiness will be achieved in dominating, restructuring, and having authority
finding a balance between the benefits that flow over the Orient”, 88 in which a presumption of
from preventing overpopulation and the pleasure of

80 Unnamed Author (n4) 1885.

81 Ibid.
82 Ibid, 1886.

83 Bentham J, A Fragment on Government (London, 1776), Preface.

84 Mill J S, Utilitarianism (Longman, Green, Reader and Dyer, 1871) Part II.
85 There has been mention that Utilitarianism and the least restrictive alternative approach are compatible – C Lin,

‘Ethical exploration of the least restrictive alternative’ (2003) 54(6) Psychiatric Services 866.
86 Gooding v Wilson, 405 US 518 (1972).

87 Permana IB & Westoff C, The Two-Child Norm in Indonesia (Jakarta, Macro Int 1999) P1, available at:

https://dhsprogram.com/pubs/pdf/FA28/FA28.pdf accessed 11 Feb 2021.

88 Said E, Orientalism (Penguin 1977) 3.
 13

Western superiority is founded. 89 This can be alternatives are a much more sensible option to
observed in the west with the notion of ‘defeating control population. Of course, contraception access
communism’ and the general incorporation of will always remain an integral part of both
constitutional liberties, which is not the case within voluntarist and regulationist policies. However, an
China, whose culture is based generally upon important aim of voluntarist policies will also be to
authoritarianism, not liberty. Chinese legal culture create a desire to have fewer children, which lies
is centred on the ‘rule-of-men’, which is different to predominantly in generating contentment in having
the rule of law in that those in power derive their a smaller family.
power to govern “from their superior virtue”,90 and
not through the consent of the people. The Western Indonesia: a case of effective voluntarist policy
approach of politics, Ruskola notes, encompasses
democracy, the rule of law and liberty, and “has Indonesia is a great example of a voluntarist policy
ruinous analytic consequences for the study of which was successful by the metrics the state set
Chinese law”,91 via criticism of the incompatibility itself. Indonesia experienced extreme population
of the laws with Western values. Whilst this paper growth and high fertility rates before the 1970s,
ostensibly denunciates the Chinese policy, it must especially in Java and Bali.92 The Indonesian policy
be mentioned parenthetically that the reader should focused on family planning and contraception.
be aware of the many alternative interpretations of Many family planning clinics were opened in the
the Chinese government stance, which may early 1970s, and then women’s ‘Acceptor Clubs’
conclude that their one-child policy was the most sprouted up within the local communities, often
fitting approach available under the system of headed by a locally prominent woman. The acceptor
politics familiar to the Chinese people. clubs liaised between local women and the family
planning clinics “to ensure a steady supply of
Alternative solutions to population control contraceptives at the local level”. 93 Indonesia
recognised “the need for and desirability of family
From the discourse of this article, it can be observed planning to make the small and happy family the
that there are generally two approaches to norm”.94
population control, regulationist and voluntarist.
Regulationist policies (such as the one-child policy) The policy focussed on family planning, including
impose direct state interference and enforcement to visits to communities by mobile family planning
achieve the objective whereas voluntarist policies teams, accessible contraception and contraceptive
share the same objectives but are naturally met via information and integrating family planning
the voluntary will of the people after persuasion and activities with other health-related activities. 95 In
even gentle coercion. plain, the main aim of the Indonesian policy was to
introduce the norm of “a small, happy and
After reviewing the Chinese one-child policy, it is prosperous family”,96 in which Indonesia was very
clear that the consequences (both intended and successful, largely achieving a maximum of two
otherwise) were quite extreme and softer children families by the mid-1990s.97

89 Ibid, 42.
90 Ruskola T, Legal Orientalism (Harvard University Press 2013) 14.
91 Ibid.

92 Mather (n6), 934.

93 Hartmann B, Reproductive Rights and Wrongs: The Global Politics of Population Control (Haymarket Books 2016) 75.

94 H Suyono, ‘The strategies, experiences and future challenges of the information component in the Indonesian Family

Planning Programme’ (1988) 3(4) Asia Pacific Population Journal 33.

95 Ibid.

96 Ibid.

97 Permana & Westoff (n87).

14

conditions, such as India, incentives are generally

To contrast the effectivity of this with a morally permissible. She takes the view that
regulationist approach, such as the quota-enforced incentives should be seen as compensation for “lost
Indian mass sterilisations between 1975-77,98 it can work and other effects” due to the sterilisation or
be seen that the voluntarist strategy in Indonesia another practice, not a bribe to undergo the
was more effective in reducing the fertility rate. procedure.103 This viewpoint implies the existence
India’s fertility rate in 1970 stood at 5.72 compared of a social contract between the state and the
to Indonesia’s 5.6, 99 and by 1995, India’s had individual, suggesting that the actions of
dropped to 3.83 compared to Indonesia’s 2.8.100 Of incentivisation are moral and legitimate so long as
course, China’s regulationist policy was more it is viewed as ‘compensation’. Yet, on the other
effective than both India and Indonesia’s, reducing hand, Chacko argues that incentives for accepting
the rate from 5.725 in 1970 to 1.66 in 1995,101 but birth control measures “are a crude device for
this was achieved after an extended period of strict obtaining consent” which exploits “the acceptor’s
enforcement of a policy which arguably infringes impoverished condition”. 104 In simple terms, they
human rights. The effectiveness of Indonesia’s are more likely to appeal to and be taken up by
policy and the potential it has still shines through minorities and those in poverty. In developing
due to the results it has achieved using a purely countries, this could become an extremely
voluntarist approach. dangerous practice which, when mixed with birth
control, could indirectly lead to an unintended form
Incentives of ethnic cleansing. Therefore, cash incentives for
population control are certainly balancing on the
Desirable incentives are always an option if offered thin line between moral permissibility and
to those having fewer children and could still intolerability, and should be measured with caution
constitute a voluntarist, albeit more coercive should a state decide to attempt to adopt this
approach. Much like the Chinese system, these approach.
could include tax relief, pension benefits and other
stipends. The one thing that, in the view of this Another practical pitfall to an incentivised approach
author, should not be included however, is the is that by offering financial aid to people with fewer
offering of better opportunities to an only-child, children, a huge wealth imbalance will be generated
rather than children with siblings. China did this by between families with more children and more
granting extra school entrance exam marks etc. In expenses, yet no aid. This will result in many larger
this authors view, it is clearly neither ethical nor families becoming dependent on state welfare. This
morally acceptable to punish children who are would render the incentives useless, as larger
blameless for their parents’ actions. families will still be able to receive aid from the state
through welfare. Therefore, the optimum way to
India also provided cash incentives in return for increase contentment is to improve the quality of
sterilisation.102 Eisenhauer argues that in countries life for all, where people believe in the benefits of a
where population growth is pernicious to living smaller family.

98 Mather (n6), 932.

99 Permana & Westoff (n87) & ‘Total fertility rate in India, from 1880 to 2020’ Statista (2020) available at:
https://www.statista.com/statistics/1033844/fertility-rate-india-1880-2020/ accessed 11 Feb 2021.
100 Ibid.
101 ‘Fertility rate, total (births per woman) – China’ The World Bank, available at:

https://data.worldbank.org/indicator/SP.DYN.TFRT.IN?locations=CN accessed 11 Feb 2021.

102 Eisenhauer (n1), 34.

103 Ibid.

104 V I Chacko, ‘Some Considerations of Incentives and Disincentives in the Promotion of Family Planning: India’s

Experience’ (1975) 7 Columbia Human Rights Law Review 45, 48.

 15

society provides many influences to achieve this

Achieving a reduced desire to have a large which older policies such as China’s and India’s
family could not benefit from. Currently, the most effective
ways to facilitate this are arguably embodied under
This paper has identified that ‘generating the United Nation’s Sustainable Development
contentment’ in a smaller family should be a key Goals (SDGs). The 17 SDGs urge contracting
factor of any successful policy aimed at parties to adopt ways to end poverty and hunger,
counteracting overpopulation. This was central to ensure good health, well-being and education,
Indonesian policy in the promotion of a small, happy access to water, sanitation and gender equality. It
and prosperous family. also urges states to focus on clean energy, work
opportunities and economic growth, industry,
This could be achieved through a more intense focus innovation and infrastructure and sustainable
on community activities, which are much more cities.106 Taken together, these SDGs drive up the
accessible to smaller families and approaches, such standard of living in even the poorest areas in the
as a standardised portrayal of smaller families on world. This paper believes that the root causes of
the television and in the media. Furthermore, overpopulation lie within poverty,
through offering more accessible pre-elementary overconsumption, inequalities, economic factors
childcare, in which children can be entertained in and a lack of innovation, and this is why the SDGs
groups without needing multiple siblings. are a suitable response to the overpopulation crisis.
Poverty is linked to overpopulation in that 90% of
Beyond these points, Indonesia highlights the all population growth occurs in impoverished
importance of accessible family planning. Statistics countries.107 This is due to a general lack of access
cannot lie, and family planning was the cornerstone to education,108 and the general inclination to have
of the Indonesian policy, the heart from which all more children in the face of realistic uncertainty of
other measures flowed. Education is a very the child’s probability of survival, 109 and this
important counterpart of family planning, so it may reasoning is often employed within countries
be integrated into the next generations in experiencing overconsumption also. Furthermore,
developing countries where people are, as while often overlooked as a cause of overpopulation,
Eisenhauer right identifies, more “unwilling to gender inequality in countries where gender role
accept family planning services” due to “religious attitudes disqualify women from pursuing a career
and cultural barriers”.105 The need for education and and educational opportunities seem to lead to
family planning to challenge outdated customs will increased fertility rates.110
be developed in more depth below.
Achieving overall levels of increased contentment
The importance of the United Nations’ with fewer children also begins in a mother’s early
Sustainable Development Goals life. Dr Newman asserts that a mother who has a
child later in their life is much more likely to have
Increasing the standard of living for citizens is
crucial for generating contentment. Contemporary

105 Eisenhauer (n1), 5.

106 United Nations, ‘Sustainable Development Goals’ available at: https://www.un.org/sustainabledevelopment/sustainable-
development-goals/ accessed 1 Oct 2020.
107 Smith (n22).

108 S Sinding, ‘Population, poverty and economic development’ (2009) 364(1532) Philos Trans R Soc Lond B Biol Sci 3023.
109 Bill Gates, Remarks at US Global Leadership Coalition (2 Feb 2011) available at: http://www.usglc.org/wp-

content/uploads/2008/09/TRANSCRIPT-Bill-Gates-remarks.pdf accessed 12 Feb 2021.

110 N Golmakani et al, ‘Relationship between gender role attitude and fertility in women referring to health centres in

Mashhad in 2013’ (2015) 20(2) Iran Journal of Nursing and Midwifery Research 269.
16

just the one child.111 This could be capitalised upon

by a policy targeting population control, through Cultural perceptions and customs provide
honouring the SDGs (especially SDG 5, 8 and 9 substantial barriers to an effective population
regarding the creation of equal working control policy. As Eisenhauer stated, some cultures
opportunities for women) and adopting a policy may be “unwilling to accept family planning
which focuses on emphasising and boosting services”.117 Sub-Saharan Africa is a great example
opportunities for a woman’s career development of this, and may well “offer greater resistance to
from a young age. Allowing them to focus on this fertility decline than any other world region”. 118
until well into their 30s, at which point they may African religion views high fertility as a “divine
decide to have a child. reward” and “evidence of the right behaviour”, 119
whereas low fertility is often viewed as “evidence of
Social education and access to contraception sin and disapproval”. 120 This is clearly deeply
entrenched and will cause complications to family
It is well known that over 90% of population growth planning and population control. In response, this
occurs in developing countries, 112 whereas author believes that the most effective approach is
developed countries such as Japan and most of to target the younger generations with a widely
Western Europe have the “lowest birth rates in the propagated educational curriculum that gives focus
world”.113 This statistic indicates that the reality of to family planning, sex education, and the
overpopulation is not a scientific issue, but a social implications of overpopulation. Generational
one. Lower-income countries are less likely to have change is extremely effective, and hopefully
widely available access to contraception, and sex rigorous educational policies in areas which hold
education. Furthermore, these countries may also strong cultural barriers will influence a normative
be more likely to have barriers and stigma for shift in procreative behaviour.
contraceptive use and procedures such as
abortion. 114 Therefore, wider access to Conclusion
contraception and education, 115 and a focus on
removing the stigma for these practices in lower- Overpopulation is a colossal and contemporary
income countries, may produce an effective response problem which currently dictates that almost a
to overpopulation. This will also benefit families in quarter of humanity lives in hunger and poverty.
these countries in escaping poverty, by having Therefore, the need to control the population is
sound family planning to match their financial paramount; if no intervention is made, scientists
output. These solutions are in line with the UN’s believe that every ecosystem will be irreparably
Sustainable Development Goals, and will ensure damaged, creating an environment in which the
that the social issues behind overpopulation are human species cannot survive.
minimised.116

111 Dr Susan Newman, The Case for Only Child: Your Essential Guide (Health Comms Inc, 2011).
112 Smith (n22).
113 Mather (n6), 937.
114 M Makenzius et al, ‘Stigma related to contraceptive use and abortion in Kenya: scale development and validation’

(2019) 16 Reprod Health 136.

115 W J Ripple et al, ‘World Scientists’ Warning to Humanity: A Second Notice’ (2017) 67(12) Bioscience 1026.

116 United Nations, ‘World Population Prospects 2019’ New York (2019)

<https://population.un.org/wpp/Publications/Files/WPP2019_Highlights.pdf> accessed 29 July 2020.

117 Supra, n105.
118 J Caldwell & P Caldwell, ‘The Cultural Context of High Fertility in sub-Saharan Africa’ (1987) 13(3) Population and

Development Review 409.

119 Ibid, 415.

120 Ibid, 416.

 17

It is apparent that governments should realise some Membership of the Chinese Communist Youth
form of policy in order to combat overpopulation. League on the Problem of Controlling Population
However, regulationist policies tend to be extreme, Growth in Our Country’ (Sept 25, 1980)
such as China’s one-child policy. Policies such as
European Convention on Human Rights 1953
this give rise to numerous human rights and moral
infringements, as well as practical implications such Information Office of the State Council of the
as an ageing population, labour shortage and a People’s Republic of China, ‘Family Planning in
gender imbalance. In essence, regulationist policies China’ [1995] White Paper,
are not favourable under the lens of human rights, <https://www.fmprc.gov.cn/ce/celt/eng/zt/zfbps
international soft law and various philosophical /t125241.htm> accessed 7 July 2020
approaches such as utilitarianism and natural
Statute of the International Court of Justice 1945
rights. Focus should therefore be given to softer, United Nations, Convention on the Rights of the
more indirect voluntarist policies. Child 1989
Voluntarist policies should aim to strike a natural United Nations, Final Act of the International
balance by focusing not on punishment, but on Conference on Human Rights, Tehran (1968)
empowerment. Empowerment will follow the key
tenets of education, access to contraception and United Nations Human Rights Committee,
family planning; much like the successful policy that General Comment No 36: Article 6: Right to Life
(2019)
was employed in Indonesia in the 1970s and 80s.
Voluntarist approaches that focus on the United Nations, Human Rights Day Declaration
aforementioned tenets allow a more gentle and on Population (10 Dec 1966)
sustainable approach to population control in
regions with more nuanced problems, such as United Nations, International Covenant on Civil
poverty, inequality and cultural barriers. The and Political Rights 1966
human rights instruments from the UN also
suggest that policies to limit population should be United Nations International Covenant on
Economic, Social and Cultural Rights 1966
based on a voluntarist approach. Their Sustainable
Development Goals offer policies which focus on United Nations, Recommendations for the Further
reducing poverty, inequality and over-consumption, Implementation of the World Population Plan of
and which emphasise the need for innovation, work Action 1984,
opportunities and economic improvement. It has <https://www.un.org/en/development/desa/pop
been identified that these goals will encompass a ulation/migration/generalassembly/docs/globalco
general improvement to the standard of living, mpact/E_CONF.76_19_Recommendations.pdf>
accessed 20 July 2020
which should generate contentment and diminish
the desire for more children, encouraging the norm
of a small but happy family. Cases

Gooding v Wilson, 405 US 518 (1972)

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ch/2017/11/World%20Scientists%27%20Warnin iles/chinas_one_child_policy.pdf> accessed 20 July
g%20to%20Humanity%201992.pdf> accessed 4 2020 – has many different articles related to
July 2020 China’s one-child policy.

United Nations Population Fund, ‘Population and MK Whyte, W Feng & Y Cai, ‘Challenging myths
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2019’ New York (2019)
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ICCPR’
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4&src=IND> accessed 8 Feb 2021

US Congress House Hearing, 112 Congress,