The claims to universal legitimacy of international human rights law have always been controversial, but this is particularly the case with respect to the UN convention on the Rights of the Child’ Explain and critically comment on the statement with particular reference to at least one Article of the convention.
According to UNICEF, the Convention on the Rights of the Child is the most successful and universally accepted human rights treaty so far created. It has been signed by every single member of the United Nations, a rare event in itself. But what’s more, it has been ratified by them also. There are currently only two signatories that have not ratified the Convention on the Rights of the Child. The Convention is regarded as the definitive instrument for setting the standards of protection, and defining the basic human rights of children. By limiting its area of application to children, and highlighting their particular needs, it has cut through the cold barriers and walls that frequently block other human rights conventions from receiving universal support. While all members of the human family are undeniably entitled to certain basic rights, there is something about children that makes even the most bloodthirsty tyrants willing to draw a line and make way for the causes of peace and justice. It is fair to say that the Convention on the Rights of the Child (CRC) is widely hailed as a success by both the UN, and the contracting states parties.
‘A century that began with children having virtually no rights is ending with children having the most powerful legal instrument that not only recognizes but protects their human rights.’
There are a number of aspects to the Convention that make it unique among human rights instruments. Its negotiation process was open and participatory and this led to various different legal systems influencing the process and the provisions of the final text. The text therefore lays down binding, universal standards and obligations that all children, everywhere must be guaranteed at all times. These rights are designed to protect the dignity and sound development of the child. It deals with such various topics as health care, access to education, legal protections and social services. The value of having international standards in these areas is enormous.
Another noted innovation in the Convention is that it was the first international instrument to take a more holistic approach to the problem it was addressed to solve. It covers not only strict international legal provisions but also civil liberties, political rights, economic provisions and is culturally and socially sensitive.
The United Nations Convention on the Rights of the Child was passed on the 12th of December 1989 by Generally Assembly resolution. This was the result of a series of resolutions by the General Assembly, the Commission on Human Rights and the Economic and Social Council who had all been occupied with the rights of children since the late 1970’s. A draft of the Convention was prepared by the Commission on Human Rights and this was handed to the General Assembly on 24 May 1989. It’s stated goal was to address the special needs that the protection of children required, particularly with reference to their peaceful and secure development and education. It recognised that there was an ‘critical’ need to protect children from such disturbances to their peaceful and secure development as poor social conditions, natural disasters and hunger, war and conflict, exploitation, illiteracy and other forms of disability and that these needs required international as well as national measures.
The Convention was adopted and opened for signature at the 61st plenary meeting of the General Assembly on 20 November 1989. The significance of the year 1989, as was pointed out by the General Assembly, being that it marked the thirtieth anniversary of the Declaration of the Rights of the Child and the tenth anniversary of the International Year of the Child.
This marked the culmination of a long and arduous struggle to have children’s rights protected by a dedicated international instrument. While children were previously protected by all universal human rights instruments the difficulties of getting these guaranteed by many states meant that children were being left unprotected. The standard of protection under general rights documents was also not always suitable for the needs of children. Also, as can be seen from the specific provisions of the Convention for the Rights of the Child, other instruments failed to highlight areas of specific and particular importance to children. The almost universal acceptance of the Convention fifteen years on shows the truth of these concerns. While concerns pertaining to war, terrorism and political conflict still hinder many universal rights intended for both children and adults, there has been almost exclusive acceptance of the Convention on the Rights of the Child. It should be noted however, that while the Convention marked the culmination of one process, it marked the beginning of another, perhaps even more important process of ensuring the rights enshrined in the Convention made a difference to children around the world.
If we take 1924 as the starting point of our journey, the path the conclusion of the Convention took sixty-five years. 1924 was the year the international community took its first steps in the protection of children when the league of Nations endorsed the First Declaration of the Rights of the Child. This declaration stated
‘Mankind owes to the child the best that it has to give…’
This was somewhat augmented in 1945 when the United Nations Charter stated the guiding principle of respect for human rights and fundamental freedoms ‘for all’. The Universal Declaration of Human Rights adopted by the General Assembly in 1948 states that
‘All human beings are born free and equal in dignity and rights [and that] motherhood and childhood are entitled to special care and protection [and that the family is] the natural and fundamental group unit of society.’
In the same year, the General Assembly adopted the second Declaration on the Rights of the Child which expanded on the 1924 declaration and recognised humanity’s duty to meet its obligation to children in all respects. This led to a commitment to a further declaration and in 1959, over a decade later, the General Assembly adopted the third Declaration on the Rights of the Child.
These declarations, while important statements of intention had no legally binding weight, and this remained the case until 1976 when the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights came into force.
These rights were finally augmented by the Convention on the Rights of the Child in 1989, which by the target date at the end of 1995 had 185 ratifications, making it the widest and fastest ratification process ever for a human rights convention.
The above process is presented by the UN as a steady process of uninterrupted progress in the path of child rights protection. It does not take much research however to realise that it took 65 years simply to get to the point of having a convention. And the process was not as straightforward as it might at first appear. There were long delays, of over a decade or more, in the negotiations and drafting of the declarations mentioned above. Then it should not be overlooked that these declarations had no legally binding effect. The two international conventions that are referred to above were a significant advance in the process of global human rights protection but these were plagued by the problems that typically affect such instruments. Ratifications were often delayed for extended periods and the issues covered were not specifically tailored to the needs of children. Even now with the coming into force of the Convention on the Rights of the Child, there are still significant concerns regarding enforcement and ensuring a genuine protection of the rights laid down therein.
The case for a specific instrument for children
While it may seem obvious today, it was not initially clear to all parties that a separate convention with the purpose of protecting children was necessary. Many thought that such rights were adequately protected under general human rights law. It was however possible to make a special case for children, and have a specific legal instrument dealing solely with their protection approved by the General Assembly.
‘To look into some aspects of the future, we do not need projections by supercomputers. Much of the next millennium can be seen in how we care for our children today. Tomorrow’s world may be influenced by science and technology, but more than anything, it is already raking shape in the bodies and minds of our children.’
UNICEF has recently articulated the most important elements of the argument for affording children special protection. These place emphasis on the individuality of children and their equal status as citizens. Children are too often regarded as secondary, or ancillary to their parents and by the Convention’s definition, which classes all people below the age of 18 as children, literally billions of otherwise ignored people are directly addressed. Protecting this portion of society is a major investment in the future well being of the earth. Children are also one of the most vulnerable groups of society. They begin life completely dependent on others of their survival and only through proper care and nurturing do they become self sufficient. Such care is naturally provided by parents in the family but where this is not occurring, there is a positive duty on society not just to refrain from harming such children, but to step in and provide the care and guidance they need. Also, due to the fact that children are still developing mentally and physically, shortcomings in society such as poverty, poor health care, huger and malnutrition, polluted water and an unclean environment all disproportionately harm children.
Governments are also seen as having a greater duty to children than to other groups of citizens. This again stems from children’s greater vulnerability and reliance on government. The policies of governments have a disproportionate effect on the wellbeing of children, especially if they fall short of acceptable standards. However, in many parts of the globe, not only is this extra duty not taken seriously, but children are not taken into account at all in designing policies. This is party due to the lack of a direct voice for children in politics. Traditional political thinking gives political rights to people generally by vote, and this is universally reserved for those above the age of majority, usually 18. If policies are to become more child friendly than a serious attempt must be made to listen to children’s views in the areas that effect them most. While the idea is extremely basic, it is still not taken completely seriously by governments and as a method of social change is still in its infancy.
It has also been recognised that the massive societal changes that are occurring globally are having the harshest effects on children. Issues such as the break down of the traditional family structure, globalisation, a lack of employment and economic stability and the shrinking of welfare programs are leaving children without the security that previous generations could take for granted. While children are extremely adaptable, efforts should be made to minimise the difficulties they will face from social upheaval.
Article 12 and the right to participation
It is therefore with these arguments in mind that I will examine the contents of the Convention. There are a number of themes, some similar others different to the other conventions on human rights. The document is infused with the basic principle of human dignity. It is shocking to acknowledge the degree to which the dignity of children is set aside or compromised in many situations.
The role of the family is placed at the centre of the child’s wellbeing. The family is recognised as the natural provider and safe-guarder of children’s wellbeing and States must protect the child’s right not to be separated from its family unless it is judged in the child’s best interests.
‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.’
Article 5 ensures respect for parents or other family or legal guardians of the child and they role they play in guiding children. The child’s identity and family name are protected in Article 8. Immigration and Nationality rules have to pay respect to a child’s need to have contact with both parents if they live or are in another country.
Under Article 12, children are also granted a new voice in decision making that effects them.
“The most powerful change wrought by the Convention is the way in which children have become visible. Politicians, media, NGOs and broader civil society feel a clear obligation to include children in their respective public domains, interventions, dialogues, debates, mandates. You can’t ignore children any longer and get away with it. The Convention has raised consciousness in dramatic fashion.”
The views of children who have the capacity to form an opinion and make it known must be listened to and given a weight appropriate to the age and maturity of the child. In judicial hearings and other legal proceedings that directly effect a child, the child must be given an opportunity to have its voice heard and its views taken into consideration. The effects of Article 12 will mean different things depending on the exact circumstances of the case. What it requires is that children are involved in processes that will affect them. This is perhaps the provision of the Convention with the greatest capacity to affect genuine changes in all societies, both developed and undeveloped. To make it a reality, all aspects of decision making and policy formulation that effect children, from education, to health care, to housing rights, will have to be radically overhauled if this provision is given its full meaning under the Convention.
Article 12 has been declared by the Committee on the Rights of the Child to be one of the guiding principles of the Convention. All acts to give effect to or implement the Convention should try to incorporate this principle of participation.
The Convention at all times remains true to the idea that children’s capacities grow and evolve but are not yet fully developed. While children have a right under the Convention to have their views taken into account, it does not mean that the child will be able to make important decisions that will have a great effect on his or her life. While the child’s opinion can influence decisions, the decisions will still be made by the adult party authorised to do so.
As well as having the right to express an opinion, the child must also be free to do so without the fear of pressure or manipulation. The child cannot be forced to give an opinion if they do not want to, or if doing so will not be in their best interests. Also, the process must be carried out in good faith, with a genuine view being listened to, and not as a publicity act or other form of manipulation that the child has little or no chance of influencing.
Children should also be given the legal right to bring civil actions and other legal proceedings in their own name, a right that is often reserved to their guardians or parents.
The rights granted to children under Article 12 are seen as necessary for a proper enjoyment of the wider right to freedom of expression provided by other rights instruments. The right to free expression is seen as the basis of all democracy and fair government and without it, there is no civil or political justice possible. This is why Article 12 is seen as so vital. It is the right needed by children in order to benefit from and use their right to free expression. It means that children are given the information necessary to form a proper opinion and then being given the opportunity to express this view in a manner that is fair and just to them.
Article 15 of the Convention grants children the right to assemble and protest peaceably. This is clearly a political right that is being granted and in conjunction with Article 12, a concerted effort to safeguard the participation of children not only in matters that effect them individually, but also at a wider political level. Democratic societies are always enhanced when the rights of the democracy are extended to cover a greater proportion of the people living in the society. From the extension of rights to ever more classes, to the lowest socio-economic groups, to former slaves, to women, all have resulted in greater freedom and justice for all. A genuine attempt to extend as much as is possible to children will have a similar effect. If the States Partys really do go beyond lip service, and genuinely promote the Article 12 right of children to participate in all decision making processes that have a significant impact on them, the democracy and justice of our societies will be greatly enhanced.
This is not the situation at the moment. While many countries have increased the rights of participation of children, many more have not. Even in the most developed and open societies, the view that children have political rights and interests, and are capable of forming and expressing opinions on them, is not widespread. It actually will sound funny to many prominent and reasonable people.
The conclusion of this essay, is that the full meaning of Article 12 requires a real political voicec to be given to children and to be presented to them in a manner they can utilise. It does not say that children have the maturity to make such important decisions, but their views should genuinely be taken into account when making decisions that effect them. Only in this way can our societies extent to children the democratic rights taken for granted by the rest of us and all governments, even the most open and advanced, have a long way to go in providing this right.
- Bainham, A. Children, the Modern Law
- General Assembly Resolution A/RES/44/25
- General Assembly Resolution A/RES/33/168
- General Assembly Resolution A/RES/43/122
- Commission on Human Rights Resolution 1989/57
- League of Nations Declaration of the Rights of the Child 1924
- Universal Declaration of Human Rights
- Convention on the Rights of the Child
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