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A Brief Introduction To The History and Principles of the UN Convention on the Rights of the Child
Although the human rights of children were recognised within the international community more than 50 years ago, by way of the Declaration of the Rights of the Child (1959), this was not binding as an international agreement or treaty. However, in 1978 Poland proposed that a new convention should be adopted in the following year, 1979, which was designated as the International Year of the Child. The proposed convention – later to be named the Convention on the Rights of the Child – was initially proposed to follow the principles stated in the 1959 Declaration, addressing economic, social and cultural rights, but many states favoured a wider scope to incorporate issues of justice, ethnicity and children’s involvement in armed conflicts. These additional aspects of children’s rights reflected the provisions of other conventions that had come into force in the intervening period, such as the International Covenant on Civil and Political Rights (1966). Another criticism of the proposed convention was that it lacked detail, and was not drafted in enforceable terms.
The United Nations General Assembly was supportive of the Convention being settled during the International Year of the Child, but the Commission on Human Rights resisted undue haste and established a working group comprised of representatives of member states to review the initial proposal. Poland then produced a revised proposal that was accepted as an improved basis for negotiations to reach agreement about the Convention. All of the working group’s decisions were by consensus, which meant that some key issues were not included – e.g., child marriage – because consensus could not be reached on those issues. Nonetheless, this process eventually produced an agreed text that could be submitted to the General Assembly without controversy.
Despite the early hopes for a convention that could be adopted by member states in 1979, it took a decade and successive drafts before the Convention was finalised. In the meantime, more countries from Africa and Asia came on board, as well as some Islamic countries, so the Convention became more representative of worldwide concerns. The drafting process was also assisted by progress in the adoption of other international agreements, including instruments relating to juvenile justice, foster care, and adoption. The terms of these agreements informed many principles stated in the Convention.
Besides the United Nations, UN member states, and inter-governmental organisations – e.g., World Health Organisation, the International Labor Organisation, and (belatedly) UNICEF – some non-governmental organisations (NGOs) became involved in the drafting. The NGOs were not there as of right, but could be invited to make suggestions and give feedback on drafts. As some of the NGOs had been involved in drafting other international agreements around that time, their input into the Convention was invaluable. In about 1983, human rights NGOs and children’s NGOs joined forces, creating an NGO Ad Hoc Group that put forward more consistent proposals to the working party established by the Commission on Human Rights. This led to the NGOs having greater influence in the drafting process.
Several controversial issues addressed during the drafting process included the definition of a child, the determination of fundamental freedoms, protecting the best interests of children who are being adopted, and the minimum age that children can be participants in armed conflict.
The definition of a child is open as to when childhood starts, but the preamble of the Convention refers to children before and after birth. The upper age – when childhood ends – was set at 18 because that was the age of adulthood in most countries. The fundamental freedoms include freedom of association, religion, and communication. Adoption was a big issue because certain countries had previously allowed poorly regulated inter-country adoption of their children.
Many states wanted the minimum age that children can be participants in armed conflict to be set at 18, the age when children cease to be covered by the Convention, so that children would effectively be excluded from participation in armed conflict. However consensus was not able to be achieved on that age. In the end, the age was set at 15. In ratifying the Convention since it was adopted, some states have declined to accept the notion of children being engaged in armed conflict and have reserved their position on this provision of the Convention.
It was not until 1989, a full 10 years after the International Year of the Child, that the Convention was adopted by the United Nations General Assembly. As most countries and states in the world have now ratified the Convention, it has truly become “the international legal framework” for protecting and promoting children’s rights (Arbour). Under article 4 of the Convention, states who are parties are required to “undertake all appropriate legislative, administrative and other measures” necessary to give effect to the rights and principles stated in the Convention. This obligation is not discretionary. This means that subject to the resources they have available, all state parties must allocate public funds to ensure that laws, policies and programs within the state are consistent with the rights recognised in the Convention. Australia and New Zealand ratified the Convention in 1990 and 1993 respectively. Although the United States has signed the Convention, it has not ratified it, which means that the United States is not a party state and is not obligated to implement the principles of the Convention.
The general principles of the Convention, as they are now recognised, are the right to non-discrimination (article 2), the primacy of the best interests of the child (article 3), the right to life, survival and development (article 6), and the right to be heard (article 12). These general principles are often used as a guide to the interpretation of other principles, which fall into two categories: negative rights (where the state should not interfere with the exercise of the right) and positive rights (where the state must facilitate the exercise of the right). Another way of categorising rights is to consider their adoption historically, so that civil and political rights may be regarded as ‘first generation rights’, economic, social and cultural rights may be regarded as ‘second generation rights’, and ‘solidarity rights’ such as the right to peace and the right to a clean environment may be regarded as ‘third generation rights’.
In assessing the ‘best interests of the child’, which is not defined in the Convention itself, reference can now be made to the UNHCR Guidelines on Determining the Best Interests of the Child (May 2008). This is an important document that complements the Convention and assists child protection practitioners to identify what is in the best interests of a specific child or group of children in their unique circumstances.
The Convention is also an example of the specialisation of rights. Although the right to not be discriminated against is applicable to both adults and children, the best interests principle and the right to life, survival and development are examples of rights that more specifically apply to children under international law. These specialised rights include the right of children to live with their parents, subject to child protection concerns that might prevent this, and the right to play. In this way, the Convention may be regarded as both a statement regarding the needs of children, and a ‘code of conduct’ that tells parents and other adults how they should behave towards children in their care and in their community. Internationally, the Convention stands as a guide to the minimum level of rights that should apply to children everywhere. Where a state has ratified the Convention, it gains the force of law. In this context, an important optional protocol, adopted in 2011, is the ‘communication protocol’ which allows children (or groups of children) directly or through their representatives to address the United Nations Committee on the Rights of the Child regarding allegations that rights under the Convention have been violated. However, any review rights arising in the home state of the child or children must be exhausted first unless an emergency situation is recognised by the Committee. In some cases the home state may be asked by the committee to take steps to protect a child who comes to the committee’s attention.
An important ongoing feature of the Convention is implemented pursuant to the ‘third optional protocol of the convention’ (the OPIC) which establishes a committee to monitor states’ compliance with the Convention. The committee comprises 18 independent experts who are appointed for terms of 4 years, and who serve personally not on behalf of their home states. States who are parties to the Convention file reports on their compliance. The committee also receives ‘shadow reports’ from NGOs operating in each state. This aspect of the Convention is unique, as no other international treaty expressly reserves a role for specialist agencies in monitoring compliance. Following consideration of the state and NGO reports, the committee will send a list of issues or concerns to the state party. This may lead to dialogue between representatives of the state and the committee, and formal recommendations being issued by the committee. In appropriate circumstances, the committee can offer technical and financial assistance to a state to help it in meeting its obligations under the Convention. The committee also issues formal comments on aspects of the Convention, as a guide to interpretation and implementation.
The issue of children’s rights is closely bound up with children’s well-being and happiness. While obtaining reliable data about well-being and happiness is difficult, particularly in relation to young children, a lot of work has been done in the past couple of decades to measure factors such as children’s physical health, mental health, self-esteem and lifestyle. This kind of well-being data is valuable as a guide to how children are developing towards adulthood, and can help us identify specific issues affecting individual children or groups of children. In 2007, UNICEF published international data in its Report Card Number 7 which included indicators of children’s well-being for the first time (UNICEF, 2007). Although this continuing work is at an early stage, it has the potential to inform further development of the Convention, recognising that children’s happiness is a product of many factors that can have serious lifelong implications for individuals in terms of how they relate to others in society, the contributions they make within society, and the overall quality of life they enjoy.
This evolving view of children’s rights represents a maturation of our awareness of children’s needs and how meeting those needs promotes a better future for us all. It has been suggested that the Convention’s “major accomplishment” is increasing the visibility of children in society, so that children’s rights are not easily ignored (Lee). The Convention stands out amongst all international treaties as the one ratified by the most states, which is an almost universal acknowledgment of the importance of our children to our planet’s future and recognition that the protection of children’s rights must have primacy regardless of other demands on our resources. Moreover, ratification of the Convention by a state has often been closely followed by the establishment of an independent public institution focused on the rights of children. In New Zealand that independent institution is the Children’s Commissioner, while in Australia it is the National Children’s Commissioner. As at 2012, there were more than 200 such institutions throughout the world – under a range of names including ‘ombudsman’, child advocate, and ‘child rights commission’ – engaged to “monitor the actions of governments and other entities, advance the realization of children’s rights, receive complaints, provide remedies for violations, and offer a space for dialogue about children in society and between children and the state” (UNICEF, 2012). In Australia, the Australian Human Rights Commission has described the Convention as “underpin[ning] the work of the National Children’s Commissioner” (AHRC).
Despite the extraordinary efforts of the United Nations Committee on the Rights of the Child, the UN member states that have ratified the Convention, NGOs that report to the committee, and independent public institutions in member states, there is considerable work still to be done to overcome breaches of the Convention, and to address remaining areas of contention such as child marriage and juvenile justice. The criminal law is sometimes criticised for treating children like small adults (Edwards). Even Australia and New Zealand struggle with the divide between care and protection issues and criminality. New Zealand’s Children’s Commissioner has identified the need to “avoid an unhelpful, rigorous split between the youth justice and care and protection provisions [of legislation] by allowing a cross-over between the two parts” echoing a similar warning by the former President of the Children’s Court of New South Wales in Australia. The New Zealand Commissioner describes the “trenchant criticism” by the UN Committee on the Rights of the Child when New Zealand extended the jurisdiction of its Youth Court in October 2010 to include indictable offending by 12 and 13 year olds. Part of the answer here is improved understanding of the neuropsychological factors present in youth offending, and how culpability should be attributed in light of those factors. In a relatively recent decision, Graham v Florida 130 S. Ct. 2011, the Supreme Court of the United States – noting that in the US at that time there were 123 juvenile non-homicide offenders serving sentences of life imprisonment without parole, and that in Florida “a 5-year-old, theoretically, could receive [life without parole] under the letter of the law” – recognised that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds” that must be taken into account when sentencing juvenile offenders.
In relation to child marriage, it is notable that as at 2012 about one-third of girls in developing countries (other than China) were expected to be married before turning 18. Despite a majority of states having ratified the Convention, the same UNFPA report suggests that in the decade from 2010 to 2020 there are likely to be around 142 million child marriages worldwide. Although there are many reasons for the persistence of child marriage, the effects can be devastating. A significant feature of child marriage in some countries is the practice of paying off debts and resolving disputes by giving away a young girl child – a practice sometimes known as ‘swara’ – where the child becomes effectively enslaved to her husband, and is often punished for the alleged wrongdoing of her family.
The widespread ratification of the United Nations Convention on the Rights of the Child stands as a testament to the values expressed within it – values that have been carefully considered and that bring “the weight of the law to the recognition of morally based individual rights for children” (Da Silva et al.) – and the work of innumerable contributors from around the globe. While the Convention is neither complete nor wholly effective, it is nonetheless a major influence on the well-being of children in most developed countries. Even in developing countries, the Convention and its monitoring processes are slowly encouraging positive change. For example, between 2000 and 2014 the number of children engaged in child labour declined by about one-third (UNICEF, 2014). While this might be expressed as still two-thirds too many, for those children who can now attend school instead of work, this change is dramatic and life-changing. Similar patterns can be seen in many other areas of children’s rights. Perhaps most remarkable is that all this has happened in less than 30 years. By any measure that is a laudable achievement.
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