Human Rights Monitoring and Implementation

How To Make Rights ‘Real’ in Children’s Lives

Andressa Gadda, Juliet Harris, E. Kay M. Tisdall, Elizabeth Millership, Ursula Kilkelly

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367520700
• eBook ISBN:
  9781000164558
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The collection aims to inspire readers with new approaches to implementing and monitoring the United Nations Convention on the Rights of the Child, to make rights 'real' in children's lives.

Children's human rights are internationally recognised in the legally binding international treaty—the UN Convention on the Rights of the Child, the most ratified of all human rights treaties. Although measures are increasingly being taken to implement the Convention at a national level, more needs to be done to ensure that children's rights are recognised and supported in their daily lives. This collection brings together the latest research on new approaches to embedding children's rights into national law and policies, with contributions from academics, practitioners and importantly young activists, from the UK and beyond. This book will be of interest to all human rights advocates, particularly policy makers and practitioners looking for new ways in which to make children's rights real.

The chapters in this book were originally published as a special issue of The International Journal of Human Rights.

The UN Convention on the Rights of the Child: incremental and transformative approaches to legal implementation

Ursula Kilkelly iD

ABSTRACT

The United Nations Convention on the Rights of the Child is a binding treaty of international law and, under Article 4, States Parties are required to take legal, administrative and other measures to implement its provisions. States Parties have interpreted this obligation in different ways, including the adoption of both legal and non-legal measures designed to embed the Convention in the national legal system. Direct incorporation of the Convention has been getting increasing attention with jurisdictions choosing to give it the effect of national law, while others have adopted creative approaches that give further effect to the Convention via indirect incorporation. Research has begun to document these varying approaches and to examine their impact and this paper sets out the lessons to be learned from this accumulation of international experience. Building on the themes of this special issue, the paper seeks to establish a knowledge base on Convention implementation to inform national level decision-makers and advocates as to how to give greater effect to the Convention at a national level. In this regard, it includes a discussion of the merits of the different approaches to implementation of the Convention and identifies the elements necessary to leverage change in the protection of children's rights at the national level.

Introduction

The United Nations Convention on the Rights of the Child (CRC) is a binding treaty of international law.¹ Ratified by almost all members of the United Nations, it has become an important benchmark against which to measure national law and policy.² Article 4 of the CRC expressly requires States Parties to undertake 'all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention'. Accordingly, there is no single way to implement the Convention and States Parties have taken a variety of approaches - including legal and non-legal measures - to the realisation of its provisions. Legal measures include direct incorporation - where the Convention is given the effect of national law - as well as indirect incorporation where States Parties have taken creative approaches designed to give the Convention further effect at national level. Non legal measures, including the adoption of national policy, the introduction of national children's rights mechanisms, the establishment of co-ordinating and advocacy sendees and the provision of systematic children's rights training for those who work with and for children, have also been the subject of national attention.

The Convention is beginning to have effect in national legal systems through the adoption of these and other measures of implementation. The variety of social, economic and political factors involved mean that it is not possible to establish the cause and effect of any particular measure with reliability or certainty, although there is some consideration being given to the barriers to effective implementation.³ Nonetheless, there is some evidence that States Parties that have adopted some or all of these measures of implementation, as highlighted by the Committee on the Rights of the Child,⁴ are likely to be those in which conditions consistent with respect for children's rights exist.⁵

The aim of this article is to examine the approaches of States Parties towards the implementation of the CRC, in order to consider the lessons to be learned from this accumulation of international experience. The article begins with an introduction to the legal status of the CRC and the implementation obligations drawn from its provisions and the General Comments of the Committee on the Rights of the Child, the treaty body that monitors implementation. Next, it examines the legal measures of implementation, including direct and indirect incorporation, before considering non-legal measures especially important to effective implementation, such as the provision of children's rights training and the establishment of national children's rights institutions. The article then presents some of the key messages from the research about the measures that are most likely to bring about effective implementation of the Convention, drawing on those approaches that are most likely to have accumulative as well as transformative effects.

The CRC implementation duty

The CRC is the leading international treaty on the rights of the child evident from its strong international standing.⁶ Its provisions are detailed and comprehensive and cover all aspects of children's lives from play and education to family and health care, with provision for especially vulnerable children, like those without parental care, refugee children and children in conflict with the law.⁷ According to the Committee on the Rights of the Child, the CRC has four general principles, which guide implementation of the CRC in all areas.⁸ These are: freedom from discrimination (art 2); the best interests principle (art 3); the right to life, survival and development (art 6) and the right of the child to be heard in decision-making (art 12). The Committee's approach reinforces as fundamental to the Convention's implementation that children must live, survive and develop to be able to enjoy their rights, that they are entitled to enjoy those rights without discrimination and that all matters and decisions must be governed by their best interests and informed by their views. It is apparent from the Committee's monitoring activity that it considers these provisions to occupy an important status, as a lens through which the Convention's ordinary provisions should be viewed. Although the legitimacy of this approach is contested,⁹ it is not in dispute that States Parties are required to implement the CRC as a whole, in recognition of the status of children as rights holders¹⁰ and in light of the indivisible and inter-dependent nature of CRC provisions.¹¹ The choice of measures is left to States Parties,¹² however, although the Committee on the Rights of the Child has made it clear that it must include both legal and non-legal measures of implementation.¹³ According to the Committee, it is fundamental that national legislation is compatible with the principles and provisions of the CRC, and that they have direct effect leading to their enforcement.¹⁴ Compatibility between national legislation and the Convention requires a comprehensive, continuous and rigorous process of review,¹⁵ and States Parties must also ensure, by appropriate means, that CRC provisions are given legal effect within their domestic legal systems.¹⁶ As to how this should be done, the Committee strongly encourages incorporation of the CRC into national law, welcomes the development of consolidated children's statutes to emphasise the Convention's principles and considers that the mainstreaming of CRC provisions throughout all sectoral laws (on education, health and justice for example) is important to ensure that all national laws affecting children reflect the CRC's principles and standards.¹⁷ The Committee has recommended the inclusion of sections on the rights of the child in national constitutions,¹⁸ and regards the justiciability of children's rights, including where children themselves can claim their rights through effective remedies, as important to Convention implementation.¹⁹ The key priority for States Parties, the Committee says, must be to ensure compatibility between the CRC and domestic legislation, while giving the CRC visibility in the national legal system.²⁰ Hanson and Lundy also remind us about the value of Article 41, which provides that nothing in the CRC shall affect any provisions in national or international law that are more conducive to the realisation of the rights of the child, in this context.²¹

As Article 4 suggests, effective implementation of the CRC also requires non-legal measures and according to the Committee, these should include the adoption of a national implementation plan, the creation of effective monitoring structures such as national human rights institutions for children,²² comprehensive data collection systems and both training for those who work with and for children, as well as general awareness-raising activity.²³ Creating an infrastructure to support full implementation of the CRC requires a national, whole-government approach, with the participation of civil society, professional bodies and of course children themselves. Introducing systems of child impact assessment (to predict the impact of any proposed law, policy or budget on children and their rights)²⁴ and child impact evaluation (examining the actual impact of implementation) are both highlighted as priorities by the Committee in order to ensure that all actions concerning children are focused on their best interests.²⁵ Training and capacity building have been identified by the Committee as important non-legal measures of implementation, with widespread and continuous training highlighted as an important practical way to improve the understanding of those who work with and for children about the importance of a rights-based approach.²⁶

There is now a body of guidance available from the Committee on the Rights of the Child²⁷ to be supplemented by the emerging juris...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• Introduction: Human rights' monitoring and implementation: how to make rights 'real' in children's lives
• 1 The UN Convention on the Rights of the Child: incremental and transformative approaches to legal implementation
• 2 The general measures of implementation: opportunities for progress with children's rights
• 3 Children's rights-based childhood policy: a six-P framework
• 4 The UN Convention on the Rights of the Child, decentralisation and legislative integration: a case study from Wales
• 5 'Making children's rights real': lessons from policy networks and Contribution Analysis
• 6 Child Rights Impact Assessment as a policy improvement tool
• 7 To incorporate the CRC or not - is this really the question?
• 8 A young person's guide to defending human rights
• Index