Global Reflections on Children's Rights and the Law

30 Years After the Convention on the Rights of the Child

Ellen Marrus, Pamela Laufer-Ukeles, Ellen Marrus, Pamela Laufer-Ukeles

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000412598
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Thirty years after the adoption of the UN Convention of the Rights of the Child, this book provides diverse perspectives from countries and regions across the globe on its implementation, critique and potential for reform.

The book revolves around key issues including progress in implementing the CRC worldwide; how to include children in legal proceedings; how to uphold children's various civil rights; how to best assist children at risk; and discussions surrounding children's identity rights in a changing familial order. Discussion of the CRC is both compelling and polarizing and the book portrays the enthusiasm around these topics through contrasting and comparative opinions on a range of topics.

The work provides varying perspectives from many different countries and regions, offering a wealth of insight on topics that will be of significant interest to scholars and practitioners working in the areas of children's rights and justice.

Part I
Struggles, challenges, and successes in implementing and ratifying the CRC worldwide
A. Worldwide

1 How to ensure wider implementation of the CRC

Olga Khazova

Introduction: setting the scene

The UN Convention on the Rights of the Child (CRC), widely recognized as the most comprehensive, holistic, and inclusive international instrument on the protection of children’s rights, marked its 30th Anniversary in November 2019. Looking back 30 years and comparing where children’s rights and their protections were then and now, it is clear that the progress achieved, without exaggeration, is tremendous. The years during which the CRC has been implemented have brought significant improvements in the lives of millions of children. In particular, the CRC informed the perception of the child as an autonomous rights-holder and brought tremendous changes in understanding the part that children should play in society. For many, taking children’s rights seriously,¹ acknowledging that a child is not an object, not the property of the parents but an autonomous subject, required a serious change in mindset. Changes that were brought about by the CRC, with its focus on the best interests of the child, the child’s right to be heard, and the child’s evolving capacities, were revolutionary.

However, it is still a serious challenge for many, whether parents or governmental officials, to accept that a child is a rights-holder to the same extent as adults and that children have the right to express their opinion on all matters that concern them, irrespective of age. It remains a challenge to accept that children’s evolving capacities and immaturity should not be interpreted as an excuse for restricting children’s autonomy and self-expression.²

Thus, despite huge improvements in the lives of children throughout the world over the last 30 years, there is still a lot to be done. Indeed, countries differ in the level of promotion of children’s rights and the degree to which they have implemented the CRC; some are at the forefront and others lag behind. Indeed, there is no country in the world that could claim that it has fully implemented the CRC. There are considerable challenges to implementing children’s rights, and to a certain extent, these challenges concern all States parties to the CRC. Poverty and discrimination, criminalization, violence, and armed conflicts are some of the many problems that continue to hamper children’s full enjoyment of their rights. Regrettably, despite all the progress achieved, children are still too often left behind. Therefore, for all States parties, implementation of the CRC is a work in progress.

Moreover, “there are worrying signs that some of the gains that children achieved under the Convention are at risk of stagnation – and even reversal in a few cases,” as was rightly noted in one of the recent UNICEF publications.³ For example, vaccination of children, one of the greatest successes in public health that saved millions of children’s lives, has recently stalled. The results are devastating. What has occurred recently in the Pacific region, where many countries have been plagued by the measles epidemic,⁴ is a clear sign that additional efforts are required to overcome backsliding. Clearly, “it is time for a renewed commitment to the Convention and to the world’s children, particularly the most disadvantaged,” as UNICEF suggests.⁵

The States’ obligations under the CRC and the mandate of the CRC Committee

There is no precise, clear answer to the question of how to ensure a wider implementation of the CRC. It is a multi-faceted undertaking, consisting of different activities, actions, and strategies, that involves a variety of actors and close cooperation between them.

On a practical level, the most important article of the CRC on the issue of implementation is Article 4, which “pledges [S]tates to translate all the rights set out in the CRC into reality.”⁶ As explained in the Committee’s General Comment No. 5, ratification of the CRC means that a State “takes on obligations under international law to implement it.”⁷ Implementation, as the General Comment further explains, “is the process whereby State parties take action to ensure the realization of all rights in the Convention for all children in their jurisdiction.”⁸

The two main characteristics of the mandate of the CRC Committee (hereinafter, “Committee”) may be described as examining the progress made by States parties in realizing the obligations under the CRC and fostering its effective implementation.⁹ While carrying out its mandate, the Committee performs many different activities. Among the different ways in which the Committee can approach the States directly or indirectly on particular issues of concern, three main forms of activities can be identified.

First, one of the most important activities performed by the Committee is a reporting and examination process that monitors the States’ implementation of the provisions of the CRC and the progress that has been made. It is a long, “multi-layered and dynamic process,”¹⁰ that includes an examination of a State’s report, reports of UNICEF and other specialized UN agencies and bodies, and alternative and supplementary reports presented by NGOs and other competent bodies. The review of a national periodic report and other related documents and a dialogue with a State party are followed by the adoption of concluding observations that finalize the reporting process.¹¹ The second activity is the Committee’s work on developing general comments. The third major activity performed by the Committee is the consideration of individual communications under the framework of the Optional Protocol to the CRC on a communications procedure.¹²

Thus, as a result of each of these three main activities, the Committee produces three written documents: concluding observations, general comments, and views adopted as a result of a consideration of individual communications. What these documents have in common is they are seen as the Committee’s jurisprudence.¹³ Therefore, they should be considered as recommendations that States parties should follow.¹⁴

Concluding Observations

“Concluding Observations” is a document that is adopted as a result of a constructive dialog with a State party and where the Committee, while performing its monitoring function, directly addresses that State party on a range of issues related to children’s rights. To facilitate a more structured discussion with the States parties, the Committee’s Reporting Guidelines grouped the CRC articles in clusters, according to content and in a logical order.¹⁵ Based on concerns raised by States parties and NGOs, the Committee decided to indicate, as a separate issue, the main areas of concern with regard to a particular State party.¹⁶ This innovation aims to provide guidance to the States on how to approach the Committee’s recommendations and to make implementation easier. In this special paragraph titled “Main areas of concern and recommendations,” the Committee highlights the issues that it considers the most burning for that particular State and which urgent measures should be taken.

Thus, the first cluster of the concluding observations is “General Measures of Implementation (Articles 4, 42, and 44.6),” and it is present in all concluding observations.¹⁷ In this cluster, the Committee explains what is missing and gives certain recommendations that are necessary to ensure proper implementation of the CRC.

The Committee’s recommendations to the States parties regarding the general measures of implementation of the CRC can be summarized in four important points. First, it is important to have legislation upon which to base governmental decrees and other types of regulations that set up the legal framework for children rights necessary to ensure their adequate protection. While there has been an overall increase in legislation related to children’s rights, it remains limited or fragmented in many countries. If there is no national legal regulation that fully incorporates all the provisions of the CRC, it is usually very difficult, if not impossible, to contemplate implementation of children’s rights.¹⁸ As the Committee stresses, it is also important to introduce a children’s rights impact assessment procedure for all legislation adopted at the national level.¹⁹

Second, it is absolutely crucial to have policies, strategies, action plans, and to identify the bodies responsible for the implementation of the CRC. Experience demonstrates that the existence of effectively functioning interdepartmental and multidisciplinary bodies, which ensure cooperation of all the actors in the area of children’s rights, is a key to success.

Third, the CRC implementation measures should be supp...