International Human Rights Law (LG332) Topic 6: The Rights of the Child

Background  Law always seeks to protect those at risk in society.  Domestic legal systems have special provisions in relation to minors.  At an int’l level the development of children’s rights has been one of the great successes of the UN

Background  1924 Geneva Declaration on the Rights of the Child – League of Nations: Mankind owes to the child the best it has to give  1959 UN GA Declaration on the Rights of the Child  1979 International Year of the Child  1989 Convention on the Rights of the Child

Convention on the Rights of the Child  Almost universal ratification  Entered into force in record time  Based on recognition that childhood is entitled to special care and assistance and that every child should have the opportunity to grow up in a happy, loving, understanding family atmosphere in order to ensure the full and harmonious development of the child’s personality (Preamble)

Convention on the Rights of the Child  Draws on a number of earlier instruments, on children, and on social and humanitarian law.  In general, all persons under the age of 18 are entitled to the rights and protection of the Convention. (Art. 1)  The most comprehensive int’l HR document to date – CP, ESC Rights.

Definition  Article 1  For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Protection of Children from Harm  Many elements of Convention aim at protecting children, recognising their inherent vulnerability. Art. 2 protects against discrimination on the status of either the child or the parent / guardian

Other Provisions of CRC  Most of the Convention is underpinned by notion that the best interests of the child is the deciding factor in any decision affecting the child – Art. 3.  Art. 4 places responsibilities on States to protect rights of the child  The child is recognised as having ‘evolving capacities’ in exercising the rights in the Convention– Art. 5.

Other Provisions of CRC  Art. 6 provides that every child has the inherent right to life and that States should secure the survival and development of the child to the maximum extent possible.

Other Provisions of CRC  The right to an identity is protected – Arts. 7 & 8  The right to a family life is also dealt with in Arts. 9 & 10.  Arts. 11 – 17 deal with substantive rights of the child and respect for views of the child  Art. 18 deals with parental responsibilities  Art. 19 requires that children are protected from violence  Adoption is addressed in Arts 20 & 21.

Article 12  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Other Provisions of the CRC  Issues such as disability, refugees, care, social security are dealt with in Arts  The right of every child to a standard of living adequate for physical, mental, spiritual and social development (Art. 27) places responsibility on the parents/carers as well as the State.  Education is dealt with in Art. 28 & 29

Article 23  1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

Other Provisions of CRC  Art. 30 deals with minorities  Art. 31 deals with leisure, play and culture.  Art. 32 deals with child labour  Art. 33 asks States to use all possible means to protect children from the use of harmful drugs

Article 33  States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.

Other Provisions of CRC  Article 34 prohibits sexual exploitation of children.  Article 35 proscribes abduction, sale and trafficking.  Art. 36 deals with other forms of exploitation  Art. 37 deals with detention and punishment

Convention on the Rights of the Child - Implementation  Committee on the Rights of the Child was established to review State reports.  Committee also seeks to actively involve all relevant specialised agencies of the UN.  It also receives detailed NGO ‘alternative’ reports on States.

Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography  Adopted  Named practices are prohibited by Art. 1, criminalised in nat’l law in accordance with Art. 3 and subjected to various provisions on jurisdiction and extradition.  Art. 10 states that int’l co-operation should assist with the prevention, detection, investigation, prosecution and punishment of those responsible for prohibited acts.  Art. 8 provides that care should be taken to protect child victims.

Children and Armed Conflict  Art. 38 of CRC provides that ‘States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.’  States should not recruit younger people and when recruiting those between 15 and 18, should give priority to oldest.

Optional Protocol on the Involvement of Children in Armed Conflict  Adopted  Reinforces int’l standard and increases age limit.  In accordance with Protocol, members of armed forces under 18 must not take direct part in hostilities – Art. 1.  There should be no compulsory recruitment of those under 18 – Art. 2.

Optional Protocol on the Involvement of Children in Armed Conflict  More specific tests are laid down for ensuring that anyone volunteering under age of 18 is fully aware of consequences of such actions – Art. 3.

Children and Conflict – other sources  ICRC and ILO both condemn use of children in armed conflict.  Statute of ICC lists ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in the hostilities’ as a war crime (Art. 8(2)(e)(vii)).

Economic Exploitation of Children  Proscribed in instruments adopted by ILO, e.g. ILO Convention No. 138 (1973) on Minimum Age and Convention No. 182 (1999) on the Elimination of the Worst Forms of Child Labour.  In the past attempts were made to prohibit import of goods produced by child labour, e.g. Senator Harkin’s Bill  ILO has Programme to deal with child labourers – systemic problem

OAU Charter on the Rights and Welfare of the Child  Adopted in  Followed on from OAU Declaration on the Rights and Welfare of the African Child and the International Year of the Child in  Echoes many elements of UN instrument.  Children also have duties, e.g. respecting their parents, preserving African cultural values etc.

European Convention on the Exercise of Children’s Rights  Adopted in  Endorses UN Convention.  Encourages States to undertake appropriate legislative, administrative and other measures for implementation of rights recognised in UN Convention.

Americas  Instruments on Child Soldiers (OAS Doc.AG/RES.1709 (XXX-O/00) and Child Trafficking (OAS Doc.AG/RES.1948 (XXXIII-O/0s).  Santiago Summit 2003 adopted Resolution AG/RES.1951(XXXIII-O/03) on promotion and protection of human rights of children in the Americas.

Wording of proposed amendment  Article 42(A)  1. The State acknowledges and affirms the natural and imprescriptible rights of all children In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Wording of proposed amendment  2 Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child, and where the best interests of the child so require.  3. Provision may be made by law for the voluntary placement for adoption and the adoption of any child. 4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.

Wording of proposed amendment  5. 1 Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law. 2o No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age. 3o The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.