Children's rights - [2001] HRLRes 10

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This document is part of the Human Rights Defender Manual, Diplomacy Training Program (February 2001).

CHILDREN’S RIGHTS

By Radhika Withana-Arachchi, Program Director, Diplomacy Training Program, Faculty of Law, UNSW

Introduction
Convention on the rights of the child
Sexual and economic exploitation of children
Other forms of exploitation
Obstacles to the fulfilment of children’s rights

Acronyms

1. Introduction

The rights of children have been covered in other international human rights instruments such the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite this, the Convention on the Rights of the Child (CROC) represents an important development in international human rights law by defining rights that have previously been found in numerous other international instruments into one international document that elaborates and develops those rights with specific reference to the needs and interests of children.

The CROC represents one of the great achievements of the efforts of Non-Government Organizations (NGOs) involved in human rights diplomacy. They had an instrumental impact on the Convention as well as on its conceptual framework. It is an example of what can be achieved in human rights by NGOs with sophisticated diplomacy.

2. Convention on the rights of the child

The text of the CROC was concluded in 1989 and has since become the most widely signed international human rights instrument. By 1996 it had 187 ratifications. To date the United States of America (and Somalia) have yet to sign the treaty.

2.1 General principles

There are four general principles enshrined in the CROC-

Best interests of the child

Article 3 enshrines that when a state makes decisions with regard to children the ‘best interests of the child’ must be the primary consideration. The principal relates to decisions by courts of law, administrative authorities, legislative bodies and public and private social welfare organizations. This principle is present implicitly in all the rights and is given explicit expression in: Article 9 (on the separation of the child from its family), Article 18 (on the child’s upbringing and development), Articles 20 and 21 (concerning the child’s separation from its family through various procedures and adoption, and Article 37 and 40 (on a child’s involvement with police and the judicial system.)

The inclusion of the best interests principle was an acknowledgement of the fact that there would be times when certain rights of the child would come into conflict with the rights and responsibilities of parents/guardians and the State. The language of Article 3 stipulates that the bests interests of the child are primary but not paramount: thus it does not privilege one set of rights against another (child versus parent/guardian/State) but allows for both to co-exist.

Non-Discrimination

Article 2 provides that no child should suffer discrimination due to the child’s or his or her parents or legal guardians race, colour, sex, language, religion political and other opinion or any other status. The principle of non-discrimination does not require that all children receive identical treatment in all cases but that children (as with adults) should enjoy equality of opportunity.

The right to life, survival and development

Article 6 contains the right to life and in addition places parties under an obligation to “ensure to the maximum extent possible the survival and development of the child.” The right to survival and development encompasses a number of issues: the right to health (Article 24) and physical development (Articles 26 and 27(3)), mental development (Articles 23, 27(1), 28 and 29), spiritual and moral development (Articles 14, 27(1) and 30) and social development (Articles 12, 13, 15, 17, 72(1) and 30).

The views of the child

Article 12 protects the rights of children to have free opinion in all matters affecting them and that those views should be given due weight in ‘accordance with the age and maturity of the child.’ This principle expressed in Article 12 underpins rights such as freedom of expression (Article 13), freedom of thought, conscious and expression (Article 14), and freedom of association and assembly (Article 15). Such rights are not absolute rights granted indiscriminately. They are relative rights that take into account the age and maturity of the child in the exercise of such rights.

2.2 Monitoring procedures

The Committee of the Rights of the Child comes under the mandate of Article 43 of the Convention. The procedural functions of the Committee are set out in Article 44 and 45.

The Committee, consisting of 10 experts from a number of countries, currently holds three sessions a year, each of 4 weeks duration in Geneva. State parties to the treaty elect committee members for a four-year term, with the possibility of re-election.

Under Article 44, State parties accept the duty to submit regular reports to the Committee on the steps they have taken to put the Convention into effect in their own country. First implementation reports are to be submitted two years after ratification or accession to the treaty, and every five years thereafter.

The Committee also receives information from other UN institutions and treaty bodies such as the Commission on Human Rights and from the Special Rapporteurs on torture, on extrajudicial, summary or arbitrary executions, and on violence against women and especially the Special Rapporteur on the sale of children, child prostitution and child pornography.

The role of NGOs in the decision making of the Committee is also important. Indeed NGOs (or “competent bodies” in the language of the Convention- Article 45a) are assigned a role in the implementation machinery. They might be invited by the Committee on the Rights of the Child to provide expert advice on implementation in areas falling within their scope of expertise. In addition they may receive requests from State parties via the Committee for technical advice or assistance in implementation. In addition the Committee may also invite certain NGOs to take part in the preparatory meetings on State reports. The role assigned to NGOs by the CROC is significant as it is the first time that NGOs are mentioned in the text of an international human rights instrument. It is a testament to the determination of NGOs who participated in the long and strenuous diplomatic process of negotiating the terms of this treaty.

At the end of the deliberations process the Committee adopts ‘concluding observations’ that are statements on its consideration of a State’s report. These observations are meant to form the basis of a national debate within the country as to how to improve the enforcement of the treaty provisions. The concluding observations constitute an essential document, which Governments are expected to implement. However it needs to be stressed that the recommendations of the Committee are just that: recommendations, and not binding obligations.

3. Sexual and economic exploitation of children

The exploitation and abuse of children occurs in so many ways that the drafters of the Convention realised the impossibility of addressing them all. As such they focused on two especially serious exploitative practices: sexual and economic exploitation of children.

3.1 Sexual exploitation

The issue of sexual exploitation of children has attracted increasing attention in recent years. The main forms of sexual exploitation of children for commercial value include: child sex tourism, child prostitution, child pornography and the trafficking of children for sexual purposes.

While the commercial sexual exploitation of children exists in almost every country, in recent decades, large well-organised child sex industries have emerged in the developing nations of Asia, Africa and Latin America. The main reason for children entering the sex industry is economic. Many are from poor rural areas; some who are homeless become exploited because they have no shelter or protection; many are sold by someone they know (usually a parent); others work as either the sole source of income for families or to supplement a family’s income; others are just abducted.

An official figure, given the secretive nature of such work is difficult to establish. The official UNICEF figure is I million children working in the sex industry (in its many forms) throughout Asia alone.

The causes of commercial sexual exploitation of children are complex, with poverty being undoubtedly the major causal factor. However there are multiple factors that create the conditions in which children are sexually exploited, including for example; domestic violence and sexual abuse, racial and gender discrimination, corruption and weak law enforcement, urban and rural migration. Three structural causes in understanding the causes of sexual exploitation include:

poverty
globalisation
gender bias

Article 34 of CROC is the main provision covering sexual exploitation. The intent of the article is not to regulate the sex lives and activities of children, which would be impossible and undesirable. Children are allowed to marry at different ages in some countries and children may want to voluntarily engage in sexual activity at young ages. Therefore the article is framed in such a way that it addresses the sexual exploitation of children rather than the sex lives of children.

3.2 Economic exploitation

The second major from of child exploitation that the drafters of the convention were concerned about was the commercial economic exploitation of children, particularly in relation to child labour. This is usually taken to mean:

low wage rates or no wages at all;
long working hours;
hazardous work in unhealthy conditions;
possible threats of physical violence from employer.

While child labour is prevalent in all parts of the world, industrialised countries have made enormous progress to addressing the issue of child labour. In such countries universal or near universal primary and secondary education exists and many have adopted laws that regulate the age at which children can enter different occupations and the conditions in which they work.

In developing countries the problem of child labour and the general economic exploitation of children is enormous. The collection of reliable statistics is difficult given that most child labourers are ‘hidden’ in informal or unstructured economies outside government control. ILO estimates suggest that around 50-60 million children (5-11 year olds) in developing countries are working in hazardous circumstances.

As with sexual exploitation the main causes of economic exploitation is poverty. In addition to the basic poverty of developing states there is the further complication of the huge debt burdens of developing countries, which has led to cut backs in social welfare programs. Related to poverty is the trafficking of children for the purposes of child labour. In places like India, there is also another social factor. The Indian view of the social order- the caste system- which is a firm ordering of the roles of different strata in society is a view shared by a wide cross section of society: within and outside government; religious and secular; among educators, social activitists, and more broadly by members of the Indian middle class.

Article 32 of CROC covers this form of exploitation. The article is non-specific on the issue of the minium age for work, leaving it up to states to determine for themselves, in their own legalisation and administrative measures, how they wish to deal with the matter. The same is true for the regulation of hours and conditions of employment. Furthermore, in 1999 the terms of the text for a new treaty (Worst Forms of Child Labour Convention) were concluded.

4. Other forms of exploitation

Although sexual and economic exploitation are the two main forms of exploitation addressed in the CROC there are other activities that diminish the rights of children. It is impossible to give each the exhaustive treatment given to sexual and economic exploitation, however it is worth highlighting some of the other problems facing children. These other forms of exploitation are addressed in a general article (Article 36) that obliges State parties to “protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

Girl children

Gender discrimination entrenched in various societal norms keeps young girls from school and from full involvement in the community. In addition they are subject to physical abuse, domestic violence, rape, enforced pregnancy and used as weapons of war.

Victims of war

In the decade since the adoption of the CROC over 2 million children have been killed and over 6 million injured in armed conflict. The trend continues.

Child soldiers

The proliferation of light inexpensive weapons has contributed to the use of children as soldiers in countries such as Sierra Leone, Congo, Sudan, Afghanistan, and Sri Lanka top name just some. As recently as May 2000, the text for an Optional Protocol on child soldiers called the Involvement of Children in Armed Conflict was adopted.

HIV/AIDS

Around the world 8,500 children have been infected by HIV. In Africa the combined social and economic devastation caused by HIV/AIDS in the last decade is greater than the combined destruction of its wars. The same patterns of stigma, taboo and silence found in Sub Saharan Africa is being repeated in Asia, particularly south east Asia. Since the appearance of HIV in south east Asia in 1986, 5 million people including children have been infected. In 1999 the UNAIDS estimated the following levels of infection for adults and children: Bangladesh, 13,000; Cambodia, 220,000; India, 3.7 million; Nepal, 34,000; Pakistan, 74,000; Philippines, 28,000; Sri Lanka, 7500; Thailand, 755,000. The rates of infection continue to increase. Children are particularly in danger due to their invisibility in the community with regards to the disease.

5. Obstacles to the fulfilment of children’s rights

5.1 Domestic implementation

When a State ratifies the convention it assumes a legal obligation on its government to take the legislative and administrative steps necessary to implement the standards of the convention within its jurisdiction. Ratification is not enough but the terms of the convention must be given domestic effect. The most direct action in the realisation of the treaty goals is the policy and practice of governments in relation to the functional areas of the convention.

The vagueness of some provisions in the Convention in relation to State duties can be used in a self-serving way by governments to rationalise the implementation of certain requirements. Phrases such as “all appropriate measures”, “such protection and care as is necessary”, maximum extent of available resources” have uncertain meanings. They virtually offer governments who do not want to fully implement various provisions a way out, despite accountability mechanisms within the convention.

Fundamental to the fulfilment of the treaty provisions is political will on the part of national governments. Where there is an absence of such will, the role of NGOs/informed pressure groups/civil society is essential for both the creation of political will and the monitoring of government accountability in fulfilling its legal obligations.

5.2 Absence of an individual complaints mechanism

There is no provision in the Convention or as yet a subsequent Protocol for individual complaints from children or their representatives in the event the State fails to fulfil the terms of the CROC. Unlike the Optional Protocol of the ICCPR, CEDAW and CERD, which provides for individuals who have exhausted all their domestic remedies to appeal directly to the Committee overseeing the compliance and implementation of the various treaties mentioned. Children at the moment can only rely on the reporting of States, which is inevitably an attempt to show the best picture. While NGOs and other non state party reports are accepted in some cases, children as yet lack the possibility of directly accessing the institutional mechanisms set up to protect their rights and interests.

5.3 Issues of cultural relativism

It has been the non-western states more than others who have stressed the non-universal nature of international human rights norms. For instance in the 1993 Bangkok Declaration, several Asian States while recognising human rights are universal in nature noted that “...they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.”

Culture is a double-edged sword. It is both a force for the better and the worse. Culture (meaning among other things, custom, customary law, tradition) can provide a political base for the protection of minority and indigenous rights. It allows for the practice of ones own religion and the use of ones own language. Culture extends safety nets to children better than governments. However culture, usually with self serving interpretations of tradition, have been used to defend practices such as forced marriages of young girls and bonded child labour, that deny the very liberty and freedom of children.

It is possible to see regional differences and restrictions in the interpretation and the exercise of children’s rights, especially in relation to the concept of the child as an independent human being. The principle of the best interests of the child mediates through such differences. Indeed while we do have a treaty covering children’s rights, this does not mean that we have a uniform understanding of what the concept of children’s rights implies and indeed it continues to be debated and refined. However care needs to be taken to separate between genuine differences of opinion that may occur between cultures, which still holds the possibility of improvement in the rights of children; and self-serving interpretations of tradition that offer no hope of improvement.