2. The human right approach to children’s wel-being

“Children in Developing Countries”

Lecture course by Dr. Renata Serra

CRC

In 1989, the UN General Assembly adopts the Convention on the Rights of the Child It has been ratified by 192 countries, only US

(who has signed it) and Somalia have not done so

Ratification implementation The CRC is only a starting point… See CRC, art. 4

Historical key phases

1924 Geneva Declaration on the Rights of the Child adopted by the League of Nations

1959 Declaration on the Rights of the Child Gave wide impetus to children’s rights (but bypassed

civil and political rights and child empowerment) In many ways it kept a welfarist approach

1979 International Year of the Child It pushed harder the concept that children have special

rights differing from other human rights 1989 is another marking point: fuller concept of rights

UNICEF and other agencies restructure their mandate to reflect a right-based approach

Other significant initiatives

Universal Declaration of Human Rights (1948)

Geneva Conventions (1949) ratified by 194 countries On the conditions of the wounded and sick, prisoners

of war, and civilians at times of war The CRC was followed by:

ILO Convention against the worst forms of child labor 2 Optional Protocols, dealing with ‘the involvement of

children in armed conflict’ and ‘the sale of children, child prostitution and child pornography’

The US ratified all these

The legal solution

Pros Legal protection is the first step (‘the

superiority of the law’) Sanctioning children’s rights into law gives

them full political recognition Cons

Law has no effect if it is not enforced There may be poor correlation between legal

and effective provisions However, the law must be a first step!

The right-based approach

Right-based vs. welfarist approach Language of rights ≠ protection & dependence See children in their own rights rather than extension of

parents “Children have rights to…” ≠ “adults must protect

children from…”

‘Rights’ set up a standard, a goal, which need to be constantly approached and worked for Contrast with the critique that it is pointless or even

counter-productive to set up as rights things that are unattainable

In the words of the CRC

Non-discrimination (art. 2) The principle of the best interests of the child (art. 3) Non separation from parents unless it is in the best

interest of the child (art. 9) The fundamental rights

To life (‘inherent right to life’ art. 6) To a name, to a nationality and as far as possible to

know, and be cared for by, his or her parents (art. 7) To express views freely in matters re: oneself (art. 12) To freedom of expression (art. 13) To freedom of thought, conscience and religion (art.14) To freedom of association (art. 15)

The fundamental rights (cont’d)

To legal protection against interference with privacy (art. 16)

Of the disabled child to special care (art. 23) To the enjoyment of the highest attainable standard of

health (art. 24) To benefit from social security (art. 26) To an adequate standard of living (art. 27) To education (art. 28) Of minority or indigenous group child, to enjoy her own

culture, use her own language (art. 30) To be protected from economic exploitation and

hazardous work (art. 32)

Obligations and protection

State parties have the obligations to: Combat the illicit transfer and non-return of children

abroad (art. 11) Protect and care for a child deprived of her physical

environment (art. 20) Provide humanitarian assistance to the refugee child

(art. 21) Provide appropriate health care (art. 24) Provide material assistance and support programs

w.r.t. nutrition, clothing and housing (art. 27) Make primary education available free to all (art. 28) Promote physical and psychological recovery and

social reintegration of the child victim of neglect, exploitation or abuse (art. 39)

Protection (cont’d)

State parties must protect the child from: All forms of physical and mental violence (art. 19) Illicit use of narcotic drugs (art. 33) All forms of sexual exploitation and abuse (art. 34) Torture and other cruel, inhuman or degrading

treatment (art. 37) [no capital punishment or life imprisonment for crimes committed by minors]

State parties must ensure no child younger than 15 is recruited in the armed forces or takes direct part in hostilities (art. 38)

Towards implementation

Regional-level bodies have not incorporated CRC adequately into their legal instruments E.g. in the Americas, pre-CRC approach to children’s

rights prevails Many courts have not made full use of CRC

provisions in their pronouncements Many state constitutions do not include children’s

rights If they do, political rights are often omitted as well as

the rights of refugee and indigenous children The most advanced constitutions re: children’s rights

are Brazil, Ecuador, Ethiopia, South Africa,

A case study of use of CRC

5 Guatemalan street children tortured and killed by police

Case brought in front of the Inter-American Court against the Gov. of Guatemala and won in 1999 Court declared that GoG violated the rights of these street

children as in art. 2,3,6,20,27&37 of the CRC and failed them doubly

GoG asked for reparation and damage, plus obligations to fully investigate and punish those responsible

This case shows the use of CRC in court cases against states that have ratified CRC Previously the I-A Court had ruled that CRC should override

outdated approaches allowing courts to unleash punishment to children in ‘irregular situation’