Are The International Protections For Children Truly International?
“Humanity has to do its best for the child.”
– Declaration of Geneva
Recently on 20th November 2016, the Universal Children’s Day was celebrated all around the globe with the motive of spreading awareness on children’s rights and the violations of their fundamental rights across the world. The essence of this day is to promote international togetherness, awareness among children worldwide and improving children’s welfare. November 20th is an important date as it was the date in 1959 when the UN General Assembly adopted the Declaration of the Rights of the Child. It was also the date in 1989 when the UN General Assembly adopted the Convention on the Rights of the Child. The theme of this article is to analyse whether children of the world are given their rights and are protected under international law from the abuses they suffer. Moreover, the article will also intend to point out the areas related to children’s right which lack protection under international law.
The full list of rights for children and young people under the age of 18 is set out in the United Nations Convention on the Rights of the Child, the most accepted standard on children’s rights in the world. Child rights include the right to survival, identity, food, nutrition and health, development, education and recreation, name and nationality, family and familial environment, protection from neglect, maltreatment, misuse, abuse, trafficking, etc. The rights codified by the International Covenant on Civil and Political Rights (ICCPR) are universal, so they apply to everyone without exception and this includes children. Although children have all rights as adults do, some rights such as the right to marry and the right to vote come into effect only after the child reaches maturity. There are numerous international law documents intending to protect and ensure the rights of children all over the globe like the Declaration of the Rights of the Child 1959, Minimum Age Convention 1973, Optional Protocols to the CRC on Sex Trafficking, Armed Conflict, African Charter on the Rights and Welfare of the Child 1990, European Convention on the Exercise of Children’s Rights 1996, Universal Declaration of Human Rights 1948, International Covenant on Economic, Social and Cultural Rights 1966, International Covenant on Civil and Political Rights 1966 , European Convention on Human Rights 1950, etc.
Right to life is enshrined under Article 6 of CRC to protect the right to life, survival and development of children. Moreover, it includes disabled children and provides under Art. 23 (1) of CRC that they should be provided with a decent life with dignity and facilitations and opportunities of active participation in the community. Under Art. 24(2)(d) the right to health for themselves and their mother (both pre and post natal) is provided. Article 10 of the International Covenant on Economic, Social and Cultural Rights ensures the right to health – not to be discriminated against – and protection from exploitation and violence. Similarly Art.7 of the European Social Charter asks its members to provide a higher minimum age of admission to employment for occupations regarded as dangerous or unhealthy and not to be employed if that would deprive the child from the benefit of education. Moreover, Protocol II Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts states in Part II, Article 4(3) to ensure education, including religious and moral education for children. Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights under Art. 16 gives a comprehensive set of rights for children including the right to special protection, the right for the young child, save in exceptional circumstances, not to be separated from his mother, the right for children to remain under the protection of their parents, and the right to free and compulsory education. Children have the right to preserve their identity under Articles 7 and 8 of CRC. Special protection right for refugees’ children is granted under Articles 20 and 22 of CRC. Articles 8 and 30 of CRC provide the freedom to exercise culture. CRC even includes the right to fair trial for juveniles under Article 40. And to have their views heard under Article 12 of CRC. The essence is to ensure the best interests of children in any given society.
Obviously, children are human beings and the rights of humans are of crucial importance in all arenas, whether it be national laws of a state or international regimes. However, minors need special protection and enforcement of their rights more than the majors. For this purpose, a minor or a child is a human being of less than 18 years of age. It is supported by the Convention on the Rights of Children 1989 (CRC), Convention Concerning The Prohibition And Immediate Action For The Elimination Of The Worst Forms Of Child Labour and other numerous international and national instruments. The rights generally intended to be protected are civil, political, economic, social, health and cultural. CRC has been signed by 140 states which clearly shows the importance of children’s rights. The CRC is the most widely ratified human rights treaty as well with 195 ratifications. Sudan and USA have not ratified the convention, so they are not bound by the treaty. However, states are bound by convention rights under customary international law (Nicaragua v. USA). Moreover, ratification and signing of this treaty shows ‘consistent’ and ‘overwhelming state practice’. Also, conventions and other related international law documents along with the effect of such large ratifications show strong opinio juris by the states.
UNICEF considers children as human beings with a distinct set of rights instead of passive objects of care and charity. UNICEF is dedicated to meeting the six of eight goals that apply to the needs of children so that they are all entitled to basic rights written in the 1989 international human rights treaty.
International law has even engaged itself with matters of child labour. For example, Article 1 of Convention Concerning The Prohibition And Immediate Action For The Elimination Of The Worst Forms Of Child Labour provides that each member of the Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. Article 3 of the same convention attempts to determine child labour, including sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, and forced or compulsory recruitment of children for use in armed conflict, as slavery. It includes the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs and production of pornography, or such performances and lastly, includes work which harms health, safety or morals of a child. However, international law, despite ensuring that it covers such matters, is still not efficient in protecting it. Despite the classical argument of there being a lack of enforceability in the international arena, it is also a fact that international law gives leniency to the states to define child labour. Article 4 of the same convention asks national laws and regulations to identify the work which harms health, safety or morals of a child. So, the Chinese coercion on children to become better athletes and forcing them to strict training and punishing them in case of non-compliance comes under Article 4. However, it is a factual reality but not a legal reality. Under Article 4, the consultations with the organizations of employers and workers concerned, and considering relevant international standards, in particular Paragraphs 3 and 4 of the Worst Forms of Child Labour Recommendation, 1999 are intended to act as checks and balances on the nationally determined criteria. Designing and implementing programs of action to eliminate the worst forms of child labour and measures to ensure the effective implementation and enforcement of the provisions giving effect to this convention, including the provision and application of penal sanctions or, as appropriate, other sanctions, are prescribed by the convention. One may consider it to be an efficient protection of children’s right under international law. The discussion is not going to depend upon enforce-ability as it is, compared to domestic law, inherently weaker. Even UNICEF accepts that despite these steps of the international community, many children still do not enjoy their full rights at par with their peers.
Children are abused, neglected and exploited by society. The abuse is done at every level of the social structure. They are neglected the right to education, freedom of religion, right to be heard, form contracts, be treated with care and provided with all facilities without excess hardship. There are numerous instances of corporal punishment and sexual abuse of children, however, it should not be carried out just because it is legally and socially approved in certain countries. The children are exploited because of their feeble structure and dependability. They are subjected to human trafficking, physical and humiliating punishment, harmful traditional practices (including early marriage and genital mutilation) and recruitment into armed forces and groups. This results in a negative impact on the development of children, their self esteem as well as their physical and mental health.
The basis for this maltreatment is that international law cannot force a state to enter into a convention and even if a state signs it, the constitutional setup acts as a legal obstacle and asks for ratification through toilsome procedures. Meanwhile these procedures are in process, the rights are not protected domestically. Even if they are provided under domestic law, their applicability is hindered by strict interpretations.
Children have the right to life. A general rule of law has been that there can be no execution of juveniles. The exceptional cases have been insufficient to provide customary law as no treaty provision expressly allows executions – it is neither a general state practice nor considered binding upon any state to execute juveniles or snatch the right to life from them. Even though majors can be executed, executions are almost non-existent for juveniles. In other words, juveniles have blanket immunity from execution and derogation of their right to life. Even in wartime, it is a rule that women and children are not to be killed. So international law is providing protection to minors. But as children do get executed in some instances, international law has not been 100% effective in its objectives.
Even some families are unable to provide these rights to their children because of illiteracy or financial incapacity.
Children also have the right to nationality like all other individuals. It is their civil and political right. They are provided with the right to education, health and other facilities as economic, social and cultural rights. They also have an individual right, which is not provided to the majors, which is the right to live with parents. Even when there is a divorce between parents and a civil contract is rescinded or terminated, the rights of children are protected and they retain the right to inherit from their parents. Children have the right to have a guardian, which is because of their dependency on others – they are not given this protection as charity but as a matter of right. In our social environment the Syrian war resulting in a large number of refugees include children as well. The pictures of a Syrian child dead on the shore attracted the attention of the international community to consider the collective rights of children as part of the rights of refugees. But one may question that even if international law has set aim to eliminate such deprivation of rights, it has failed to do so.
The enforcement of CRC is administered by the Committee on the Rights of the Child. The Committee also monitors implementation of the Optional Protocol on the Involvement of Children in Armed Conflict(OP-AC) and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OP-SC). Its role has been vital in putting forth concluding observations on the second periodic report of the Holy See (31 January 2014). In February 2014 the Committee, after interviewing two top officials of the Catholic Church, published observations described as “a scathing indictment of the Vatican’s handling of child sexual abuse cases involving clerics, releasing a report that included criticism of church teachings on homosexuality, gender equality and abortion”. This shows that children’s rights are now protected by the international community to some extent. But ‘some extent’ means that rights are not protected absolutely.
Finally, the international protection of children’s rights is enshrined under various documents of international law. The rights of children are not only provided to juveniles of signatory states but also to juveniles in non-member states under customary law. Most of the abuses include torture, child labour, slavery, sexual abuses and trials of juveniles not dealt by juvenile law. However, law being a living phenomenon needs to be evolving with future developments. Interesting areas may include the rights of children in wartime, infanticide versus right to life, guardianship of children in international law, freedom of religion, the medical conditions of children under international law and desires of children as a right versus the best interests of a child. International law can be more enforceable in this regard by perhaps providing individuals and children a locus standi in regional courts which are given jurisdiction do adjudicate under international law instruments. This may be a better way of ensuring rights to children as it is our duty to give the most to future generations.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
