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LLM Jeugdrecht – Children’s RightsW1: Internationale kinderrechten en kritische reflecties
Literatuur samenvatting
J.E. Doek, ‘The Human Rights of Children: An Introduction’ 2018, p. 3-29.1
The role of children’s rights existed well before the CRC (Committee on the Rights of the Child) entered into
force in 1990. The road to the recognition of the human rights of children started with the Geneva Declaration of
the Rights of the Child (1924) followed by the UN Declaration of the Rights of the Child (1959).
History
The Codex Hammurabi was the first legal document dealing with the position of the child (1870 B.C.), stating
that a father cannot kick his son out of the house if the son is not guilty of anything. Roman law played an
important role in the development of laws in Europe, conforming the view that a child is the parent’s property
and that their power is absolute. At the beginning of the twentieth century this power was limited. Provisions
were inserted allowing state authorities to intervene in family life in the interest of the child.
The Geneva Declaration on the Rights of the Child (1924)
The Declaration of Geneva was creating with the purpose of providing necessary relief for children’s suffering
after WWI. It deals with humanitarian issues.
The UN Declaration of the Rights of the Child (1959)
The Declaration contains ten principles, starting with the principle of non-discrimination. Furthermore, children
shall be given opportunities and facilities to enable them to develop in a healthy and normal manner and in
conditions of freedom and dignity. The best interests of the child shall be the paramount consideration.
Other noticeable examples of work of individuals who contributed to the recognition of the child as a rights
holder:
- Korczak (Goldszmit) (1912-1942): treatment of children should be based on and led by the right of the
child to respect. Every child has the right to property.
- The Children’s Rights Movement (1977): young people are the most oppressed of all minorities. Based
their ideas and actions on the right of the child to self-determination and the same rights as adults (to be
treated no worse than an adult would be). The ideas were too radical for the movement to be a success.
However, the Movement did lead to the establishment of the Children’s Defence Fund (1973).
- Freeman (1983): wrote a book presenting a framework for children’s rights and distinguishes between
welfare rights, protective rights, adult rights and rights against parents.
o The welfare rights find their expression in the Declaration on the Rights of the Child (1959).
They are meant to ensure that the welfare needs of nutrition, health services, education and
housing are met. They are ‘protective rights’ which protect children against neglect, physical
or emotional abuse and other forms of exploitation.
o Adult rights claim that children should enjoy the same rights as adults. Freeman does not
agree with the child liberation school that children should have the right to be autonomous and
free to determine their own choices, regardless of age (because of developmental psychology
and cognitive development).
The Convention of the Rights of the Child (1990) (‘CRC’/’IVRK’)
Working Group
The proposal for the CRC (1978) did not deal with the with the whole range of rights and was didn’t mention
implementation in order for it to be a legally binding instrument. Therefore, the Working Group was established.
1
J.E. Doek, ‘The Human Rights of Children' p. 3-29. .pdf
, LLM Jeugdrecht – Children’s Rights
W1: Internationale kinderrechten en kritische reflecties
Literatuur samenvatting
Controversial issues
There were four controversial issues regarding the CRC:
1. The definition of the child (Article 1): are children entitled to the protection of the CRC from birth or
from conception? When does life begin? The Working Group decided to leave this unanswered, which
means that the CRC cannot be used to support nor prohibit abortion.
2. The right to freedom of religion (Article 14): derived from article 18 ICCPR, which states that this
freedom includes the freedom to have or adopt a religion of choice. However, under Islam a child does
not have the right to choose another religion (art. 18 ICCPR is thus only applicable to adults). The
Working Group therefore decided to drop the reference of choice.
3. Adoption (Article 21): adoption of a child is not possible under Islamic law. The text therefore avoids
any obligation to introduce adoption, but reads “State Parties that recognize and/or permit the system of
adoption…”
4. The protection of children in armed conflict: the then existing international standard was no
recruitment of and no direct participation in hostilities by children below the age of 15. Many wanted
to raise this standard to all children below the age of 18. Consensus could not be reached and therefore
there was solely consensus that the age should not be even lower than the age of 15. As a result of the
UN Study on Children and Armed Conflict (1996) and the adoption in 2000 of the Optional Protocol
on the Involvement of Children in Armed Conflict, the age was later raised to 18.
Ratification and Reservations
The UN General Assembly unanimously adopted the CRC which entered into force in 1990 after it was ratified
by 20 states (Art. 49 CRC). States can make reservations at the time of ratification or accession. They must be
compatible with the object and purpose of the CRC and can be withdrawn at any time (Art. 51 CRC).
Separate Treaty on Human Rights of Children
In 1966 the UN General Assembly adopted the ICCPR and the ICESCR. These two Covenants entered into
force in 1976 and are the core international instruments on human rights. Together with The Universal
Declaration of Human Rights (UDHR), they are often called the International Bill of Rights. These documents
also apply to children (Art. 2 ICCPR & Art. 3 ICESCR).
So why was a separate treaty necessary for children’s (human) rights? The International Year of the Child
(1979) was seen as a good opportunity to turn the Declaration on the Rights of the Child (1959) into an
international binding convention. Additional reasons:
- The attention given to the position of children in the two Covenants was limited to care and protection.
Children were not considered to automatically be rights holders.
- A separate treaty obliges states to take children’s rights more seriously by recognizing their inherent
dignity and worth. Children are explicitly recognized as rights holders.
- The CRC allowed for the introduction of innovations specifically relevant to children (eg. the best
interest of the child as a primary consideration (art. 3)).
Structure and content
The CRC consists of three sections:
1. The substantive articles (Arts. 1-41)
2. Provisions relating to reporting and monitoring of the implementation of the CRC by a Committee of
independent experts known as the CRC Committee (Arts. 42-45)
3. The ratification of the CRC, reservations and amendments
The CRC Committee clustered the articles for the purpose of facilitating reporting on the implementation by
State Parties. There are eight clusters:
1. General measures of implementation
, LLM Jeugdrecht – Children’s Rights
W1: Internationale kinderrechten en kritische reflecties
Literatuur samenvatting
2. The definition of the child
3. General Principles
4. Civil rights and freedoms
5. Family environment and alternative care
6. Basic health and welfare
7. Education, leisure and cultural activities
8. Special protection measures
General principles
There are four General Principles of the CRC:
1. Non-discrimination (Art. 2)
2. The best interests of the child as a primary consideration (Art. 3)
3. The right to life and the right to survival and development (Art. 6)
4. The right to express views and have them taken into account (Art. 12)
These principles should be taken into account when implementing the other articles of the CRC.
The position of parents
An important element of the CRC is the recognition of the responsibilities, rights and duties of parents. This is
because children are not isolated individuals, but part of a family. State Parties have the obligation to provide all
parents with appropriate assistance in the performance of their child-rearing responsibilities (Art. 18). Parents
play a key role in the realization of the rights of the child (Art. 5). There is triangle between the child, the
parent(s) and the state, with an ongoing challenge to balance the interests of all three. If necessary, the state
should take appropriate action to protect the rights of the child (Art. 9 and 19).
Evolving capacities of the child
The CRC recognizes the potential and growing autonomy of the child (Art. 5 and 12). The concepts of maturity
and evolving capacities imply that in general the views of older children (adolescents) are given more weight.
Yet, this weight depends on the assessment of the child’s maturity which is ultimately made by an adult.
Following the views of the child may result in a decision contrary to the child’s best interests.
The right of participation is seen as a key element of the recognition of children as rights holders.
The Optional Protocols
The UN General Assembly has adopted three Optional Protocols to the CRC:
1. The Involvement of Children in Armed Conflict (OPAC) (2000): ensures that no child directly
participates in hostilities (Art. 1). The OPAC was the direct result of the UN Study on Children and
Armed Conflict (1996).
2. The sale of children, child prostitution and child pornography (OPSC) (2000): can be seen as an
elaboration of Art. 34-35 CRC.
3. A Communications Procedure (OPCP) (2011): provides children (in countries that have ratified
protocol) with the right to file a complaint with the CRC Committee about violations of their rights.
This can be done on behalf of the child or by the child itself.
Regional treaties
The African Charter on the Rights and Welfare of the Child (ACRWC) (1999) is the only comprehensive
regional treaty on children’s rights. It complements the CRC and addresses a number of issues which are
relevant to Africa.
In Europe, many treaties directly or indirectly relevant for children’s rights have been adopted since the
adoption of the CRC in 1989. In addition, the Council of Europe regularly organizes seminars and conferences
on children’s rights and publishes important documents. The EU issued directives which are binding for all
member states.
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