International law and
children’s rights: a critical review and a wish list
Marta Santos Pais
Unicef Innocenti Research Centre
I am very pleased to join you today. This important meeting on International Justice and Children provides an excellent opportunity to take stock of the significant progress made the world over in the realisation of children’s rights and to enhance synergies between relevant bodies and mechanisms with a view to enhancing the protection of children’s rights.
The justice system is inherently linked with the implementation of human rights standards and the Convention on the Rights of the Child has set an important platform to advance the realisation of children’s rights. To a large extent, as a result of the entry into force of the Convention on the Rights of the Child, the last several years have been marked by critical steps in international standard setting and in a rich process of national implementation. There is an increasing consideration of the principles and provisions of the convention by international and regional human rights mechanisms and bodies. In most cases, these positive changes have had an impact on children’s legal standing vis-ŕ-vis the justice system.
A landmark year
This meeting is a timely opportunity to acknowledge achievements made in regional and international fora by human rights mechanisms, independent experts and child rights institutions, intergovernmental organisations and civil society partners. And it is, in addition, a strategic occasion to acknowledge prevailing challenges and identify opportunities to be mutually supportive and to bridge experiences and expertise to give children the place and respect they deserve in the justice system.
These discussions take place at a particularly timely moment. Indeed, 2007 is a landmark year for children – it marks:
• The18th anniversary of the CRC;
• The 5th anniversary of the SSC – and its mid-decade review;
• The 10th anniversary of the Machel Study on Children and Armed Conflict and its Strategic Review;
• And it initiates the 1st year of implementation of the recommendations on the UN Study on Violence against Children.
All these processes provide a strong platform to make the outcomes of the meeting known and to effectively influence the initiatives ahead. This opportunity opens avenues to ensure that children genuinely become full fledged citizens, respected and protected in their individuality, human dignity, evolving capacities and potential to enhance democratic institutions and inclusive societies.
Convention on the Rights of the Child: a comprehensive international charter
The Convention on the Rights of the Child, adopted 18 years ago, remains a key reference for the promotion of children’s rights and a source of inspiration for the administration of justice and the consolidation of international justice standards and mechanisms. The convention is a comprehensive international charter of children’s rights. It addresses critical areas of children’s lives, including child survival and development, education and health, family life, leisure and cultural activities, protection from abuse, violence and exploitation, and engagement in decision-making processes within the family, the school system and community as a whole.
The convention also addresses justice related questions. Very often, however, the tendency is to perceive this dimension as reduced to criminal justice issues, where an important normative framework has indeed been set up and strongly supported by a wide range of international and regional legal instruments, including the Beijing Rules, the Riyadh Guidelines, and the UN Rules for the Protection of Juveniles Deprived of Liberty.
But the legal protection of the child in the justice system, together with the child’s right to participate in proceedings, has a wide scope that goes much beyond the criminal sphere. The justice system is, in fact, instrumental to safeguard inter alia, the child’s right to an identity, the right not to be separated from his or her parents, to maintain personal and regular contacts with both parents, even when they or the child live in different countries, to have a say in cases of adoption, to have requests to enter or leave a country for family reunification dealt with in a positive, humane and expeditious manner, to be protected against unlawful or arbitrary interferences with the child’s privacy, family, home and correspondence, to be protected from all forms of violence, abuse and exploitation, as well as from discrimination, including in the context of the enjoyment of economic, social and cultural rights. With this far-reaching approach, the justice system and, more broadly, the legal protection of the child, mirror and reaffirm the inter-relationship of children’s rights, and are inherently linked with their effective safeguard.
Administration of justice and legal protection of the child
In the area of administration of justice, as in all the other areas, the general principles of the Convention on the Rights of the Child provide a decisive, normative and ethical approach to deal with children and ensure the safeguard of their rights:
• Non-discrimination is instrumental to avoid the marginalisation, stigmatisation or punishment of any child for reasons of birth, gender, economic status, race or any other grounds;
• The best interests of the child remains a primary consideration to guide any legislative, administrative or judicial decisions and to help in addressing any conflict of interests concerning the child;
• Child participation and the respect for the views of the child are a requirement in all decisions affecting the child, and in fact also a corollary of the consideration of the child as a subject of rights.
The general principles of the convention constitute core indicators to assess the extent to which the justice system is child-friendly and is effective in the safeguard and fulfilment of children’s rights. These general principles are relevant in civil and criminal matters, in immigration and refugee law, when fundamental freedoms or economic or social rights are at stake, and they remain valid in national as well as in international justice systems. They help us realise the incremental change taking place in Europe and beyond; but they also remind us of how far we still are from the ideals set forth in the Convention.
Across regions, and indeed also within Europe, as a recent Unicef study in the CEE/CIS region made available to this meeting also confirms, children are still criminalised for being homeless, for running away or living on the streets. Vulnerable and marginalised children face added stigmatisation and violence during interrogation by police and in detention. Children at risk are taken into custody and placed in institutional care making it necessary to secure their own protection.
When proceedings affecting the child take place, we continue to be confronted with contrasting legal and procedural solutions which, on the one hand, consider the views of the child unnecessary for the establishment of the child’s identity – name, nationality or access to origins – but which, on the other hand, often envisage the child’s participation as instrumental and “a must” in support of criminal proceedings. This runs counter to the child’s best interests; neglecting the child’s opinions in asylum seeking decisions; and failing to set up child-friendly procedures and mechanisms to enable the child to challenge any violation of his or her rights.
In the review we have conducted at our Innocenti Research Centre, of national legislation adopted to ensure conformity with the CRC, the legal recognition and the effective enforcement of the general principles of the convention remain a frequent gap. It is clearly an area where further work is required in the years ahead.
Let us recall, however, that also in international and regional human rights complaints mechanisms, child-friendly procedures have been missing. One reason is that insufficient efforts have been made to raise awareness and promote understanding of these mechanisms amongst professionals working with and for children. In addition, the development of information on these mechanisms and procedures tailored specifically to children has been neglected.
It is critical to prepare tools that are accessible, simple and expressed in child-friendly language, and to ensure their wide dissemination and understanding, including through the school system as a key component of human rights education and the promotion of citizenship. By investing in these efforts we are also decisively contributing to the prevention of the violation of children’s rights.
Implementation at the national level
The Convention of the Rights of the Child is a far-reaching treaty and has generated a process of change at the national level. As we have learnt from the reporting process to the Committee on the Rights of the Child, in a number of countries, and in particular in Central and Eastern European nations, the rights of the child have been given Constitutional ranking; new children’s codes have been adopted and child-related legislation has been enacted in numerous areas, including on adoption and inter-country adoption, on sexual exploitation, and on juvenile justice. National courts are also taking a more active role in the safeguard of children’s rights, overturning previous laws as a result of their incompatibility with the Convention, and filling gaps in the national normative framework by applying the principles and provisions of this treaty – for example, in establishing the right of the child to respect for his or her physical integrity and to be protected from corporal punishment within the family.
In some instances judicial reform has taken place to ensure a specialised attention to children’s concerns and needs. Across the region, new independent institutions for children’s rights have been set up. Standing as a voice on behalf of children and a child-trusted interface with public administration, ombudspersons and Child Commissioners advise legal reform, monitor the impact of policies and laws on children’s rights and mobilise action to improve the realisation of children’s rights. Moreover, significant steps have been made to promote the coordination of child-related activities across governmental departments, and between national and sub-national authorities, including on justice related questions.
At the same time, important challenges remain. In spite of widespread law enactment, enforcement of legislation has often remained weak.
• In many cases, there has been limited dissemination and understanding of legal reforms introduced, both amongst professional groups working with and for children, and amongst the general public.
• Information targeting children specifically has been rare.
• And much stronger efforts are required in monitoring the impact of legislation on the enjoyment of children’s rights, in addressing emerging issues and concerns, and in investment in programmes and services for children.
International standard setting
The Convention on the Rights of the Child has also had a decisive impact on international standard-setting initiatives and monitoring mechanisms. Of particular importance are the two Protocols that have been adopted and widely ratified, complementing the principles and provisions of the convention and strengthening children’s protection from recruitment and participation in hostilities, and from the sale of children, child prostitution and pornography. In these and in other areas, new legal instruments have been adopted using the CRC as a basis. The Hague Convention on Inter-Country Adoption and the ILO Convention on the Worst Forms of Child Labour are two widely recognised examples.
These achievements have, in turn, been associated with wider processes where children’s rights are gaining an increasing potential and influence – often with an unexpected impact.
Let me illustrate this trend with the two areas addressed by the Optional Protocols to the Convention on the Rights of the Child.
1. Children, war and justice systems
In 1998, the Rome Statute of the International Criminal Court was adopted in Rome, giving birth, after long years of negotiation, to a landmark mechanism to fight impunity for the most serious crimes of international concern – genocide, crimes against humanity, and war crimes. The Statute addresses serious crimes against children, including the recruitment and participation in hostilities of children under 15 in armed forces or groups; sexual violence in war zones and international attacks against protected building such as schools.
As the Rome Statute was being drafted, many asked, “What does international criminal justice have to do with children?” Today the question is no longer raised. In fact, children are at the centre of the international focus on justice, specifically because children are among the principle victims and witnesses of war. Children are brutally targeted in war-affected countries, killed, tortured, raped, and abducted into armed groups to fight in adult wars where they may be forced to commit atrocities against their own families and friends. Boys, as well as girls, are frequently neglected in disarmament, demobilisation and reintegration processes; and they are often forced to flee their countries and may be confronted with stigmatisation and challenging procedures as they seek refugee status in peaceful nations.
The establishment of the ICC is a major achievement in addressing accountability for children, and it is not an accident that the first trial of the ICC will concern the underage recruitment of child soldiers.
In the same spirit, the UN Security Council, with a leading global responsibility in peace and security, has progressively addressed children’s concerns and is, at present, implementing a Monitoring and Reporting Mechanisms on grave child rights violations during conflict, with a particular emphasis on the most serious violations identified by the ICC Statute.
But the international criminal justice system is not only concerned with serious crimes committed against children. Another key area of attention has been the protection of child victims and witnesses. Again it has been critical to put in place child-friendly policies and procedures to safeguard human rights standards, and to make sure children are protected and feel safe as they recount their experiences. For this reason, Unicef with many partners was actively involved with the drafting of the ICC Statute to ensure the inclusion of legal standards aiming towards the safety, dignity and privacy, and the special protection of child victims and witnesses. Unicef was behind the call made by the Rome Statute for the inclusion of judges with legal expertise on specific issues such as violence against children; for the appointment of child expert advisers in the Prosecutor’s Office, and for the inclusion in the Victims and Witnesses Unit of staff with child expertise, including dealing with traumatised children.
With the same concern, Unicef has been engaged in training workshops on children’s rights procedures and legal safeguards for the ICC and truth and reconciliation commissions.
The involvement of children with truth commissions has been another groundbreaking development. Recognising the right of the child to participate in judicial and administrative proceedings that affect their lives, the participation of children in truth commissions has also been guided by the child’s best interest and the need to avoid putting children at risk or exposing them to further harm. The challenge is – and has been – how best to provide children with opportunities and guidance, protection and support to participate in a meaningful way.
In Sierra Leone, for the first time, the TRC involved children – girls and boys – directly in its activities, including in statement-taking, in closed and thematic hearings, and in the preparation of a children’s version of the Commission’s report. Initially there were concerns over the possible negative impacts of children remembering the harms of the war but, as children themselves recognised, their involvement helped them come to terms with their experiences, and gave them a sense of pride in their contribution.
Children further helped to initiate the process of healing and reconciliation, and to envision nation-building efforts. Moreover, their unprecedented experience helped to establish norms and safeguards for the participation of children in similar TRC processes in war-affected countries, and for the consideration of similar standards in national legislation on juvenile justice.
2. Children’s protection from trafficking and sexual exploitation
Important developments have also taken place in areas addressed by the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography. New standards have been adopted at the multilateral and regional levels. In Europe, the recent Council of Europe Conventions on Action against Trafficking in Human Beings, and on the Protection of Children against Sexual Exploitation and Sexual Abuse stand as decisive references for the prevention of these child rights violations, and their criminalisation, for the effective protection of child victims and the promotion of international cooperation between relevant authorities.
These are achievements we warmly welcome. But the real difference will only be made if these important new standards are speedily ratified and given sustained attention through a serious national implementation process. In the area of the protection of children from sexual exploitation and abuse:
• it is critical to incorporate measures of protection of child victims into the national legal framework,
• the legislation needs to be amended as required,
• and new provision should be widely disseminated and promoted, including in training activities for relevant professional groups, translated into child-friendly versions, and addressed in child-friendly settings, including within the education system and through the media.
• It is also essential that the social programmes and multidisciplinary structures foreseen to support child victims of sexual abuse and exploitation are speedily set up and adequately resourced and staffed with specialised personnel duly trained on children’s rights.
The Monitoring Committee established by the new Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse will have a critical role to play in assessing progress made in implementation. Its association with the Parliamentary Assembly, the Commissioner for Human Rights, the European Committee on Crime Problems, and other intergovernmental committees, will ensure important expertise for its mandate. The participation, as observers, of civil society representatives will be instrumental to widen the understanding of child rights issues and will help to promote wide dissemination of the convention and sensitisation of the public at large for its implementation. As part of its mandate, the Monitoring Committee will also be tasked to determine the procedure for evaluating the implementation of the Convention.
In this regard, it is important to take some key considerations into account:
• Firstly, the Committee should be transparent in its assessment and the results should be widely disseminated. Only then will the convention act as a catalyst in changing in legislation, policy and practice.
• Secondly, child-friendly information is crucial and strong efforts should be made to develop and disseminate it widely. Moreover, the call made by the convention for the participation of children in the development of State policies, programmes and initiatives should be considered also a principle for the methods of work to be established by the Committee.
• Thirdly, the convention is designed to build upon and enhance the protection afforded by the standards contained in the CRC and its OP on the sale of children, child prostitution and child pornography. For this reason, the European Committee should promote a close collaboration with the Committee on the Rights of the Child. This will enhance opportunities to be enriched by the UN Committee’s global mandate, experience and monitoring role; it will enable the UN Committee to consider the deliberations of the European Committee as a reference for its work, particularly when it examines European States Parties reports; and not less importantly it will help to avoid divergent or contradictory approaches.
• Finally, the wide scope and the multidisciplinary nature of the new convention will benefit from experiences and initiatives promoted by a wide range of stakeholders, including research institutions, intergovernmental organisations and child rights experts. Close collaboration and enhancing synergies with partners may be a strategic way of promoting and sustaining swift progress.
• One area where these synergies may gain a particular relevance concerns the development of child-friendly information on the new convention and on its future process of implementation.
The child-friendly version of the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, produced by Unicef and the UN Office on Drugs and Crime, with the active support of the Unicef Innocenti Research Centre, is a significant illustration of work done in this area and we stand ready to join hands with you in advancing further efforts.
Differently from the other human rights treaties, the Convention on the Rights of the Child has no separate individual complaint procedure. This has been seen by some as a weakening factor for its implementation process. Although this is not the time to address the important debate around this question, it is nonetheless important to acknowledge that:
• the Committee on the Rights of the Child has early in its work recognised its role in addressing urgent individual cases of child rights violations and in ensuring that relevant human rights bodies and mechanisms are engaged when alleged violations are brought to its attention.
• other human rights mechanisms within the UN system, as well as European human rights monitoring bodies, are giving serious attention to the violation of children’s rights recognised by the Convention. The right of the child to protection from all forms of violence provides an undeniable illustration of this process.
Landmark judgments of the European Court of Human Rights have condemned corporal punishment and assessed States responsibilities to protect children from violence as vulnerable individuals, both in state-provided services and institutions, and in the more private sphere of the family. The Committee of Social Rights has asserted the need for effective legal protection against corporal punishment and sexual exploitation of children, and the European Committee on the Prevention of torture has paid systematic attention to safeguards against the ill-treatment of juveniles.
These three human rights bodies are beginning to use the standards of the UN CRC, in force in all European countries, to inform their judgments, conclusions and standards. The mutually supportive role of these European standards and mechanisms provide a strong legal foundation and framework to ensure the protection of children’s rights within Europe and to influence work in this area across regions. This rich and evolving jurisprudence should be brought together and made widely accessible and known to experts and the public at large to enhance the safeguard of children’s rights at the national, regional and international levels.
At the national level, significant steps are also being taken to enable children to access justice and to be heard when their rights are violated. In a number of countries, legislation recognises the right to go to court when the child has reached a certain age, while younger children have the right to complaint through a child welfare or other agency.
In the case of Poland, the Constitution highlights that “Organs of public authority and persons responsible for children, in the course of establishing the rights of the child, shall consider and, in so far as possible, give priority to the views of the child.” In a few countries, such as Romania and Slovenia, children have the right to initiate legal or administrative proceedings, and children are entitled to file complaints themselves on the violation of their fundamental rights. In Northern Ireland, children have the right to seek legal remedies if they are old enough to understand the nature of the proceedings.
In some cases, the child’s views are essential, at a certain age, for certain purposes. In Russia and Georgia, for example, the legislation requires the consent of children over the age of 10 in matters affecting their legal personality, such as adoption or change of name. These developments, as well as some important pieces of legislation on the participation of the child in judicial proceedings, are welcomed.
At the same time, this is not yet a widespread approach and much remains to be done to make it a reality for all children.
How can we move forward and achieve progress?
• Established international and national mechanisms and complaint procedures need to be made genuinely accessible to children, and understood by children and those working with and for children. Once again, child-friendly language and tools, and their wide dissemination, are essential. Peer information and education may play a decisive role and should be supported, including within the school system.
• Professionals involved with these mechanisms should benefit from effective training on children’s rights and legal standards, and on ethical principles and concerns in dealing with children.
• Child rights should be also included in training curricula and in tertiary education, including in the curriculum of law faculties.
• Moreover, legislation should clearly recognise children’s legal standing and capacity to go directly to court and access international human rights mechanisms. Similarly, it should foresee support services to provide needed information and counselling to children concerned.
In such an important area as the one we are addressing today, these are some initial steps which are clearly within reach. If set in motion, they can make justice an effective and accessible reality for all children.
The Ministerial meeting that will be soon held in Lanzarote will be a very special occasion to move this process forward. We are confident that one central outcome of the meeting will be to agree on concrete steps to consolidate and reinforce further the existing system of justice for children, through the development of European Guidelines for a Child Friendly justice system. Today’s meeting provides a strong basis to move in that direction and we look forward to the opportunity of supporting you in the process ahead.
1. The Convention on the Rights of the Child is a key reference for the promotion of children’s rights, for the system of administration of justice and the consolidation of international justice standards and mechanisms.
2. The general principles of the Convention on the Rights of the Child – namely non-discrimination to avoid the marginalisation, stigmatisation or punishment of children on any ground; the best interests of the child as a primary consideration in any legislative, administrative or judicial decision affecting the child; child participation and respect for the views of the child in administrative and judicial proceedings concerning the child – should inform any normative and ethical approach to ensure the safeguard of children’s rights in national and international justice systems and mechanisms. The general principles lay the foundation for a child-friendly justice process and are relevant in civil and criminal matters, in immigration and refugee law, when fundamental freedoms or economic or social rights are at stake, and in national as well as in international justice systems.
3. International and regional human rights standards of relevance to the realisation of children’s rights should be speedily ratified, and effectively implemented at the national level and in the context of international co-operation between Member States – including the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, the Council of Europe Convention on Action against Trafficking and the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse.
4. Stronger efforts are required to make existing international and regional human rights standards and complaints mechanisms widely known, particularly amongst professionals working with and for children to promote their relevant use in the safeguard of children’s rights
5. Child friendly versions of existing international and regional complaint procedures and mechanisms should be developed to enhance their understanding and use by children and their representatives. The Child Friendly Version of the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime constitutes an important reference in this regard.
6. It is critical to promote the development of child targeted and child sensitive information on international and regional human rights complaints mechanisms and procedures, as well as on national mechanisms and remedies, including by using accessible, simple and child-friendly language, ensuring the consideration of this information in the context of the school system as a key component of human rights education, and by promoting peer information and education amongst children themselves.
7. Child rights and legal standards for children should be included in relevant tertiary education, professional courses and training curricula, and children’s rights specialists identified in relevant settings, including in judicial bodies, police stations and immigration offices.
8. National legislation needs to be brought in conformity with relevant international standards, incorporate legal safeguards and child friendly procedures for the realisation of children’s rights, including with a view to ensuring children’s access to justice and effective remedies, and to securing the protection of child victims and witnesses. In particular, national legislation should recognise children’s legal standing and capacity to go directly to court and access international human rights mechanisms for the safeguard of their rights.
9. Law enforcement needs to be given due attention, including through awareness raising and training activities on children’s rights and children’s legal safeguards amongst professionals working with and for children, the effective use of these standards in child friendly settings (e.g. judicial bodies, police stations, immigration offices and child institutions), the development of relevant support services and structures and the mobilisation of adequate financial and human resources.
10. Established international and national human rights mechanisms and complaint procedures need to be made genuinely accessible to children. Ombuds and Commissioners for Children’s Rights can play an instrumental role in supporting these efforts.
11. Enhanced collaboration should be promoted amongst international human rights bodies and mechanisms with a view to enhancing synergies between their mandates and enabling the regular exchange of information to advance the realisation of children’s rights. Consideration should be given to the holding of a periodic meeting of these mechanisms and bodies.
12. International and regional mechanisms and bodies with an overall human rights mandate should identify a specialised rapporteur or focal point on children’s rights to help to further enhance the safeguard of the rights of the child in relevant cases and support the mainstreaming of children’s rights in the jurisprudence of these mechanisms and bodies.
13. Child related jurisprudence of all European human rights bodies and mechanisms should be brought together in a periodic publication and made widely accessible to experts and the public at large to enhance understanding of the role of the European human rights machinery in the promotion of the rights of the child and support the Council of Europe’s efforts to build a Europe for and with children.