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THE TEAM

The United Nations monitoring bodies and the protection of children’s rights


Jane Connors

Senior Human Rights Officer Office of the United Nations High Commissioner for Human Rights

Introduction

As is well known, international law provides a strong framework to promote and protect the human rights of children. Indeed, the imperative of protection children’s rights was the concern of a number of very early international multilateral treaties, most notably the 1926 Slavery Convention. However, the establishment of the United Nations, whose Charter proclaims the promotion and encouragement of respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion as one of the principal purposes of the Organisation, provided the basis for the development of the comprehensive international legal system of human rights protection which exists today to which children, as human beings, are fully entitled. Children are also entitled to enjoy the protection contained in international legal instruments relating to international criminal, humanitarian and labour law.

The following provides a brief overview of the United Nations human rights treaty system and the mechanisms it establishes, focusing on the relevance of the system for children. The Convention on the Rights of the Child, its Optional Protocols and the work of the Committee are not addressed in any depth as other contributions focus on these. This should not be interpreted as suggesting that the roles of the treaty, its Optional Protocols and the Committee are underrated in any way.

Human right standards

Since the adoption of the Universal Declaration of Human Rights, the first authoritative, although not legally binding, statement of human rights in 1948, over 60 treaties addressing concerns such as slavery, administration of justice, genocide, the status of refugees and minorities and human rights have been elaborated. Each is grounded in the concepts of non-discrimination, equality and recognition of the dignity of each and every individual contained in the United Nations Charter, the constituent document of the Organisation and the Universal Declaration, and each makes it clear that the rights and protections they contain are available to all, including children, on a basis of equality.

Children are therefore entitled to the rights and protections set out in the seven human rights treaties currently in force. These are the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; the 1966 International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; the 1979 Convention on the Elimination of All Forms of Discrimination against Women; the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child and the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Substantive protection provided by these treaties is expanded by the 1979 Optional Protocol to the Covenant on Civil and Political Rights on the death penalty and the two Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography respectively which were adopted in 2000. Two new human rights treaties, both adopted in December 2006, currently open for signature, ratification and accession – the Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities – create opportunities for further protection.

The Convention on the Rights of the Child and its Optional Protocols create a web of legal principles and standards which govern all law, policy and practice affecting children. At the same time, specific protection for children is included in most of the general treaties. The International Covenant on Economic, Social and Cultural Rights, for example, provides that states parties recognise that children and young persons should be protected from economic and social exploitation and employment of children in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. It also requires states to set age limits below which the paid employment of child should be prohibited and punishable by law. The International Covenant on Civil and Political Rights provides that the death sentence shall not be imposed for crimes committed by persons below 18, establishes that every child shall have the right to such measures of protection that are required as a result of his or her status as a minor without discrimination and includes a number of provisions concerning the treatment of children in relation to sentencing, arrest and detention. The Convention on the Elimination of All Forms of Discrimination against Women, fully applicable to girls under 18, provides in Article 16.2 that the betrothal and marriage of a child shall have no legal effect and that all necessary action, including legislation shall be taken by states to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. The importance of specific provisions for the protection and promotion of the rights of children was emphasised by many delegations and non-governmental observers during the negotiations leading to adoption of the Convention on the Rights of Persons with Disabilities. Amongst the general principles of the elaborated in Article 3 of that convention is the respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. Article 7 also provides that states shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and that in actions concerning children with disabilities, the best interests of the child shall be a primary consideration. States parties are also required to ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right. Article 25 of the new Disappearance Convention obliges states parties to prevent and punish the enforced disappearance of children, and related actions, and each states party is required to take measures, including assisting other states to search for and identify children subject to disappearance and return them to their families of origin.

Implementation

The implementation of each of the core treaties, including those that have yet to enter into force, is monitored by a treaty body comprised of a committee of independent experts – ranging in number from 10 to 23 members – nominated and elected by states parties who serve in their individual capacities. An eighth treaty body, the Subcommittee on Prevention of Torture, established by the Optional Protocol to the Convention against Torture, mandated to conduct visits to places where persons (including children) are deprived of their liberty in order to prevent torture and other cruel, inhuman, degrading treatment or punishment, and to interact with national preventive mechanisms began work this year and will conduct its first visit on October 2007.

The committees monitor implementation through a variety of procedures. Each reviews implementation through consideration of reports submitted by states parties in the presence of states representatives, following which conclusions, containing recommendations for further action are put forward. Five of the treaties currently in force provide for an optional ‘communications’ procedure which entitles individuals in states which have accepted the procedure to petition the relevant treaty body alleging their rights under the specific treaty have been violated. An optional petitions procedure is available in respect of the new treaties, while an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which would provide such a procedure in respect of that Covenant is currently being negotiated. The Committee against Torture and the Committee on the Elimination of Discrimination against Women are competent to inquire into grave, serious or systematic violations of the relevant conventions again in states which have accepted these procedures. This procedure, known as an inquiry procedure, is also included in the new treaties. An interstate complaints procedure – which has never been used – is available to monitor implementation of four of the treaties currently in force: this procedure is also included in the Disappearance Convention. A number of new monitoring mechanisms are included in this treaty: Article 30 entitles relatives of a disappeared person (which could include a child) their legal representative, counsel or any person authorised by them, as well as any other person having a legitimate interest, to submit a request to the Committee that the person be sought and found as a matter of urgency; and Article 34 allows the Committee to urgently bring a practice of widespread or systematic enforced disappearance in the territory under the jurisdiction of a state party to the attention of the General Assembly after the Committee has sought information from the state party concerned on the matter. The draft Optional protocol to the Economic, Social and Cultural Rights Covenant would create individual and inter-state communications procedures, and an inquiry procedure, as well as a system of collective complaints accessible by non-governmental organisations. This latter novel element – something the drafters of the original Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women envisaged – would considerably broaden the accessibility of the petitions procedure, currently available to those who can show they are victims of the alleged violations or their representatives, to those who find it daunting because of procedural issues or fear of reprisals, including to children.

The UN monitoring bodies and children’s rights

It is relatively safe to predict that by 2010 nine core United Nations human rights treaties will be in force, and the Subcommittee on Prevention of Torture will be well-established in its work. It is likely also, that an Optional Protocol providing more monitoring mechanisms to the Committee on Economic, Social and Cultural Rights will be finalised, and possibly, in force. As such, and with the profound impact of the Convention on the Rights of the Child, its Optional Protocols and the work of the Committee on the Rights of the Child there will be sufficient general, comprehensive, detailed, as well as specific international legal standards relating to the human rights of children. With the almost universal acceptance of the Convention on the Rights of the Child, and the broad acceptance of human rights treaties generally, the elaboration of further binding international instruments should be unnecessary. Sets of rules or recommendations delineating concrete actions to implement those standards and governing specific issues, such as violence against children, might be helpful.

While there will arguably be no need of new standards, gaps in implementation will persist, and may widen, as a result of lack of capacity or political will, and it can be argued that the current mechanisms to monitor children’s rights may be insufficient to bridge those gaps. Through its consideration of the reports of states parties, formulation of concluding observations, general comments, elaborated in light of information gained through the reporting process and other output, such as days of general discussion and follow-up activities, the Committee on the Rights of the Child has provided guidance to states parties and others on the content of the rights in the convention and steps required for full implementation. The other treaty bodies also raise questions on children’s enjoyment of their rights in consideration of reports, concluding observations and general comments, as well as in their consideration of individual complaints and views on adopted in relation to complaints. For example, the general comment on the right to education of the Committee on Economic, Social and Cultural Rights expresses that Committee’s view that corporal punishment in the context of education is inconsistent with international human rights law and the dignity of the individual. The Committee on the Elimination of Discrimination against Women routinely addressed the rights of girls, adopting general recommendations on States’ obligations under the convention with regard to female circumcision and outlining the legal obligations of states with respect to gender-based violence against women.

However, the quality of scrutiny of treaty bodies in the context of report consideration is dependent to a large extent to the information and support it has, including through submissions from the UN system, NGOs and national human rights institutions. In this context, information is more readily available to the Committee on the Rights of the Child than the other treaty bodies. Monitoring through the reporting procedure is also reactive and depends on the willingness of states to report in a timely fashion, or at all, with many facing challenges in this regard. Petitions and inquiry procedures offer a more proactive avenue, although consideration of petitions can also be considerably delayed. However, current international petition procedures present profound challenges in the context of children’s rights and it is notable that few petitions have been presented on behalf of children, and those that have been have been predominantly aimed at vindicating the rights of parents or carers, rather than the child complainants. Broader approaches to standing allowing for collective complaints, rather than confining standing to those who can provide that they are victims of the alleged violations or their representatives could make these procedures more accessible to children. More efforts could also be made to make these procedures well known to children and simplify procedures. NGOs and others whose work focuses on children could also be encouraged to access international remedies. International organisations, including the United Nations and the Council of Europe, could do more to emphasise the impact of these procedures at the national level in terms of changing laws and policies.

It is notable, also, that neither the Committee against Torture, nor the Committee on the Elimination of Discrimination against Women has conducted an inquiry focused on children. Inquiries are generated by information submitted by NGOs, and it is important that they be aware of the impact of these procedures and how to use them to promote and protect the rights of children. It is important, also, that treaty body members become sensitive to the rights of children, so that these issues are taken up in their procedures. It may be that the new treaties with their specific emphasis on children will bring about a change of approach so that the rights of children are routinely addressed in their work. In addition, it is time to consider the elaboration a complaint protocol for the Convention on the Rights of the Child, carefully crafted so that children have full access to such an instrument. This would not only provide children with the full range of procedures available in respect of other treaties, but would allow the Committee on the Rights of the Child to develop its jurisprudence against the background of concrete individual cases.