Children as holders of rights
Advert

Children as holders of rights

Traditionally, international law was the law that regulated actions between states. However, especially since World War II, there was the emergence of new actors in the international law field, including individuals. The development of international child rights reflects the way children were seen by the legislators.

The 1924 Geneva Declaration adopted by the League of Nations was primarily concerned with the protection of children's welfare rather than their rights. Geraldine Van Bueren says that the 1924 Geneva Declaration assumed that children's rights were to be protected by adults alone without any child participation. This attitude was reflected in the 1959 United Nations Declaration of the Rights of the Child.

The Universal Declaration of Human Rights applies to all human beings whether adults or children. Throughout the declaration, individuals are referred to as "everyone" or "all". Thus, children are not excluded. In fact, article 7 of the same declaration states: "All are equal before the law and are entitled without any discrimination to equal protection of the law".

The same approach was adopted by the International Covenant on Economic, Social and Cultural Rights (ICESCR) and by the International Covenant on Civil and Political Rights (ICCPR). However, although all individuals were subjects of international law, children were still seen as objects of international law. Children were grouped in the same article of law together with mothers, as in article 25(2) of the Universal Declaration of Human Rights. Article 10 of the ICESCR puts together the family, mothers and children and children in employment. Only article 24 of the ICCPR is fully dedicated to children. Article 24(1) states that "Every child shall have, without any discrimination... the right to such measures of protection..." Until now, specific reference to children's rights was in terms of protection rights only.

It was only with the 1989 United Nations Convention on the Rights of the Child (UNCRC) that children were acknowledged for the first time as being holders of rights. As Prof. Van Bueren and Lawrence J. LeBlanc state, the UNCRC's children's rights included not only protection rights but also provision, prevention and participatory rights. The UNCRC sets new child rights such as the right of indigenous children to practise their own culture. It also enshrines rights that were previously only acknowledged in case-law under regional human rights treaties such as the child's right to be heard in any judicial or administrative proceedings affecting the child. It sets binding standards in areas such as safeguards in adoption procedures and the rights of the mentally and physically disabled children. It also imposes new obligations including the abolishment of traditional practices prejudicial to the health of children and it obliges states not to discriminate against children.

The convention has been improved by two new protocols: the optional protocol on the involvement of children in armed conflict and the optional protocol on the sale of children. These protocols enhance and enrich articles 38 and articles 32-36 of the UNCRC respectively. In the former, it raises the minimum age for compulsory recruitment to 18 instead of the UNCRC's 15 and the latter protocol enforces the law by making the offences extraditable.

The 1999 International Labour Organisation's Worst Forms of Child Labour Convention covers all worst forms of child labour including the sale and trafficking of children such as debt bondage, serfdom, forced labour and armed conflict. The convention has a horizontal effect, because states must consult with employers and workers' organisations to establish monitoring mechanisms.

In addition to these international instruments, there have been various regional child rights instruments. The African Union has the African Charter on the Rights and Welfare of the Child, which is built on the UNCRC with additional provisions applicable to the African identity. Articles 5(1)(d) and 6 of the European Convention on Human Rights (ECHR) refer to legal proceedings involving juveniles while the European Social Charter mainly regulates the minimum ages and the conditions of employments when it comes to minors. The European Convention on the Exercise of Children's Rights provides for children to be informed of or allowed to participate in the decision-making processes.

The American Declaration of the Rights and Duties of Man applies to "all persons" while the American Convention on Human Rights is more child-centred than the ECHR, states Prof. Van Bueren.

The Protocol of San Salvador caters for certain rights of the child such as the non-separation of children from their parents and the right to free and compulsory education. The African Charter on Human and People's Rights (Banjul Charter) relies on the existing international protection of children's rights while the African Charter on Human and People's Rights on the Rights of Women in Africa includes provisions on the rights of the girl-child.

Children invoking the ECHR have successfully brought cases, either on their own behalf or as co-applicants, and two cases invoked the petitioning procedure under the 1995 Protocol to the European Social Charter. This international and regional recognition of children's rights shows that these rights are no longer merely a domestic concern but a global one.

Dr Mangion is a lawyer with a special interest in family and child law.

Comments not loading? We recommend using Google Chrome or Mozilla Firefox with javascript turned on.
Comments powered by Disqus  
Advert
Advert