Refurbishing Child Rights as Human rights in International Legal Perspective

The hallmark of culture and advance of civilisation consists in the fulfillment of our obligation to the young generation by opening up all opportunities for every child to unfold its personality and rise to its full stature, physical, mental, moral and spiritual. It is the birth right of every child that cries for justice from the world as a whole.” - Justice V.R.Krishna Iyer

Introduction

In a civilised society the importance of child welfare cannot be underestimated because the welfare of the entire community, its growth and development depends on the health of its children. Children are considered as a supremely important national asset and the future paramount well-being of the nation depends on how its children grow and develop.The children signify eternal optimism in the human being and always provide the potential for human development. In recent years the children's rights movement has gathered considerable strength and the adoption of international legal standards has been viewed by many as a particularly useful means to entrench in national law the notion that children have rights. In general those rights overlap significantly with all human rights, but they also extend to a variety of special measures to which children are entitled by virtue of their special vulnerability. Human rights are certain rights that are vested in every person by virtue of their being members of human family. Children are human beings and should be treated as such according to all the declarations on human rights. In the twentieth century, however, the recognition was growing that children need special protection and support, if human rights are truly to be guaranteed to them as well.

Children have human rights like any human being. In addition to the general human rights they also have special rights because of their status of mental and physical development due to age.Human rights are natural individual rights that precede the authority of the State. They are the inherent rights of the human person and cannot be taken away by anyone or be given up by the holder of the rights. Human Rights today have acquired legitimacy and significance in external relations of the world community but also in the domestic relations between the State and its citizens.[1] Human rights are to be exercised and enjoyed by all people without which people cannot fully develop as human beings. Human rights allow us to develop and use our intrinsic qualities, intelligence, talents and conscience to satisfy our spiritual and material needs. All children have rights that emanate from their humanity.While no form of government can effectively be defined as maximizing the provision of human rights and children’s rights, there is a strong basis for arguing that democratic forms are more likely to do so in the long run than other governmental forms. There are a fair number of nations that at this juncture appear to be reasonably well oriented to protecting human and children’s rights, but attention to a little bit of history should keep one from becoming complaisant about the prospect. With regard to human rights and children’s rights, attention must be given to providing, as much as possible, for the protection for all persons, and presumably this can happen most dependably in a democracy.[2] Thus children are the very soul of any nation.

Children’s Rights in International Law

The evolution of international standards to protect children is a product of global modernity. The human rights approach to development is increasingly talked about and is becoming a central element in development discourse. UNICEF uses rights language and increasingly a rights based approach since the adoption of the Convention on the Rights of the Child in 1989. Children’s rights in International Law covers a bundle of rights for children under various international agreements and conventions. Among these instruments the importance of rights of children lies in the U.N.Convention on the Rights of the Child which is considered as the magna carta of child rights.

The Convention on the Rights of Child 1989

The Convention on the Rights of the Child 1989 (CRC) is the principal children’s treaty encompassing a full range of political, economic, social and cultural rights. The roots of the United Nation Convention on the Rights of the Child can be traced back to 1923 when Eglantyne Jebb, founder of Save the Children, summarized the rights of children. The Convention aims at protecting children from discrimination, neglect and abuse. The recognition of the special rights of children within the broader human rights discourse led to the adoption of Convention on the Rights of the Child.[3]The Convention embodies four general principles for guiding implementation of the rights of the child in a human rights perspective viz: (i) non-discrimination ensuring equality of opportunity, when the authorities of a State take decisions which affect children must give prime consideration to the best interests of the child; (ii) the right to life, survival and development which includes physical, mental, emotional, cognitive, social and cultural development; (iii) children should be free to express their opinions; (iv) such views should be given due weight taking the age and maturity of the child into consideration.[4]

The Convention accepts without question that children are rights holders; part of the Convention is to educate children and others about children’s rights. It makes children’s rights visible and an object of the study. The Convention on Rights of Children is a lens through which all can look at the state of world’s children.[5] The CRC is, therefore, founded on the following principles, which build the foundation for all children’s rights:

The right to equality: No child may be discriminated against on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The best interest of the child: Whenever decisions are being taken which may have an impact on children, the best interest of the child has to be taken into account at all stages. This applies to the family as well as to state action.

The right to life and development: Every Member State has to ensure, to the maximum extent possible, the survival and development of the child by, interalia, providing access to health care and education, and by protecting the child from economic and social exploitation.

Respect for children’s own views: Children should be respected and taken seriously, and they should be involved in decision-making processes according to their age and maturity.

The Convention on Rights of Child follows a holistic approach to children’s rights, recognising that the rights anchored in the Convention are indivisible and interrelated, and that equal importance must be attached to each and every right contained therein. This Convention is regarded as the most successful international instrument which was developed from the 1959 Declaration of the Rights of the Child. The Convention on Rights of Child is broader and more specific in nature covering all the provisions ensuring human rights to the children within its legal gamut. The Convention is based on different existing international human rights instruments, recognized the basic rights to which children are entitled and sets forth the minimum standards that governments are required to meet in all aspects that affect the lives and welfare of children. It collects rights previously outlined in separate instruments into a single but comprehensive document, elaborating and developing in the light of the special needs of children. The Convention on Rights of Child represents the zenith of humanity’s efforts to guarantee children the right to healthy survival — to development, education and healthcare, and freedom from physical, mental and sexual abuse or exploitation. Furthermore, the CRC guarantees children the right to participate meaningfully in their own destiny. The CRC is also significant because it enshrines, for the first time in binding international law, the principles upon which adoption is based, viewed from the child’s perspective.

[6] The legislative intent of treating child rights as human rights is the outcome of international conventions culminating from various international instruments which has four broad aims viz, the 4 ‘P’s: (i) Protection, (ii) Prevention, (3) Provision and (4) Participation. All these aims have equal importance in a holistic approach to the rights of the child.

General measures of implementation referred in the Convention on Rights of Child[7] interalia cover the thematic issues of bringing domestic legislation and practice into full conformity with the principles and provisions of the Convention. This includes an obligation to make remedies available and accessible to children in cases where the rights recognised by the Convention have been violated. The Convention foresees the granting of international assistance or development aid for programmes geared at children where such cooperation is needed to properly implement the provisions of the CRC and thereby advance the social, economic and cultural rights of children. Raising awareness of the CRC is another core issue. The State Parties are obliged to make the principles and provisions of the Convention widely known to both adults and children.

The Convention lists basic human rights, civil and political rights, economic and social rights, cultural rights, family rights and protective rights. Ratifying countries have agreed to undertake all legislative, administrative and other measures for the implementation of the Convention. Although some countries have incorporated the Convention into their domestic law the primary method of enforcing the Convention is political administrative not judicial. Each country is required to prepare reports on its progress in implementation to the U.N. Children’s Rights Committee. There is a symbiosis between the U.N.Convention and other international instruments concerning children’s well-being. The principles in the Convention have begun to inform the concept of welfare. The Convention accepts the importance of children’s welfare therefore the rights it recognises must be important for welfare which is the penumbra of human rights. Key accomplishments of the CRC have been described as five-fold.  It creates new rights for children under international law that previously had not existed, such as the child’s right to preserve his or her identity[8], the rights of vulnerable children like refugees to special protection[9], and indigenous children’s right to practice their culture.[10]  In some instances, this innovation takes the form of child-specific versions of existing rights, such as those in regard to freedom of expression[11]and the right to a fair trial.[12] In addition, the Convention on Rights of Child enshrines in a global treaty rights that hitherto had only been found in case law under regional human rights treaties (e.g., children’s right to be heard in proceedings that affect them).[13]

Regional Documentation in an International Perspective

African Charter on the Rights and Welfare of the Child 1990

The African Charter on the Rights and Welfare of the Child (ACRWC), the first regional treaty on children’s rights, builds on the 1979 Declaration on the Rights and Welfare of the African Child, but most of its provisions are modeled after those of the CRC. “The main difference lies in the existence of provisions concerning children’s duties[14], in line with the African Human Rights Charter.”

The European Convention on Human Rights 1950

The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (ECHR), the first international human rights agreement to establish supervisory and enforcement machinery, obliges States Parties to “secure everyone within their jurisdiction” the rights and freedoms it sets forth.[15]  The ECHR uses throughout the term “everyone”; as a result, children have successfully brought suit either on their own behalf or as co-applicants with their parents. Although the European Convention dates from a time when children were not seen as having rights but objects of welfare or subject in their parents’ domain it has been instrumental in many developments of children’s rights. The recognition of the rights for parents has also lead to greater consideration of children’s interests. Many of the changes to the law relating to the State care of children in United Kingdom are a result of litigation under the Convention. Rights to contact with children in care, due process in determining rights for parents and children access to records and reduction of delays in children’s proceedings all became the focus for reform.[16]  The European Convention further embodies a provision to uphold the human rights in the interest of children in relation to their parents. Protocol No. 7 to the ECHR provides that while spouses enjoy equality of rights and responsibilities in their relations with their children, this does not prevent States from taking such measures as are necessary in the interests of the children.[17]

Child Rights vis-à-vis Human Rights

The idea of human rights stems from the postulate that certain rights self-evidently pertain to individuals as human beings because they existed in the state of nature before mankind entered civil society. According to John Locke the idea of human rights precedes organized society and it is mainly regarded more as a philosophical and a moral conceptual than legal one.[18] The principle of non-discrimination[19] under Universal Declaration of Human Rights (UDHR) is the heart of the human rights discourse. It calls for the global application of all human rights to all peoples irrespective of their difference. It is evident from this principle that there shall be no discrimination in providing rights to children and treating them in par with other human beings. Therefore in the viewpoint of this universal international legal provision the child right has to be construed in a human rights perspective. The Convention on Rights of Child takes a different normative stance of rather than simply refer to other international instruments to construe Convention obligations. The Convention on Rights of Child recognizes that all human rights are indivisible and interdependent. The Convention requires that no child will be subjected to torture or other cruel, inhuman or degrading treatment or punishment[20] and that every child deprived of liberty will be treated with humanity and respect for the inherent dignity of the human person.[21] Conceptually, such an approach implies that the Convention deems itself competent to construe general human rights obligations concerning children. As mentioned above human rights are universal and all human beings are entitled to them, irrespective of his or her position in a society. Distinction based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status is prohibited. From this it can be understood that distinction based on age is also not permitted. In other words children have all the rights enshrined in the international human rights instruments because of being human. They are neither the possession of their parents nor their guardians, nor that of the state, nor are they people in the making. Children require special care and protection because of their mental and physical immaturity. They need to be brought up in an environment capable of providing care and affection. Taking this into consideration Universal Declaration of Human Rights recognized the special care and protection of childhood.[22]

The interaction between Human Rights Law and International Humanitarian Law has received a great deal of scholarly attention. The child’s rights is regarded as human right and the same is refurbished in several international documents including that of the special measure and protection of children also as recognized in International Covenant on Civil and Political Rights[23]and International Covenant on Economic, Social and Cultural Rights[24] respectively. Human rights treaties are often followed by ‘optional protocol’, additional legal mechanisms that complement and add to the treaty. A protocol may be on any topic relevant to the original treaty and is used to further address something in the original treaty, address a new or emerging concern or add a procedure for the operation and enforcement of the treaty such as adding an individual complaints procedure. The Optional Protocols to the Convention on the Rights of the Child provide more detail and expand obligations beyond those under the original treaty. A protocol is optional because it is not automatically binding on State that has already ratified the original treaty. The obligations in the protocol are additional and may be more demanding than those in the original convention, and so States must independently choose whether or not to be bound by a protocol. Accordingly, an optional protocol has its own ratification mechanism independent of the treaty it complements. Generally, only States that have already agreed to be bound by an original treaty may ratify its optional protocols. The Optional Protocols to the Convention on the Rights of the Child do however permit non-States parties to ratify or accede to them. For example, the United States, which has not ratified the Convention, has ratified both of the Optional Protocols. States must ratify each of the Protocols following the same procedure required when ratifying the Convention.

In several General Comments, the Convention on Rights of Child uses other international human rights instruments as guidelines to assist States in carrying out their obligations under the Convention. The initial assessment is the process of determining the best interests of the child. In its General Comment on national human rights institutions, the Convention on Rights of Child states that such mechanisms should be established in compliance with the Paris Principles.[25] Similarly, the CRC highlights parallels between the Children’s Convention and other international agreements by referencing the interpretations of other international bodies.[26]

Committee on the Rights of the Child

The Committee on the Rights of the Child publishes its interpretation of the content of human rights provisions in the form of general comments on thematic issues. The Committee comprised of eighteen independent human rights experts, monitors States parties implementation of the Convention on the Rights of the Child and the Optional Protocols to the Convention. The Committee’s monitoring role is rooted in its review of periodic reports from each State party detailing the State’s progress toward the child rights protections mandated by the Convention.[27] The Committee has an important role in interpreting international humanitarian law. Of the core international human rights treaties with interpretive bodies to monitor implementation. The Children’s Convention is the only one international instrument that discusses humanitarian law explicitly.[28] As a result, the Convention on Rights of Child is the only human rights treaty body with substantial existing humanitarian law jurisprudence. Various international humanitarian law instruments also contain provisions related to the protection of children, allowing for substantial overlap. In spite of several factors suggesting that the Convention on Rights of Child plays an important role in interpreting human rights law, others point in a different direction. Unlike the Civil and Political Covenant, there is no general derogation provision in the Children’s Convention. The Convention is thus not compelled to scrutinize States’ derogation of rights to ensure that such measures are not inconsistent with their other obligations under international law and is thereby deprived of a direct opportunity to address the relation between the Children’s Convention and humanitarian law. The Committee explicitly addresses humanitarian law in three of its eleven General Comments. In elaborating on Article 29(1)’s educational aims, it notes in General Comment 1 that “[t]he values embodied in Article 29(1) are . . . even more important for those living in situations of conflict or emergency.”[29]

Other International Instruments on Human Rights of Children

The Optional Protocol to the Convention on the Rights of the Child

(1) Sex Trafficking Protocol

The United Nations adopted this protocol to the Convention on Rights of Child on May 25, 2000, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography 2000 popularly known as Sex Trafficking Protocol. This Optional Protocol to the Convention on the Rights of the Child entered into force on 18 January 2002. India signed it on 15 November 2004 and ratified it on 16 August 2005.

This Protocol interalia provides for the following:[30]

(i)It provides for the offences of ‘sale of children’, ‘child prostitution’ and ‘child pornography’.

(ii)It sets standards for the treatment of violations under domestic law, including with regard to offenders, protection of victims and prevention efforts.

(iii)It also provides a framework for increased international cooperation in these areas, in particular for the prosecution of offenders.

The recent global threat to children is child prostitution and trafficking in children. This is handled in a more humanitarian perspective with the adoption of Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography in the year 2002. The Sex Trafficking Protocol[31] addresses the problem of sex trafficking, one among many purposes for which children are bought and sold, including, in addition, forced labor, adoption, participation in armed conflicts, marriage, and organ trade. 

(2) Worst Forms of Child Labour Convention 1999

The International Labour Organisation Convention[32] on the Worst Forms of Child Labour 1999 focuses on ending slavery, debt bondage, forced recruitment of children in armed conflict, prostitution, drug trafficking and any work harmful to the health, safety and morals of children. India is yet to become a party to this convention.

The “worst forms of child labour” comprise:[33]  (a) all forms of slavery or practices similar to it, such as the sale and trafficking of children and forced labor (including forced recruitment for armed conflict); (b) the use, procuring, or offering of a child for prostitution or for pornography or  pornographic performances; c) the use, procuring, or offering of a child for illicit activities such as drug trafficking; and (d) work that is likely to harm children’s health, safety, or morals.

(3) The European Convention Concerning the Custody of Children 1980

The European Convention on the Recognition and Enforcement of Decisions Concerning the Custody of Children[34] seeks to protect the rights of custody and access to children in the international context.  It calls upon the central authorities designated by States Parties to provide “free, prompt, non-bureaucratic assistance” in determining the whereabouts and restoring custody of an improperly removed child. They must also avoid prejudice to the interests of the child or of the applicant in restoring child custody, among other requirements.  Like the 1980 Convention, the Luxembourg Convention defines a child as being under the age of sixteen. Also, under both instruments, the right of action lies with the custody holder. The Luxembourg Convention uses the term “improper removal” to refer to “the removal of a child across an international frontier in breach of a decision relating to his custody” given in a State Party and enforceable in that State, in contrast to the 1980 Convention’s term “wrongful removal or retention” of a child and the CRC’s term “the illicit transfer and non-return of children abroad”.

Conclusion

The challenge is to continuously impart knowledge of human rights relating to children at the most formative stage of human development and keep that refurbish as an active knowledge for the betterment of the children. Among recent developments regarding children’s rights are an international call for action to end violence against children and a resolution adopted by the U.N. General Assembly on the establishment of a Human Rights Council.[35] The plethora of international instruments concerning the rights of children gives primary importance and paramount consideration for the welfare of child in a human rights perspective. All the principles enshrined under various treaty provisions of international law generalized the rights of child as human rights. From the viewpoint of international legal landscape, since the children could be treated as human beings in every means all the human rights must be accorded to them and their best interests shall be protected from a welfare perspective to facilitate the children in achieving full potential.