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2. The human right approach to children’s wel-being. “Children in Developing Countries” Lecture course by Dr. Renata Serra. CRC. In 1989, the UN General Assembly adopts the Convention on the Rights of the Child
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2. The human right approach to children’s wel-being “Children in Developing Countries” Lecture course by Dr. Renata Serra
CRC • In 1989, the UN General Assembly adopts the Convention on the Rights of the Child • It has been ratified by 192 countries, only US (who has signed it) and Somalia have not done so • Ratification implementation • The CRC is only a starting point… • See CRC, art. 4
Historical key phases • 1924 Geneva Declaration on the Rights of the Child adopted by the League of Nations • 1959 Declaration on the Rights of the Child • Gave wide impetus to children’s rights (but bypassed civil and political rights and child empowerment) • In many ways it kept a welfarist approach • 1979 International Year of the Child • It pushed harder the concept that children have special rights differing from other human rights • 1989 is another marking point: fuller concept of rights • UNICEF and other agencies restructure their mandate to reflect a right-based approach
Other significant initiatives • Universal Declaration of Human Rights (1948) • Geneva Conventions (1949) ratified by 194 countries • On the conditions of the wounded and sick, prisoners of war, and civilians at times of war • The CRC was followed by: • ILO Convention against the worst forms of child labor • 2 Optional Protocols, dealing with ‘the involvement of children in armed conflict’ and ‘the sale of children, child prostitution and child pornography’ • The US ratified all these
The legal solution • Pros • Legal protection is the first step (‘the superiority of the law’) • Sanctioning children’s rights into law gives them full political recognition • Cons • Law has no effect if it is not enforced • There may be poor correlation between legal and effective provisions • However, the law must be a first step!
The right-based approach • Right-based vs. welfarist approach • Language of rights ≠ protection & dependence • See children in their own rights rather than extension of parents • “Children have rights to…” ≠ “adults must protect children from…” • ‘Rights’ set up a standard, a goal, which need to be constantly approached and worked for • Contrast with the critique that it is pointless or even counter-productive to set up as rights things that are unattainable
In the words of the CRC • Non-discrimination (art. 2) • The principle of the best interests of the child (art. 3) • Non separation from parents unless it is in the best interest of the child (art. 9) • The fundamental rights • To life (‘inherent right to life’ art. 6) • To a name, to a nationality and as far as possible to know, and be cared for by, his or her parents (art. 7) • To express views freely in matters re: oneself (art. 12) • To freedom of expression (art. 13) • To freedom of thought, conscience and religion (art.14) • To freedom of association (art. 15)
The fundamental rights (cont’d) • To legal protection against interference with privacy (art. 16) • Of the disabled child to special care (art. 23) • To the enjoyment of the highest attainable standard of health (art. 24) • To benefit from social security (art. 26) • To an adequate standard of living (art. 27) • To education (art. 28) • Of minority or indigenous group child, to enjoy her own culture, use her own language (art. 30) • To be protected from economic exploitation and hazardous work (art. 32)
Obligations and protection • State parties have the obligations to: • Combat the illicit transfer and non-return of children abroad (art. 11) • Protect and care for a child deprived of her physical environment (art. 20) • Provide humanitarian assistance to the refugee child (art. 21) • Provide appropriate health care (art. 24) • Provide material assistance and support programs w.r.t. nutrition, clothing and housing (art. 27) • Make primary education available free to all (art. 28) • Promote physical and psychological recovery and social reintegration of the child victim of neglect, exploitation or abuse (art. 39)
Protection (cont’d) • State parties must protect the child from: • All forms of physical and mental violence (art. 19) • Illicit use of narcotic drugs (art. 33) • All forms of sexual exploitation and abuse (art. 34) • Torture and other cruel, inhuman or degrading treatment (art. 37) [no capital punishment or life imprisonment for crimes committed by minors] • State parties must ensure no child younger than 15 is recruited in the armed forces or takes direct part in hostilities (art. 38)
Towards implementation • Regional-level bodies have not incorporated CRC adequately into their legal instruments • E.g. in the Americas, pre-CRC approach to children’s rights prevails • Many courts have not made full use of CRC provisions in their pronouncements • Many state constitutions do not include children’s rights • If they do, political rights are often omitted as well as the rights of refugee and indigenous children • The most advanced constitutions re: children’s rights are Brazil, Ecuador, Ethiopia, South Africa,
A case study of use of CRC • 5 Guatemalan street children tortured and killed by police • Case brought in front of the Inter-American Court against the Gov. of Guatemala and won in 1999 • Court declared that GoG violated the rights of these street children as in art. 2,3,6,20,27&37 of the CRC and failed them doubly • GoG asked for reparation and damage, plus obligations to fully investigate and punish those responsible • This case shows the use of CRC in court cases against states that have ratified CRC • Previously the I-A Court had ruled that CRC should override outdated approaches allowing courts to unleash punishment to children in ‘irregular situation’