Committee on the CRC has identified four General Principles:

• (i) Right to non-discrimination

• (ii) Right to life and development

• (iii) Right to be heard and taken seriously (Article 12)

• (iv) Primary consideration of the child’s best interests (Article 3)

UN CRC Optional Protocol

(Communication Procedure)

Recognising that children’s special and dependent status may create real difficulties for them in pursuing remedies for violations of their rights

• Three means of enforcement: (i) Enquiry procedure (wide spread abuse); (ii) Inter-state communications; (iii) Individual communication

Article 5 (Individual communications):

• 1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party…

• 2. Where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent

Note: Only 41 parties have also signed the OP to allow individual petitions

FOCUS on:

• (1) The UNCRC (structure and theoretically underpinnings)

• (2) Notion of “best interests” (meaning and role)

• (3) Article 12 participation (meaning and role)

• (4) Enforcement (directly and indirectly, internationally and domestically)

(1) The UNCRC

• Moral authority — most ratified treaty in the world — embodiment of global consensus of the notion that children have rights, and that there are distinctive interests in childhood that require specific attention

• General Principles: (i) Articles 3 (best interests); (ii) Article 12 (participation); (iii) Article 2 (non-discrimination) and (iv) Article 6 (right to life)

  • Committee: General principle capture the fundamental meaning of the CRC (ie. interpretive principles for the CRC) but are written into the UNCRC itself

Tensions — concept versus conceptions of childhood

• CRC has a concept of childhood (as a distinct time, with distinct rights attached to it)

  • HOWEVER: does not resolve competing conceptions in different member states (childhood as ending at 18 years old, “or as otherwise specified by national law”)

    • Perhaps inevitable (ie. price paid for near-universal ratification) however means that it employs vagueness to disguise tensions that could not be resolved during drafting process — part. in relation to autonomy of children versus duty on State to respect parents’ rights

(4) Enforcement

• (a) Primary enforcement mechanism — country reports

  • Inherently problematic — ambiguities exploited by governments during reporting process

  • Importance of civil society — Committee reliance on civil society to dispel the narratives coming from national governments

• (b) Communications mechanism (Optional Protocol)

*Freeman

2016

Children’s Rights as Human Rights

(1) Law as a significant symbol of legitimacy – when enacted, it is an accomplished fact — can change attitudes and behaviour

(2) UNCRC constructed the child, for the first time, as a “principal” (ie. subject in their own right) rather than a concern or an object of intervention (cf. “conventional deficit model” — children only as “objects of concern”)

• Rights concerning: protective measures; civil status; development and welfare; and children in specific circumstances

• Cluster of participation rights — centred on the normative value of autonomy (persons have a set of capacities that enables them to make independent decisions regarding appropriate life choices)

  • “To believe in autonomy is to believe that everyone’s autonomy is as morally significant as anyone else’s. To respect a child’s autonomy is to treat that child as a person, and as a rights-holder”

(3) HOWEVER: To recognise that children’s rights are human rights, and thus to recognise that children are humans, does not mean that we have to overlook the fact that they are also children and thus vulnerable

(4) HOWEVER: UNCRC should be seen as “the beginning rather than the final word on children’s rights”

• (i) Scope too narrow – too little attention on girl child, gay children, indigenous children and citizenship rights

• (ii) Enforcement procedures too weak

Williamson case: Christian parents alleged violation of rights by legislation removing liberty from schools to inflict corporal punishment on children

• Dispute conceived as one between State (its right to ban corporal chastisement) and parents

  • Children’s’ views neither known nor sought

• Baroness Hale: “This is, and always has been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here…to speak on behalf of the children. The battle has been fought on ground selected by the adults.”