The United Nations Convention on the Rights of the Child and the Realisation of the Human Rights of Children

January 11, 2016
The United Nations Convention on the Rights of the Child and the Realisation of the Human Rights of Children
Ally Dunhill
Ally Dunhill Non-Resident Fellow in Rights Education

On November 20, 1989, the Convention on the Rights of the Child  was formally adopted by the United Nations General Assembly. It is the most widely ratified international human rights convention in the world with 196 states parties (only the USA has not ratified the Convention). This indicates that there is a shared international understanding that children have rights and that the state, along with parents, professionals and other adults have a responsibility to uphold those rights.  But looking at the circumstances facing children across the world, in particular in conflict zones, it appears much more work needs to be done before the ideas and practices of the Convention are realised in practice.

When states sign the Convention, they are demonstrating an agreement ‘in principle’, but there are no assurances that the provisions detailed within the Convention will be incorporated into each country’s national laws. In regards to the Convention, that is accomplished by Ratification.  By ratifying the Convention, governments across the world demonstrate their intentions to meet the terms within the statements of the Convention, uphold the rights of children and use the Convention to consider and incorporate the rights of children in policymaking and ensuring implementation of these rights in the lived experiences of children.   The Convention is relatively unique among the international human rights treaties in the willingness of states to sign and quickly ratify the document, but questions can be asked about the extent to which the Convention adequately influences policymaking.

The Convention was developed from the Geneva Declaration of the Rights of the Child (1924)  which was adopted by the League of Nations, and the Declaration of the Rights of the Child (1959)  which was adopted by the United Nations. After the United Nations was established in 1945 some governments were calling for a mandatory children’s rights treaty. Although the Declaration of the Rights of the Child (1959) was highly ambitious at that time, it was not mandatory.  The idea of a legally binding, mandatory treaty to uphold the rights of children grew stronger and stronger through the 1960s and 1970s. Many activists for the human rights of children, and certain governments, pressed on with the conviction that there should be a worldwide, legal agreement for ensuring the promotion and protection for the human rights of children. In 1996, the United Nations, General Assembly agreed that further considerations were required by governments to promote, support and uphold the rights of children. They agreed that 1979 was to be the International Year of the Child. This year was chosen as it was the 20th anniversary of the Declaration of the Rights of the Child, (1959).

On the 30th anniversary of the Declaration of the Rights of the Child, November 20, 1989, the Convention on the Rights of the Child was adopted by the United Nations General Assembly. The document became available for signature on January 26, 1990. Ghana was the first country to sign and ratify the treaty. The Convention received quick support. Within the first year, the Convention was ratified by 67 states, and within two years, 105 states had ratified the Convention.

The Convention provides a set of universal rights for all children. It provides a comprehensive framework that governments can use to assess the impact of their policies and practices relating to the human rights of children and the lived experiences of children. The Convention contains 54 articles. The substantial articles, 1 to 41 explicitly identify and explain the rights of children. Articles 42 to 54 relate to how the Convention should be applied by governments and monitored by the designated treaty body, the Committee on the Rights of the Child. Substantive articles, 1 to 41, are based around a set of guiding principles for the Convention. There are five guiding principles which are crucial to the interpretation, dissemination, contextualisation, and implementation of the Convention. They are:

  • Definition of a child (Article 1): defines a child as a person under the age of 18, unless the laws of a particular government have a younger legal age for adulthood.
  • Non- discrimination (Article 2): explains that the Convention applies to all children, whatever their race, religion, abilities or family background.
  • Best interests of the child (Article 3): states that all adults should do what is best for children, the best interest of the child must be the first and most important consideration for adults when making decisions that affect children.
  • Right to life, survival and development (Article 6): states that all children have the right to live and that governments should, as far as possible, ensure children live and develop healthily.
  • Respect for the views of the child (Article 12): encourages adults to listen to the opinions of all children and involve them in any decisions that affect them. It explains that children’s ability to express their opinion must be appropriate to their level of maturity. It also explains that children have the right to voice their opinions and be listened to but does not give children authority over adults.

There is no order in which children’s rights should be upheld or promoted. There is no right that is more valuable or special than the other. All rights have equal importance.  Many of the articles are closely linked. For example, Article 42 states governments should ensure adults and children are aware of the Convention and that adults should support all children to learn about their rights. Article 4 states that governments must do all it can to ensure children’s rights are respected, protected and fulfilled.

The Convention does not remove parental rights and responsibilities. The protection of children’s rights is a continuous process.  The Convention describes a ‘child’ as a human being between the ages of 0 – 18 years old. This requires children’s rights to be interpreted, supported and applied differently depending on the age and understanding of the child. Children have different lived experiences, needs and understandings depending on their age and ability.  For example, Article 12 and one of the five guiding principles, gives a voice to the child. Children of diverse ages and abilities require different opportunities to be heard.   Furthermore, as the Chairperson of the Committee explained in 2014 at the 25th Anniversary of the Convention, the rights of children are dynamic:

“From infancy, children learn to communicate by being communicated with, and will learn to interact with others based on how they are interacted with. Making children feel that their ideas are immature or unrealistic leaves them feeling unwelcome and more likely to disengage. Children are valuable members of our societies as children and must be engaged with, according to their evolving capacities, throughout their childhood and adolescence, if they are to later contribute positively to their communities when they are adults.”

After each government has ratified the Convention, it has to write an initial report outlining how it is satisfying its human rights obligations in relation to the implementation.  The reports should be completed within 2 years of ratification. A Periodic Report is then required by the United Nations Committee on the Rights of the Child every 5 years approximately. The role of this Committee is to monitor implementation of the Convention and the Optional Protocols. To do this the Committee examines every government’s Initial Report and Periodic Report, identifying concerns and making recommendations to each government.

In addition to the main Convention, there are Optional Protocols. These enhance and further strengthen the Convention. They are ‘optional’ because they were not explicit when governments originally signed and ratified the Convention, they address a new and emergent violation of children’s rights or they require further actions than the original 54 articles.   Optional Protocols are treaties in their own right and are open for signature and ratification by all governments who have signed and ratified the Convention.

The Optional Protocols have emerged from recent concerns regarding the abuse and violation of children across the world.  Three Optional Protocols have been adopted by the United Nations General Assembly since 2000. These are:

  • Protecting children in armed conflict- governments who have ratified this protocol, are expected to “take all feasible measures” to ensure there are no children under the age of 18 taking part in hostilities.
  • Protecting children from commercial sexual exploitation – governments who have ratified this protocol, are expected to do all in its power to end the sexual exploitation, abuse and sale of children. Governments are also expected to raise public awareness of this as a violation of children’s rights and co-operate internationally to act in the best interest of the child and end these abuses.
  • Allowing children to submit complaints, appeals and petitions – children from countries whose governments have who have ratified this protocol, can present a case where the child’s rights have been violated, to the Committee on the Rights of the Child, if the country the child is resident in has not been able to resolve the violation.

The Convention on the Rights of the Child has been successful in furthering the recognition of the importance of the human rights of children and young people.  With all states in the world, with the exception of the USA, signing up to the Convention, it shows a commitment to promoting and protecting the rights of children.  At the same time, the continuing work of the Committee on the Rights of the Child and the Human Rights Council demonstrates, it is clear that much more needs to be done to further support the realisation of human rights as part of the lived experiences of children.

Two of the three Optional Protocols that have been adopted highlight particular situations where children are highly vulnerable and lack adequate protection requiring international cooperation.  Also we can see in the various General Comments adopted by the Committee on the Rights of Child where adequate protection is lacking.   The Committee has adopted comments setting out the obligations of states in areas such as, but not limited to, freedom from violence, juvenile justice, children with disabilities, health, education, and public spending.  In addition to the work of the Committee, the Human Rights Council has, since 2008, attempted to integrate the rights of children into its work.  This has resulted in a number of thematic discussions covering areas such as violence against children, access to justice, recognition before the law, ending child marriage and ensuring adequate investment by states for the realisation of the rights of children.   On the issue of investing in the rights of children, the UN High Commissioner on Human Rights has been very blunt is what is necessary,

“A lack of sufficient, effective, inclusive and efficient public spending on children

is one of the main barriers to the realization of the rights of the child. Relevant policy and legislative commitments remain empty promises unless Governments generate and equitably allocate adequate resources for their implementation in their local and national budgets, and ensure effective and efficient use of resources.”

Spending alone will not overcome the barriers facing children and the realisation of their human rights.  We also need to address the further education of society and governments to realise that investing in the rights of children today, rather than seeing children and young people as only objects to be managed, will provide all societies with a global, humanitarian outlook and economically sustainable future. Giving children a deeper understanding of their human rights will inspire them to support the human rights of others.  This contributes to the dynamics underlying the human rights of children, as children develop an understanding of rights that carries on into adolescence and adulthood. This will give a better understanding of the connexion between human rights, society and the wider world and will further contribute to global economic growth and international peace and security.