Implementing the U.N. Convention on the Rights of the Child: children's rights under the 1996 South African Constitution.

• Author: Spitz, Lauren M.

ABSTRACT

The United Nations Convention on the Rights of the Child, adopted by the General Assembly on November 20, 1989, articulates a comprehensive scheme of rights specifically tailored to children. International recognition of children's rights is only the first step, however. The effectiveness of the Convention on the Rights of the Child depends on the signatories" efforts to comply with its provisions and to incorporate children's rights into existing schemes of established rights. The 1996 Constitution of the Republic of South Africa includes specific rights for children resembling those articulated in the Convention on the Rights of the Child. Although South Africa has incorporated children's rights into its Constitution, there are still substantial numbers of children in South Africa who do not enjoy the protection that the Convention on the Rights of the Child demands. In this Note, the Author examines the experience of South Africa to illustrate that the constitutionalization of children's rights does not alone ensure that the rights of the Convention are accessible to children. The Author addresses the barriers to South Africa's compliance with the Convention on the Rights of the Child and offers possible solutions to them. The Author's conclusion is that implementation of the Convention on the Rights of the Child requires legislative reform and increased participation of community-based organizations, as well as constitutionalization of children's rights.

TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF CHILDREN'S RIGHTS: THE ROOTS OF THE CHILDREN'S CONVENTION A. Declaration of Geneva B. 1959 Declaration of the Rights of the Child C. Other United Nations Human Rights Instruments III. CONVENTION ON THE RIGHTS OF THE CHILD A. Origins and Background B. The Drafting Process C. Substantive Rights D. The Implementation Mechanism IV. CONSTITUTIONALIZATION OF CHILDREN'S RIGHTS: 1996 CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA A. Constitution Building B. Inclusion of Rights for Children C. Compliance With the Convention on the Rights of the Child 1. The Rights of Children in Police Custody 2. The Child's Right Not to Be Used in Armed Conflict and to Be Protected in Times of Armed Conflict V. EVALUATION AND RECOMMENDATION VI. CONCLUSION I. INTRODUCTION

On November 20, 1989, the United Nations General Assembly adopted, without a vote, the Convention on the Rights of the Child (hereinafter, Children's Convention). (1) The Children's Convention articulates a scheme of rights specifically tailored to children and is considered "the most rapidly and universally accepted human rights document in the history of international law."(2) By its tenth anniversary every nation had adopted the Children's Convention with the exception of the United States and Somalia(3) The true effectiveness of the Children's Convention, however, ultimately depends on the signatories' willingness to comply with its provisions and to incorporate children's rights into their constitutions and laws. (4)

Part II of this Note offers a brief historical background on the development of the international movement for children's rights and the protection children's rights enjoyed before the adoption of the Children's Convention. Part III explores the origins of the Children's Convention, describing the drafting process, the substantive rights it protects, and its mechanism for implementation. Part IV of this Note examines South Africa's incorporation of children's rights into its Constitution and national laws, and offers reasons why South Africa's constitutionalization of children's rights fails to satisfy the requirements of the Children's Convention. Finally, Part V evaluates the barriers to South Africa's compliance with the Children's Convention, but acknowledges the positive steps taken by South Africa to protect children's rights.

2. THE DEVELOPMENT OF CHILDREN'S RIGHTS: THE ROOTS OF THE CHILDREN'S CONVENTION

   The concept that a child is a subject of fundamental rights and liberties is relatively new. (5) Until the mid-nineteenth century, children were regarded as chattels and were commonly sold into slavery, shipped off to sea, or apprenticed at an early age by their parents or guardians. (6) The treatment of children improved as the status of children evolved from being considered as chattels to being valued as persons. (7) In the nineteenth century, as part of a general humanitarian reform movement, there were appreciable changes in the treatment of children, including the expansion of compulsory public school education, the establishment of orphanages and schools for the handicapped, and the removal of children from adult prisons. (8) The first international document recognizing the special status of children was the Geneva Declaration of the Rights of the Child (hereinafter, Declaration of Geneva), (9) adopted by the Fifth Assembly of the League of Nations in 1924. The Declaration of Geneva was drafted and approved by Save the Children International Union (S.C.I.U.), a nongovernmental organization established by Eglantyne Jebb to provide relief to children following World War I. (10) The Declaration of Geneva laid the foundation for the international movement for children's rights, and the roots of the Children's Convention can be traced to the Declaration of Geneva. (11)

   1. Declaration of Geneva

      Although there were a few early treaties designed to prohibit child labor and trafficking, the Declaration of Geneva was the first document that directed international attention to children's rights. (12) Adopted in 1924 by the Fifth Assembly of the League of Nations, the Declaration of Geneva was premised on the belief that "mankind owes to the child the best it has to give." (13) Accordingly, the Declaration of Geneva recognized five mandates for the care and protection of all children "beyond and above all considerations of race, nationality, or creed." (14) These mandates protected children's most basic material needs and recognized the essential conditions for fostering normal child development. (15) In addition, the Declaration of Geneva recognized affirmative children's rights, including the child's right to be "put in a position to earn a livelihood" and to be "brought up so that it will devote its talents to the service of its fellow men." (16)

      Although it represented an important step in the international movement for children's rights, the Declaration of Geneva had several major limitations. First, the Declaration of Geneva was concerned principally with children's "care and protection" rights and failed to address civil and political rights. (17) Second, the term "right" did not appear in the text. (18) It focused upon "acts which must be done to or for the child," providing that the child "must be 'fed,' 'nursed,' 'reclaimed,' 'sheltered,' and 'succored.'" (19) The Declaration of Geneva was "silent as to what the child is allowed to do." (20) Finally, the Declaration of Geneva failed to provide an implementation mechanism (21) because it was a document of a "moral and political nature" and was not considered legally binding. (22)

   2. 1959 Declaration of the Rights of the Child

      After World War II, the United Nations asked the International Union for Child Welfare to assist in the drafting of a newly revised Declaration of the Rights of the Child. (23) On November 20, 1959, the United Nations gave official recognition to children's rights by adopting the ten article Declaration of the Rights of the Child (hereinafter, 1959 Declaration). (24) The 1959 Declaration was inspired by the Declaration of Geneva and expanded on the mandates contained therein. (25) Like the Declaration of Geneva, the 1959 Declaration provided that the child should be the first to receive relief and protection; (26) the child should be protected from exploitation; (27) and the child must be given the means to develop in a healthy and normal manner. (28) The 1959 Declaration embraced the proposition of its predecessor, proclaiming in the preamble that "mankind owes to the child the best it has to give." (29) It further proceeded on the proposition that the child should "have a happy childhood and enjoy for his own good and for the good of society the rights and freedoms ... set forth." (30) With these propositions in mind, the 1959 Declaration commanded "parents, ... men and women as individuals, and ... voluntary organizations, local authorities and national Governments" to recognize the rights included therein and to strive for their observance. (31) Whereas the child's welfare was historically considered the responsibility of the family, the 1959 Declaration thereby recognized that the welfare of the child was the concern of the community and the State. (32)

      The 1959 Declaration embodied one international response to the dislocation, economic instability, discrimination, and maltreatment suffered by children during and after World War II. (33) Accordingly, Principle 1 of the 1959 Declaration mandated that every child, "without distinction or discrimination" of any type, was entitled to enjoy the rights set forth therein. (34) Similarly, Principle 10 protected the child from "practices which may foster racial, religious, and any other form of discrimination." (35) The 1959 Declaration also reflected international concern with the problem of child refugees, and Principle 3 confronted this problem by mandating that every child "shall be entitled from his birth to a name and nationality." (36) The 1959 Declaration's prohibition against discrimination and recognition of the child's right to a name and nationality from birth were the first steps in the international children's rights movement toward recognizing individual personality rights. (37)

      The 1959 Declaration also encompassed the achievements of the general humanitarian reform movement of the nineteenth century. Included in the 1959 Declaration were "principles" providing for special...