Jaap E. Doek, What Does the Children's Convention Require?

• Citation: Vol. 20 No. 1
• Publication year: 2006

WHAT DOES THE CHILDREN'S CONVENTION REQUIRE?

Jaap E. Doek^*

INTRODUCTION

The question "What does the Children's Convention require?" can be answered in different ways. One way is to focus on the reporting obligation of a State Party to the United Nations Convention on the Rights of the Child (CRC), the related monitoring activities of the U.N. Committee on the Rights of the Child (CRC Committee), and the follow-up States Parties should give to the recommendations issued by the CRC Committee after it has reviewed and discussed the State Party's report.

Another answer may focus on the actions required from the States Parties for the implementation of the CRC and a discussion of the substantive requirements.¹In the limits of this contribution, I prefer to elaborate on the latter answer because it will allow me to also pay attention to misunderstandings regarding the meaning of the CRC concerning the position of parents and the family.

I. THE CHILD IS A RIGHTS-HOLDER

The most fundamental requirement for the implementation of the CRC is that the child is recognized and fully respected as a human being with rights. The CRC contains a wide variety of rights and is, in fact, the most comprehensive human rights treaty. States Parties have no problems recognizing and ensuring that the rights of the child are protected, for example, against all forms of exploitation, abuse, and neglect. But the child is more than an object of care and protection. The CRC contains not only traditional economic, social, and cultural rights, such as the right to the highest attainable standard of health,²the right to education,³the right to social security,⁴and the right to an adequate standard of living,⁵but also the civil and political rights such as the right to life,⁶including the prohibition of the death penalty for crimes committed by children under eighteen years old,⁷the right to freedom of expression,⁸the right to freedom of thought, conscience, and religion,⁹the right to freedom of association and to peaceful assembly,¹⁰and the right to protection of privacy, family, home, and correspondence.¹¹

Some opponents of the CRC expressed concerns that civil and political rights promote an independency or autonomy that is not in the interest of the child. But, out of the 192 States Parties to the CRC, more than 150, including the United States, have ratified the ICCPR. The rights enshrined in Articles

13-16 of the CRC can also be found in the ICCPR in articles that use terms such as "everyone" or "no one."¹²There are no articles in the ICCPR stating that "everyone" does not include persons below the age of eighteen. Additionally, the United States, when ratifying the ICCPR, made no reservations indicating the rights guaranteed in the ICCPR cannot be enjoyed by persons under the age of eighteen. Finally, let me also note that Paragraph

2 of Article 14 of the CRC on the right of the child to freedom of thought, conscience, and religion clearly requires that "States Parties shall respect the rights and duties of parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child."¹³

But, let me get back to the recognition of the child as a rights-holder. In this regard, Article 12 is one of the key provisions of the CRC that can not only be used as a benchmark, an indicator of the degree to which a State Party recognizes a child as a rights-holder, but that also lays the foundation for the implementation of Articles 13-16 of the CRC (and many others).¹⁴This article recognizes the right of the child to express his or her views and to have them taken into account in all matters affecting the child, which includes in particular the right "to be heard in any judicial and administrative proceeding."¹⁵

This article means among other things that the implementation of the CRC is a process in which children should be involved by providing them with an opportunity to express their views freely. Equally important is that their views are taken into account and given due weight in accordance with their age and maturity. An important consequence of fully respecting these rights will be the development of children who will build self-esteem and acquire knowledge and skills such as those for conflict resolution, decision-making, and communication to meet the challenges of life. This knowledge and skill set will also be important for the exercise of their rights (e.g., those enshrined in Articles 13-16 of the CRC) in accordance with their evolving capacities. The importance of these rights has been confirmed in the International Plan of Action, A World Fit for Children, adopted unanimously by the General Assembly of the United Nations in May 2002, by making "[l]isten[ing] to children and ensur[ing] their participation" one of the principles and objectives of the United Nations.¹⁶"The energy and creativity of children and young people must be nurtured so that they can actively take part in shaping their environment, their societies and the world they will inherit."¹⁷

In its most recent General Comment on Implementing Children's Rights in Early Childhood, the CRC Committee emphasized that Article 12 of the CRC applies both to younger and to older children.¹⁸As holders of rights, even the youngest children are entitled to express their views which should be given due weight in accordance with the age...