Johan D. Van Der Vyver, Municipal Legal Obligations of States Parties to the Convention on the Rights of the Child: the South African Model

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

MUNICIPAL LEGAL OBLIGATIONS OF STATES PARTIES TO THE CONVENTION ON THE RIGHTS OF THE CHILD: THE SOUTH AFRICAN MODEL

Johan D. van der Vyver^*

The Convention on the Rights of the Child (CRC)¹places all kinds of obligations on States Parties to ensure its effective implementation at the municipal level. States Parties must recognize the inherent right to life of every child and ensure "to the maximum extent possible" the survival and development of the child;²implement the right of a child to a name and a nationality from birth;³combat the illicit transfer and non-return of children from abroad;⁴respect the right of the child to freedom of thought, conscience, and religion;⁵ensure the access of children to information;⁶protect the child against all forms of injury, physical violence, abuse, neglect, negligent treatment, maltreatment, exploitation,⁷economic exploitation,⁸and all forms of sexual abuse;⁹secure access of all children to health care services¹⁰and a standard of living adequate for the child's physical, mental, spiritual, moral, and social development;¹¹provide compulsory primary education free of charge to all children and make secondary education available on the basis of capacity;¹²and much more. The CRC proclaims, most importantly, that "the best interests of the child shall be a primary consideration."¹³

The Republic of South Africa ratified the CRC without reservations on June 30, 1995.¹⁴By that time, South Africa had already included in its interim constitution of 1993 a section on children's rights,¹⁵which the current Constitution incorporated and elaborated upon. South Africa's Constitution now provides:

(1) Every child has the right-

(a) to a name and a nationality from birth;

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that-

(i) are inappropriate for a person of that child's age; or

(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35,¹⁶the child may be detained only for the shortest appropriate period of time, and has the right to be- (i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child's age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child's best interests are of paramount importance in every matter concerning the child.

(3) In this section "child" means a person under the age of 18 years.¹⁷

The Constitution deals separately with the right to education, health care, and other rights that have special importance for children. As far as education is concerned, it proclaims the right of "everyone" to basic education, including basic adult education, and places a burden on the State to make further education "progressively available and accessible."¹⁸It is interesting to note that while the State's obligation to secure the right of "everyone" to health care services, sufficient food and water, and social security was made subject to progressive implementation "within its available resources,"¹⁹the right of a child to "basic nutrition, shelter, basic health care services and social services" is couched in the language of immediately enforceable rights.²⁰

These constitutional provisions are amplified by the Child Care Act of

1983²¹and the Children's Status Act of 1987.²²The Children's Bill, proposing to consolidate and expand the laws dealing specifically with children, is currently before the South African Parliament.²³When enacted, this bill will, among other things, reduce the age of majority from 21 to 18 years.²⁴

The South African legislation, taken as a whole, contains perhaps as good a summary of the substantive clauses in the CRC as exists today in the laws of any nation. However, the practical realization of the CRC's substantive provisions is not without difficulties. For the purposes of this survey, this Essay highlights some difficulties pertaining to three distinct areas of the law: (a) the norm against discrimination, (b) the religious right of the child, and (c) the question of juvenile justice. These issues have also been selected to highlight some of the obstacles that may preclude ratification of the CRC by the United States of America. In the final section, this Essay considers means and mechanisms for the enforcement of children's rights.

I. EQUAL PROTECTION AND NON-DISCRIMINATION

The CRC, at the outset, instructs States Parties to "respect and ensure" the rights set forth in the Convention to each child "without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."²⁵

Several States Parties experienced problems with the generality of this non- discrimination decree and specified reservations to this provision. For example, reservations entered by the Bahamas and Cook Islands were based on fears that the provision might imply the conferment of nationality of those countries upon children who do not otherwise qualify for citizenship.²⁶

Belgium also entered a declaration stating that non-discrimination on grounds of national origin must not be taken to imply "the obligation for States automatically to guarantee foreigners the same rights as their nationals."²⁷

Perhaps more telling were declarations and reservations attached to the instruments of ratification of a large number of Muslim States, mostly couched in general and sweeping terms seeking to exclude the binding effects of all provisions in the CRC that are "incompatible with the laws of Islamic

Shari'a."²⁸Several European countries, including Austria, Denmark, Finland,

Germany, Ireland, Italy, The Netherlands, Norway, Portugal, Slovakia, and Sweden, lodged objections to some or all of these reservations because they were either too general or in violation of Article 19 of the Vienna Convention on the Law of Treaties, which precludes reservations "incompatible with the object and purpose of the treaty."²⁹

The Syrian Arab Republic was slightly more specific in drafting its reservations to CRC provisions. Syria protested those provisions "which are not in conformity with the Syrian Arab legislations and with the principles of Islamic Shari'a, in particular the content of article (14) related to the Right of the Child to the freedom of religion, and articles 20 and 21 concerning adoption."³⁰On September 21, 1994, Germany, among others, objected to the reservation "owing to its indefinite nature,"³¹and Syria subsequently deposited a communication with the Secretary-General of the United Nations explaining its reservation in more detail: Syrian law does not recognize the system of adoption, and its reservation to Articles 20 and 21 means "that approval of the Convention should not in any way be interpreted as recognizing or permitting the system of adoption to which reference is made in these two articles."³²

Syria further explained that its reservation to Article 14 of the Convention applies only to "religion and [does] not concern those relating to thought or conscience."³³

For the most part, however, one is left in the dark by the declarations and reservations of predominantly Muslim States as to the impact of Islamic law on specific provisions regulating the different rights of the child, including the principle of non-discrimination, which is fundamental to the protection of all rights recognized by the CRC.

The principle of non-discrimination may especially be implicated in pluralistic societies that include diverse ethnic populations. Canada entered a reservation to Article 21 (dealing with adoptions) to fully accommodate "customary forms of care among aboriginal peoples in Canada."³⁴Canada also entered an understanding interpreting its obligation to take legislative, administrative, and other measures to implement the rights enunciated in the CRC as conditioned by the right to self-determination of ethnic, religious, or linguistic minorities "or persons of indigenous origin" as regulated in Article

30.³⁵Pluralistic arrangements to accommodate indigenous laws and practices of Aborigines probably also prompted a reservation by New Zealand "to continue to distinguish as it considers appropriate in its law and practice between persons according to the nature of their authority to be in New Zealand."³⁶South Africa, in contrast, did not enter any reservations, understandings, or declarations.³⁷

International law proceeds on the presupposition that a child's interests are best served within a family environment and under parental care and control. Admittedly, domestic practices within the family circle are based to a large extent on traditions determined by ethnic or religious association. That, too, must be respected by the repositories of political power. A salient principle of contemporary international law thus proclaims the right to self-determination of peoples; and "peoples"-the beneficiaries of this right-have been identified as ethnic, religious, or linguistic minorities within a political society.³⁸

Article 30 of the CRC affords children the right to self-determination as defined in contemporary international law. It provides:

In those...