UNThe Convention on the Rights of the Child is an international treaty that seeks to set down the rights that all children enjoy  regardless of their colour, creed, race, ethnicity, political opinion, gender, gender identity, sexuality, nationality or legal status in the country. The CRC has been ratified by every state in the world, with the exception of Somalia and the United States. This means that states have freely agreed to be bound to respect, protect, promote and fulfil (where necessary) the rights of children as set down in the CRC. The CRC ostensibly represented a fundamental commitment to the recognition of the civil, political, economic, social and cultural rights of children. The ‘best interests of the child’ principle is now deemed to be the primary, if not paramount, consideration in all public and private actions which relate to children.  From the right of children to be heard (i.e. when decisions are made which will affect them)  to protections for asylum seeking and refugee children, the right to life,  freedom from torture and a right to a decent standard of living, the CRC seeks to provide a comprehensive declaration of the rights in respect of all children.  Factors such as a lack of government or societal support seem to have prevented full realisation of the rights of the child for now, twenty-four years on, the CRC continues to have profound impact on national and international legal systems. As Hammarberg argued, the CRC as a whole was at least instrumental in ensuring increased awareness of and respect for the ‘three Ps’: Provision for basic needs to ensure all children so as to ensure they can enjoy all the rights set down in the Convention; Protection from harmful act and practices, and, not least, Participation..[1]  Despite lingering concern that the conceptualisation of distinct rights for persons under eighteen might serve to separate ‘children’s rights’ from other, more general ‘human rights’,[2] the language of ‘children’s rights’ has nevertheless become ingrained within human rights discourses. Rather than undermining the rights of the child, such a development can arguably be viewed as emphasising the special regard which international human rights law ought to hold for all children.

 

Monitoring CRC Compliance

States sign and then ratify the Convention if they agree to be bound by the measures contained therein. Where states find part of the CRC objectionable, they can add a reservation or interpretative declaration to ratification. This reservation cannot undermine the object and purpose of the CRC (Article 18, Vienna Convention on the Law of Treaties).  The Committee on the Rights of the Child is responsible for “examining the progress made by States Parties in achieving the realization of the obligations” under the CRC (Article 43 of the Convention). It does this by examining reports of governments (see Ireland’s 2006 report here), the report from the Ombudsman for Children (see here) and civil society organisations (see here). It then issues Concluding Observations so as to highlight positive areas of State practice as regards the rights of the child, and areas where states law, policy or practice falls short of the minimum standards set down in the CRC. The most recent concluding observations on Ireland were issued in 2006, the last occasion that the Committee considered Ireland’s compliance with the CRC. (However, see also concluding comments on the optional protocol on children in armed conflict (2008))

 

What are General Comments and do they impose obligations on States?

Another way in which the Committee on the Rights of the Child contributes to the development of the rights of the child, is through the issuing of what are known as General Comments. These General Comments purport to set down the scope of states obligations on particular rights protected by the CRC. The precise legal effect of these general comments are disputed, with views ranging from such general comments being authoritative interpretations of state obligations under international human rights treaties, to being of little or no value at all to such views being ‘highly persuasive’.[3]

The Committee on the Rights of the Child has recently issued three new general comments recently:

 

General Comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health (Article. 24)

General Comment No. 16: On State obligations regarding the impact of the business sector on children’s rights

General Comment No. 17: The right of the child to rest, leisure, play, recreational activities, cultural life and the arts

 

Each of these three comments deal with either a specific article of the CRC or more thematic issues i.e. such as business and children’s rights. Over the coming week or so I will summarise each of these general comments in blog posts, examining the impact these general comments may have on children in Ireland.



[1] T Hammarberg, “The UN Convention on the Rights of the Child-and How to Make it Work” (1990) 12(1) Human Rights Quarterly 97.

[2] A Quennerstedt, “Children, But Not Really Humans: Critical Reflections on Hampering Effect of the “3P’s”” (2010) 18 International Journal of Children’s Rights 619..

[3] See generally, Evatt, E. “The Impact of International Human Rights on Domestic Law” in Huscroft, G. & Rishworth, P. (eds.) Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002) at p. 295; Sepúlveda, M. The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Oxford: Intersentia, 2003) at p. 37; Tomuschat, C. “Evolving Procedural Rules: The United Nations Human Rights Committee’s First Two Years of Dealing with Individual Communications” (1980) 1 Human Rights Law Journal 249  and O’Flaherty, M. “The Concluding Observations of the United Nationals Human Rights Treaty Bodies” (2006) 6(1) Human Rights Law Review 27.

 

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Written by Liam Thornton

Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. His particular research interests are on issues relating to the welfare state, human rights, socio-economic rights, Governmentality, immigration law and EU law. You can contact him at liam.thornton[at]ucd.ie or (+353) 1 716 4129.