UNDER DIFFERENT HUMAN RIGHTS INSTRUMENTS By- Dr.Adv.V.V.Ratheeshkumar

PROTECTION OF CHILDREN UNDER DIFFERENT HUMAN RIGHTS INSTRUMENTS

Authored By- Dr.Adv.V.V.Ratheeshkumar

LEGAL ADVISOR –Kerala State Council For Child Welfare

INTRODUCTION

One of the most vulnerable groups among persons with disabilities are children. They are more vulnerable to wars, exploitation, malnutrition, physical and psychological ill-treatment, trafficking etc., and rely on adults for the enforcement of their human rights mechanisms have taken a significant interest in the protection of disabled children.

It was not until the late nineteenth century that nascent children’s rights’ protection movement countered the widely held view that children were mainly quasi-property and economic assets. In the United States, the Progressive movement challenged courts’ reluctance to interfere in family matters, promoted broad child welfare reforms, and was successful in having laws passed to regulate child labour and provide for compulsory education. It also raised awareness of children’s issues and established a juvenile court system. Another push for children’s rights occurred in the 1960s and 1970s, when children were viewed by some advocates as victims of discrimination or as an oppressed group. In the international context, “the growth of children’s rights in international and transnational law has been identified as a striking change in the post-war legal landscape.”[1]

INTERNATIONAL DOCUMENTS

DECLARATION OF THE RIGHTS OF THE CHILD, 1959

The U.N. Declaration of the Rights of the Child (DRC)[2] builds upon rights that had been set forth in a League of Nations Declaration of 1924. The Preamble notes that children need “special safeguards and care, including appropriate legal protection, before as well as after birth,” reiterates the 1924 Declaration’s pledge that “mankind owes to the child the best it has to give,” and specifically calls upon voluntary organizations and local authorities to strive for the observance of children’s rights.[3]

One of the key principles in the DRC is that a child is to enjoy “special protection” as well as “opportunities and facilities, by law and by other means,” for healthy and normal physical, mental, moral, spiritual, and social development “in conditions of freedom and dignity.” The “paramount consideration” in enacting laws for this purpose is “the best interests of the child,” a standard echoed throughout legal instruments on children’s rights. Among other DRC principles, a child is entitled to a name and nationality; to adequate nutrition, housing, recreation, and medical services; to an education; and, for the handicapped, to “special treatment, education and care.”[4] Other principles are on protection against neglect, cruelty and exploitation, trafficking, underage labour, and discrimination.

U.N. CONVENTION ON THE RIGHTS OF THE CHILD, 1989

The Convention on the Rights of the Child (CRC) is the most comprehensive document on the rights of children.[5] Based purely on the number of substantive rights it sets forth, as distinct from implementation measures, it is the longest U.N. human rights treaty in force and unusual in that it not only addresses the granting and implementation of rights in peacetime, but also the treatment of children in situations of armed conflict. The CRC is also significant because it enshrines, “for the first time in binding international law, the principles upon which adoption is based, viewed from the child’s perspective.”

The CRC is primarily concerned with four aspects of children’s rights (“the four ‘P’s”): participation by children in decisions affecting them; protection of children against discrimination and all forms of neglect and exploitation; prevention of harm to them; and provision of assistance to children for their basic needs.[6] For the purposes of the CRC, a child is defined as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” [7]

Key accomplishments of the CRC have been described as five-fold. It creates new rights for children under international law that previously had not existed, such as the child’s right to preserve his or her identity,[8] the rights of vulnerable children like refugees to special protection,[9] and indigenous children’s right to practice their culture.[10]

In some instances, this innovation takes the form of child-specific versions of existing rights, such as those in regard to freedom of expression[11] and the right to a fair trial.[12] In addition, the CRC enshrines in a global treaty rights that hitherto had only been found in case law under regional human rights treaties (e.g., children’s right to be heard in proceedings that affect them).[13] The CRC also replaced non-binding recommendations with binding standards (e.g., safeguards in adoption procedures and with regard to the rights of disabled children).[14] New obligations are imposed on States Parties in regard to the protection of children, in such areas as banning traditional practices prejudicial to children’s health and offering rehabilitative measures for victims of neglect, abuse, and exploitation.[15] Finally, the CRC sets forth an express ground obligating States Parties not to discriminate against children’s enjoyment of CRC rights.[16] The right to participate in proceedings, it is argued, “together with the principles of non-discrimination in Article 2 and provision for the child’s best interests in Article 3, form the guiding principles of the Convention, which reflect the vision of respect and autonomy which the drafters wished to create for all children.”

OPTIONAL PROTOCOLS TO THE CRC ON SEX TRAFFICKING, ARMED CONFLICT

The United Nations adopted two protocols to the CRC on May 25, 2000, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex Trafficking Protocol) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Child Soldiers Protocol). The Sex Trafficking Protocol[17] (STP) addresses the problem of sex trafficking, one among many purposes for which children are bought and sold, including, in addition, forced labour, adoption, participation in armed conflicts, marriage, and organ trade. The Preamble refers to achieving “the purposes of the CRC” and to the need for States Parties to implement specific provisions, among them CRC, Articles 34 and 35 on broad protections against child trafficking, sexual exploitation, and abuse. The Preamble also reflects CRC language in regard to protecting children from economic exploitation and performance of hazardous or harmful work.

In addition, it recognizes “that a number of particularly vulnerable groups, including girl children, are at greater risk of sexual exploitation” and are disproportionately represented among the sexually exploited, and expresses concern over “the growing availability of child pornography on the Internet and other evolving technologies.” The STP defines and prohibits the sale of children, child prostitution, and child pornography; obliges States Parties to make certain acts punishable under their criminal law; sets forth the bases for States Parties to assert jurisdiction over actionable practices, and strengthens their ability to pursue extradition of offenders.

The STP also provides for protection of and assistance to the victimized children in the criminal justice process, the best interests of the child being the guiding principle in the children’s judicial treatment. For purposes of prevention and redress of offenses, the victims must have access to procedures to seek compensation for damages from those legally responsible.[18] The STP also has provisions on strengthening international cooperation in regard to sex trafficking involving children and on reporting requirements for States Parties.[19]

UNDER DIFFERENT HUMAN RIGHTS INSTRUMENTS By- Dr.Adv.V.V.Ratheeshkumar

LAW JOURNAL

IMPORTANT LINKS

ETHICS & POLICY

UNDER DIFFERENT HUMAN RIGHTS INSTRUMENTS By- Dr.Adv.V.V.Ratheeshkumar

Citation