This chapter of the manual focuses on children’s rights and the contribution that can be made by a human rights field operation, and individual human rights officers, to their respect, fulfilment, promotion and protection. Special attention is given here to children because:
l of the particular vulnerability of children;
l some children’s rights are different from those accorded to adults;
l some children’s rights may need to be respected, fulfilled or protected in different ways from more general human rights; and
l in many situations in which human rights officers may operate, such as internally displaced persons camps, children often make up over 50% of the population.
A. Why do children have a set of human rights specific to them?
1. The general thrust behind national and international action on behalf of children is the moral and legal recognition of their emotional, physical and psychological vulnerability, their need for special care, and recognition of the obligation to respect and ensure respect for their rights, including having their views respected.
These concerns reflect the value that society places on childhood for its own sake, not as a training ground for adulthood. Simultaneously we must recognize that events in childhood will affect the individual as an adult, and consequently society as a whole.
The international community has recognized the need for standards beyond those defined by the international bill of human rights to address specific classes of injustice and the status of entire groups of persons, and it has acknowledged the need for programmatic tools to address the special needs of vulnerable communities. In the case of children, the Convention on the Rights of the Child(CRC) is the main legal instrument of an increasing body of international law specific to them.
1. Children are the subjects of rights
2. A key concept of the CRC is that children — as individuals — have rights, and these must be enumerated, legally binding, and made specific to the evolving development of the child.
2. Children can be affected differently from adults by the same violations
3. Children benefit from almost all of the same human rights that are accorded to adults. Interruptions to children’s development have the potential to affect them far more seriously than adults. An adult who lives through a situation of armed conflict, who is displaced from his home, who is unable to gain steady employment, and who suffers from malnutrition and ill-treatment over a period of 4 years, may be expected to continue his life in a normal manner at the end of the displacement and its causes. A child living through the same situation: may suffer permanently from stunted growth and mental development as a result of malnutrition and ill-treatment, and without access to a school during the displacement may never again be able to recover the lost opportunity for education and thus be deprived of many opportunities in the future. It is clear that the same threats to the same human rights of adults can affect children differently. It follows that children require different types of human rights protection and promotion.
3. The rights of children as individuals are closely linked to the rights of other persons
4. The majority of human rights accorded to adults are assessed on the basis of the rights and obligations of the individual. While recognizing and indeed emphasizing that children as individuals are the subjects of rights, one should note also that children’s rights are closely linked to the rights of other persons of significance to them. In broad terms, this happens in two ways:
v The link between children and adults: Many human rights protections for adults are based around the concept of ensuring that an adult has the opportunity to take decisions that will affect him/her or has the opportunity to represent his/her views.
Refugee law, for example, provides that every person has the right to return to his or her country; however, the capacity to exercise that right depends on the refugee having all the relevant information and understanding required to make a good decision. A baby clearly cannot make such decisions and is dependent on older persons. Older children have varying capacities to make decisions according to their individual personalities and according to their age, and are also dependent upon adults for the protection of their rights, albeit to varying extents. Thus, the protection of the human rights of children often gives a major role to an adult — usually a child’s parents or other legal guardian. By extension, the effective protection and promotion of a child’s rights can often be closely linked to the effective protection and promotion of the rights of those adults upon whom a child
is dependent. For example, when an adult refugee who has responsibility for 3 children is arbitrarily detained, the rights of the 3 children may well be violated as a direct consequence of the violation of the adult’s rights.
v The rights of parents or other legal guardians: While children benefit from numerous rights, these are accompanied by the rights of parents, or a child’s other legal guardians, which can include a significant role for these persons in deciding what is in the child’s best interests. One should be able to respect a child’s rights and advance his/her best interests without infringing on the rights of adults. In strict legal terms, the rights of parents and other guardians over children are limited to the best interests of the child.
4. Children’s vulnerability
5. According to their age, children may be less able to protect themselves from violations of their rights, or even to take advantage of forms of protection that may be available. In addition, particular situations or circumstances can be more dangerous for children than for adults; indeed, some violations are faced only by children. Paedophilia and the use of children in pornography, for example, are acts specific to children.
Female genital mutilation is typically performed on girls whose young age prevents their opinions from being taken into consideration in decisions as to whether or not such procedures should be performed. Children in certain situations may find themselves criminalized, even though they have committed no crime. This is sometimes the case, for example, for children living on city streets or in railway stations.
6. There are a number of factors which can be said to greatly increase the vulnerability of most children to additional abuses of their rights. These include poor access to education; poor access to health care; situations of armed conflict in the region in which a child lives; population displacement; family break-up; and severe poverty. In particular, one should note that it is often a combination or sequence of different factors which create the most vulnerability; for example, a combination of poor education and population displacement can be factors which aggravate the spread of HIV/AIDS, which in turn contributes to family break-up (where parents fall ill and die) and severe child poverty.
7. Some threats to children’s rights might be more likely to affect girls rather than boys, or vice versa. For example, boys are more likely to be recruited as child soldiers, while girls are more likely to be the victims of sexual exploitation by soldiers or armed opposition groups. Girls are more likely to be the victims of forced early marriages.
However, it is important to be cautious when categorizing risks by gender — girls can also be forcibly recruited as soldiers and boys can also be the victims of sexual exploitation, for example.
B. The protection of children under international human rights and humanitarian law
8. As described above, children benefit from a wide range of human rights instruments and provisions. Many of these are the same as the human rights protections available to adults. Others, however, are specific to children. The Convention on the Rights of the Child provides the single, most comprehensive human rights protection instruments for children. Other international legal instruments provide complementary protection, some of which are specific to issues — such as juvenile justice, adoption and exploitation — or to situations — such as the use of children in armed conflicts. International instruments are sometimes supported by the existence of regional instruments; and regional instruments sometimes set higher standards than international treaties.
9. Many of the relevant legal instruments are described in detail in Part Two, Chapter III of this manual, “Applicable International Human Rights and Humanitarian Law: The Framework”, and readers should also extensively draw information from Chapter III when working on children’s rights. The present section focuses only on legal instruments of specific relevance to children and notably on the Convention on the Rights of the Child.
1. The Convention on the Rights of the Child
10. The human rights of children are most concisely and fully articulated in one international human rights treaty: the Convention on the Rights of the Child.
v The Convention is the most widely ratified human rights instrument in history.1 v The Convention is the first legally binding international instrument to incorporate
such a broad range of human rights — civil and political rights as well as economic, social and cultural rights.
v The Convention is the only human rights treaty to incorporate aspects of international humanitarian law.2
11. The entry into force of the UN Convention on the Rights of the Child on 2 September 1990 marked the culmination of nearly 70 years of efforts designed to ensure that the international community give proper recognition to the special needs and vulnerability of children as human beings.
1As of October 2000 the Convention had been ratified by every State in the world with the exception of two.
2The following comments within Part C.1 on the Convention are excerpts from an introduction prepared for Defence for Children International (DCI) as Part 1 of the DCI Kit of international standards concerning the rights of the child.