Creating new futures for all children: the promise of international human rights law.

• Author: Lee, Yanghee
• Position: Creating New Futures for All: International Law and the Protection of Migrant Children at Risk

Abstract

This address focuses on the intersection of a series of difficult issues in the area of human rights: childhood, youth, disability, and situations of forced migration. A brief historical background to the efforts made by the international community in setting norms and standards to create a new future for all children. Two very important international instruments, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities are discussed. References are made to UN Committee on the Rights of the Child's outcome recommendations regarding children and their rights in the context of migration. The address concludes with an introduction to the newly adopted Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

I Introduction

The focus of this short address is the intersection of a series of difficult issues in the area of human rights: childhood, youth, disability, and situations of forced migration. It is my task to reflect on efforts made in international law to promote and protect the rights of children--more specifically, children with disabilities--under the most trying of circumstances. If children are already vulnerable in situations of displacement and civil disorder, the challenges are magnified greatly for children and young persons with disabilities. The efforts of the international community were born out of the importance of and international commitment to creating new futures for all children.

I start by providing a brief historical background to the international efforts in setting norms and standards for the promotion and protection of children and their rights. I will then consider two very important international human rights instruments that are devoted to children with disabilities: the Convention on the Rights of the Child (1) and the Convention on the Rights of Persons with Disabilities. (2) I will examine the reality of life for children with disabilities across our world and introduce the work of the Committee on the Rights of the Child, focusing on General Comments and Days of General Discussion, particularly the 2012 Day of General Discussion. I will conclude by giving a brief introduction of the final link to the full realisation of rights of all children: the third Optional Protocol to the Convention on the Rights of the Child (CRC), (3) which is a new communications procedure for dealing with complaints about alleged violations of the CRC and its two Optional Protocols by states parties.

II Background to and Overview of the CRC and CRPD

The past few decades have witnessed major developments in the international law of human rights. Rather than treating the subjects of human rights treaties as persons in need of charity, the recent human rights treaties recognise their subjects as holders of inherent, inalienable and universal rights. This happened earlier for children than for persons with disabilities. Since the adoption of the Declaration on the Rights of the Child in 1959, (4) the international community has recognised that children are autonomous, rights-bearing human beings.

It is appropriate to recognise two important people who laid the foundation for a paradigm shift in how we think about children. They took us from viewing children as objects of charity and welfare, in need of harsh disciplining, to subjects and holders of rights. In as early as 1923, Eglantyne Jebb introduced the Declaration on the Rights of the Child into the League of Nations, and this served as the backbone to the 1959 UN Declaration. (5) The second key figure was Janusz Korczak, a Polish writer and physician, famous for his work with Jewish children orphaned during the conflicts of World War II. It was he who fought so strongly for adults to see children as autonomous persons, with their own needs and rights. He emphasised that the opinions of children must be respected and taken into consideration. (6) It is significant that both of these individuals worked with children in situations of forced migration. It was the experiences of displacement in World Wars I and II that led Jebb and Korczak respectively to rethink the place and rights of children in our society.

The beginnings of the legal journey to recognise children as holders of inherent rights, with dignity, and with their own needs and interests, came in early 1978, when a proposal was tabled by the Polish Government at the 34th Session of the UN Commission on Human Rights (since replaced by the Human Rights Council) (7). Ten years in the making, a human rights treaty for children emerged, pursuant to General Assembly Resolution 44/25, in 20 November 1989. (8) In record speed, this new and comprehensive treaty, containing 42 substantive provisions for the guarantee and protection of the economic, social, cultural, civil and political rights of children, entered into force on 2 September 1990, in accordance with art 49 of the CRC. It enjoys near universal ratification: 193 states have committed to full compliance with the Convention. (9) 10 11 The CRC has been supplemented by two optional protocols. The Optional Protocol on the Involvement of Children in Armed Conflict (10) legally raised the age of recruitment of children in armed conflict from 15 years to 18 years. As at October 2013, it enjoys 152 ratifications. The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (11) added further protection for children. As at October 2013, this protocol enjoys 165 ratifications. Both protocols were adopted in 2000 and entered into force in 2002. These two optional protocols significantly strengthened protection from the worst forms of violations of the human rights of children.

The CRC is the only human rights instrument with almost universal ratification. All but two countries globally (still with the exception of Somalia and the US) have committed to promote, protect, and uphold children's rights. The Convention is best understood as the culmination of the recognition of different legal systems and cultural traditions, underpinned by universally agreed upon norms and standards which are not negotiable. It is founded upon the universal agreement that we must respect the dignity and worth of each and every individual child, regardless of race, color, gender, language, religion, ability, social or ethnic origin.

Four general principles have been identified as running across the CRC. They are nondiscrimination (art 2); best interests of the child (art 3); life, survival and development (art 6); and respect for the views of the child (art 12). All these rights are indivisible and interdependent, providing for a holistic approach and avoiding a hierarchy of rights. The CRC made a very significant departure from most other human rights instruments, declarations and strategies with respect to children. It established the view that children--both girls and boys--from ages 0 to 18 years, are not simply the property of their parents, caregivers or the state, but citizens, rights-holders and social agents with the right to participate and be heard in the shaping of their own development and destiny, according to their age and level of maturity. Children are in constant change and are considered in accordance with their 'evolving capacities' (art 5).

Until 2006, when the CRPD was adopted, the CRC was the only international human rights instrument which gave legal effect to the promotion and protection of the rights of children with disabilities. Articles 2 and 23 of the CRC address the rights of children with disabilities. Article 2 establishes that disability should not be grounds for discrimination and recognises disability as a 'human rights' issue. In addition, art 23 explicitly addresses children with disabilities.

Just five years after Mexico proposed that the UN consider opening negotiations for a convention devoted to the rights of persons with disabilities, the text was finalised on 26 August 2006. I was present during the last Working Group to lobby for inclusion and mainstreaming children. Our work was assisted by the concerted efforts of NGOs (it must be noted that Gerison Landsdown was instrumental during this process) and the Committee on the Rights of the Child. (12) That group was quite successful in 'mainstreaming' children's issues throughout the text of the CRPD. The CRPD contains a provision which specifically addresses children with disabilities, but also adopts many of the principles from the entirety of the CRC. The following table depicts the very close relationship between the CRC and the CRPD. It sets out the many rights and principles common to both treaties and their specific location in each.

In order to comply with the new paradigm established by the CRC and CRPD, most nations have made significant changes to their legislation and to their policies, and many countries have established new institutions to assist children, and especially children with disabilities. Unfortunately, despite all of these developments, we are still faced with many issues, old and new, and with competing priorities. As Secretary-General to the UN, Ban Ki-Moon, noted in his report on the status of the CRC to the 66th Session of the General Assembly:

Children with disabilities are one of the most marginalized and excluded groups of children...