http://orcid.org/0000-0002-2855-6911
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ABSTRACT
The United Nations Convention on the Rights of the Child is a binding treaty of international law and, under Article 4, States Parties are required to take legal, administrative and other measures to implement its provisions. States Parties have interpreted this obligation in different ways, including the adoption of both legal and non-legal measures designed to embed the Convention in the national legal system. Direct incorporation of the Convention has been getting increasing attention with jurisdictions choosing to give it the effect of national law, while others have adopted creative approaches that give further effect to the Convention via indirect incorporation. Research has begun to document these varying approaches and to examine their impact and this paper sets out the lessons to be learned from this accumulation of international experience. Building on the themes of this special issue, the paper seeks to establish a knowledge base on Convention implementation to inform national level decision-makers and advocates as to how to give greater effect to the Convention at a national level. In this regard, it includes a discussion of the merits of the different approaches to implementation of the Convention and identifies the elements necessary to leverage change in the protection of children’s rights at the national level.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Ursula Kilkelly is a professor of law working in the field of children’s rights. She has published in the leading journals on the area of children’s rights implementation and undertaken funded research for the Council of Europe, national bodies like the Ombudsman for Children and UNICEF UK. She is currently co-editor of Youth Justice: An International Journal.
Notes
1 The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations by its resolution 44/25 of 20 November 1989.
2 See Ton Liefaard, and Julia Sloth-Nielsen, ‘25 Years CRC: Reflecting on Successes, Failures and the Future’, in The United Nations Convention on the Rights of the Child. Taking Stock After 25 Years and Looking Ahead, ed. Ton Liefaard and Julia Sloth-Nielsen (Leiden: Martinus Nijhoff, 2016), 1–13.
3 See Bronagh Byrne, and Laura Lundy, ‘Reconciling Children’s Policy and Children’s Rights: Barriers to Effective Government Delivery’, Children and Society 29 (2015): 266–76, and more generally, Ursula Kilkelly, Barriers to the Implementation of Children’s Rights in Ireland (Dublin: Ombudsman for Children, 2007).
4 Committee on the Rights of the Child, General Comment No 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, 27 November 2003.
5 L. Lundy, U. Kilkelly, and B. Byrne, ‘Incorporation of the United Nations Convention on the Rights of the Child: A Comparative Review’, International Journal of Children’s Rights 21 (2013): 442–63.
6 The CRC has 196 states parties and the United States is the only United Nations state party to have signed but not ratified the Convention. See the current status of Convention ratification here: http://www.ohchr.org (accessed March 2, 2018).
7 Scholarship on the Convention is very active as is evident from the recent publication of several edited collections including: Wouter Vandenhole, Ellen Desmet, Didier Reynaert, Sara Lembrechts, eds., The Routledge International Handbook of Children's Rights Studies (London: Routledge, 2015); Martin Ruck, Michele Peterson-Badali, Michael Freeman, eds., Handbook of Children’s Rights. Global and Multidisciplinary Perspectives (New York: Routledge, 2017), and Ursula Kilkelly, and Ton Liefaard, eds., International Human Rights of Children (Dordrecht: Springer, 2018).
8 See Committee on the Rights of the Child, General Guidelines regarding the Form and Content of Initial Reports to be submitted by States Parties under Article 44, paragraph 1(a), of the Convention, CRC/C/5, 30 October 1991, para 13.
9 For an analysis see K. Hanson, and L. Lundy, ‘Does Exactly What It Says on the Tin? A Critical Analysis and Alternative Conceptualisation of the So-called “General Principles” of the Convention on the Rights of the Child’, International Journal of Children’s Rights 25 (2017): 285–306, at 297.
10 For an exploration of this issue, see S. Besson, ‘The Bearers of Human Rights’ Duties and Responsibilities for Human Rights: A Quiet (R)evolution?’, Social Philosophy and Policy 32, no. 1 (2015): 244–68.
11 Committee on the Rights of the Child, General Comment No 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, 27 November 2003, 18.
12 See Human Rights Committee, General Comment 3, Implementation at the national level (1981), para 1. See also Committee on Economic, Social and Cultural Rights (1990) General Comment 3: The nature of States Parties Obligations, at para 4.
13 Committee on the Rights of the Child, General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, 27 November 2003, 1.
14 Ibid.
15 Ibid.,18.
16 Ibid.,19.
17 Ibid., 22.
18 Ibid., 21.
19 Ibid., 24–5.
20 Ibid., 20.
21 Hanson and Lundy, ‘Does Exactly what it Says on the Tin?’, 299.
22 General Comment 2, The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child (Geneva: UN, CRC/GC/2002/2), 1.
23 Committee on the Rights of the Child, General Comment No 5, General Measures of Implementation of the Convention, 9.
24 See Committee on the Rights of the Child, General Comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4), CRC/C/2016/19. See also Chelsea Marshall, and Laura Lundy, Child-participatory Budgeting: A Review of Global Practice (London: Save the Children, 2017), https://resourcecentre.savethechildren.net/library/child-participatory-budgeting-review-global-practice.
25 Committee on the Rights of the Child, General Comment No 5, General Measures of Implementation of the Convention, 45.
26 Ibid., 53–5.
27 The Committee has adopted 23 General Comments to date on various aspects of the Convention’s implementation. See details at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11.
28 To date, there have been substantive decisions with the majority being found either inadmissible or discontinued. See details at http://juris.ohchr.org/en/search/results?Bodies=5&sortOrder=Date. On OP3, generally see Suzanne Egan, ‘The New Complaints Mechanism for the Convention on the Rights of the Child. A Mini-step forward for Children?’, International Journal of Children’s Rights 22, no, 1 (2014): 205–22.
29 See UNICEF Innocenti Research Centre, Law Reform and Implementation of the CRC (Florence: UNICEF, 2007), and Laura Lundy et al. The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (London: UNICEF UK, 2012).
30 Jane Williams, ‘Multi-level Governance and CRC Implementation’, in The Human Rights of Children: From visions to implementation, ed. A. Invernizzi and J. Wiliams (Farnham: Ashgate, 2011), 239–62.
31 See UNICEF Innocenti Research Centre, Law Reform and Implementation of the CRC.
32 Lundy et al., The UN Convention on the Rights of the Child, 38.
33 UNICEF Innocenti Research Centre, Law Reform and Implementation of the CRC.
34 Lundy et al., The UN Convention on the Rights of the Child, 59.
35 CRIN, Access to Justice for Children: Iceland, https://www.crin.org/sites/default/files/iceland_access_to_justice_0.pdf.
37 Lundy et al., The UN Convention on the Rights of the Child, 30.
38 Ibid., 30.
39 Ibid., 77.
40 First Minister Nicola Sturgeon's speech introducing the Government's programme for Scotland 2018–2019, September 4, 2018, https://beta.gov.scot/publications/programme-for-government-first-ministers-speech/.
41 Developments in Scotland are considered further elsewhere in this volume.
42 Lundy et al., The UN Convention on the Rights of the Child 101.
43 Ibid.
44 Ibid., 59.
45 Conor O’Mahony, ‘Falling Short of Expectations: The 2012 Children Amendment, from Drafting to Referendum’, Irish Political Studies 31, no. 2 (2015): 252–81.
46 John Tobin, ‘Increasingly Seen and Heard: The Constitutional Recognition of Children’s Rights’, South African Journal on Human Rights 21 (2005): 99.
47 UNICEF Innocenti Research Centre, Law Reform and Implementation of the CRC.
48 Article 39(4) of the 1978 Constitution of Spain establishes that ‘[c]hildren shall enjoy the protection provided for in the international agreements safeguarding their rights’. See Lundy et al., The UN Convention on the Rights of the Child, 64.
49 Claire McGing, ‘The Children's Referendum 2012’, Irish Political Studies 29, no. 3 (2014): 471–9.
50 CRIN, Access to Justice for Children: Iceland, https://www.crin.org/sites/default/files/iceland_access_to_justice_0.pdf.
51 European Commission for Democracy through Law (Venice Commission), Report on the Protection of Children’s Rights: International Standards And Domestic Constitutions. Opinion No 713/2013, 3 April 2014, CDL-AD(2014)005 Or.Eng, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)005-e.
52 Venice Commission, Report on the Protection of Children’s Rights, 21–4.
53 Ibid., 24.
54 Lundy et al., The UN Convention on the Rights of the Child, 37.
55 Ibid., 94–5.
56 O’Mahony, ‘Falling Short of Expectations’.
57 For a constitutional view see Oran Doyle, and David Kenny, ‘Constitutional Change and Interest Group Politics: Ireland's Children's Rights Referendum’, in The Foundations and Traditions of Constitutional Amendment, ed. Richard Albert, Xenephon Contiades, and Alkmene Fotiadou (Oxford: Hart Publishing, 2017). Available at SSRN: https://ssrn.com/abstract=2960031.
58 W. Binford, ‘The Constitutionalisation of Children’s Rights in South Africa’, New York Law School Review 60 (2015–2016): 333–63.
59 See also Skelton Ann, ‘Child Justice in South Africa: Application of International Instruments in the Constitutional Court’, International Journal of Children’s Rights 26, no. 3 (2018): 391–422.
60 B. Dorn, ‘The Suprising Role of the CRC in a Non-State Party’, in Litigating the Rights of the Child, ed. T. Liefaard and J. Doek (Dordrecht: Springer, 2015), 71–87.
61 J. Sloth Nielsen, and H. Kruuse, ‘A Maturing Manifesto: The Constitutionalisation of Children’s Rights in South African Jurisprudence 2007–2012’, International Journal of Children’s Rights 21, no. 4 (2013): 646–78.
62 In Lundy et al., The UN Convention on the Rights of the Child, for example, see 31 (Australia), 45 (Germany), 77 (Denmark) and page 84 (New Zealand). See U. Kilkelly, ‘The Best Interests of the Child; A Gateway to Children’s Rights’, in Implementing Article 3 of the Convention on the Rights of the Child: Best Interests, Welfare and Well-being, ed. E. Sutherland and L. A. Barnes Macfarlane (Cambridge: Cambridge University Press, 2018), 51–66.
63 In Lundy et al., The UN Convention on the Rights of the Child, 52 (Ireland), 65–66 (Spain) and 84 (New Zealand).
64 Ibid., 59 (Norway) and 73 (Canada).
65 This has happened in all jurisdictions of the United Kingdom too (not formally included in the study). Ibid., 115–6, 118–9 (England), 120–21 (Scotland).
66 Ibid., 45.
67 Ibid., 59.
68 Ibid., 91.
69 Ibid., 65.
70 J. Harrington, ‘The Democratic Challenge of Incorporation: International Human Rights Treaties and National Constitutions’, Victoria University of Wellington Law Review 38 (2007): 217–36.
71 O’Mahony, ‘Falling Short of Expectations’.
72 For example, see Iceland, Lithuania and the Ukraine. Venice Commission, 24–5.
73 Lundy et al., The UN Convention on the Rights of the Child, 94–5.
74 Jane Williams, ‘General Legislative Measures of Implementation: Individual Claims, “Public Officer’s Law” and a Case Study on the UNCRC in Wales’, The International Journal of Children's Rights 20, no. 2 (2012) 224–40. See also Hoffman in this volume.
75 Lundy et al., The UN Convention on the Rights of the Child, 123–4.
76 See Simon Hoffman and Jane Williams, ‘Accountability’, in The Rights of the Child in Wales, ed. J. Williams (Swansea: University of Wales Press, 2013), 167–80.
77 The practice in Scotland is illustrated in Juliet Harris et al., State of Children’s Rights in Scotland, 2016 (Edinburgh: Together, 2016), 14, http://www.togetherscotland.org.uk.
78 Lundy et al., The UN Convention on the Rights of the Child, 39–40. See E. Desmet, H. Op de Beek, and W. Wanderhole, ‘Walking a Tightrope: Evaluating the Child and Youth Impact Report in Flanders’, International Journal of Children’s Rights 23, no. 1 (2015): 78–108.
79 Lundy et al., The UN Convention on the Rights of the Child, 31.
80 Ibid., 30–31.
81 Ibid., 39.
82 Lundy, Kilkelly and Byrne, ‘Incorporation of the United Nations Convention’, 455–61.
83 Committee on the Rights of the Child, General Comment 2, The Role of Independent National Human Rights, 1.
84 J. Todres, ‘The Trump Effect, Children and the Value of Human Rights Education’, Family Court Review 56, no. 2 (April 2018): 331–43.
85 Committee on the Rights of the Child, General Comment No.5, 66–8.
86 See also K. Covell, and B. Howe, ‘The Impact of Children’s Rights Education: A Canadian Study’, International Journal of Children’s Rights 7, no. 2 (1999): 171–83.
87 Lundy et al., The UN Convention on the Rights of the Child, 74.
88 Ibid.,79.
89 Ibid., 33–4.
90 Ibid., 38 (Belgium) and 62 (Norway).
91 This underpins the inclusion of this right in Article 42 See also Hanson and Lundy, ‘Does Exactly what it Says on the Tin?’.
92 See U. Kilkelly, ‘The Best Interests of the Child; A Gateway to Children’s Rights’.
94 General Comment 2, The Role of Independent National Human Rights, 1.
95 Lundy et al., The UN Convention on the Rights of the Child, 33.
96 For more information see http://www.welcome.oca.gov.jm/about/.
97 Save the Children, Governance Fit for Children: To What Extent Have the General Measures of implementation of the UNCRC been realised in five European Countries? (Stockholm: Save the Children, 2010).
98 See the case of Ireland in Lundy et al., The UN Convention on the Rights of the Child, 53.
99 Ibid.
100 Ibid., 461.
101 Ibid., 100–101.
102 Ibid., 108.
103 Ibid., 59–60.
104 See for example, the extensive process of legal implementation that has been taking place in Norway (59–60); Ireland (51–2) and Germany (45–6) in Lundy et al., The UN Convention on the Rights of the Child.
105 Ibid.
106 Lundy, Kilkelly, and Byrne, ‘Incorporation of the United Nations Convention’, 449–50.
107 O’Mahony, ‘Falling Short of Expectations’.
108 Lundy et al., The UN Convention on the Rights of the Child, Canada (73) and 39–40 (Belgium).
110 Lundy, Kilkelly, and Byrne, ‘Incorporation of the United Nations Convention’, 463.
111 See Tisdall et al in this volume.
112 Lundy, Kilkelly, and Byrne, ‘Incorporation of the United Nations Convention’, 461.
113 Ibid., 461–2.