children’s rights legislative reform

Committee on the Rights of the Child (CRC Committee) - Childrens Rights Reform

The CRC Framework

Contents

Committee on the Rights of the Child (CRC Committee)

Role of the Committee on the Rights of the Child

The CRC Committee, established under article 43 CRC, is the treaty body which monitors States Parties’ implementation of the CRC, as well as its Optional Protocols. It is composed of 18 independent experts elected by the UN Member States.

The CRC Committee reviews States Parties’ implementation of the CRC and its Optional Protocols and makes recommendations (article 44 CRC).

It is also competent to hear individual communications and Inter-state communications, and to conduct inquiries in accordance with the Optional Protocol on Individual Communications (OPIC).  

The CRC Committee recommends and promotes legislative reform as part of States Parties’ duties to implement children’s rights.

The CRC Committee and legislative reform

Reporting procedure

Background reporting procedure

According to article 44 CRC, all States Parties to the CRC (and its Optional Protocols) must submit regular reports to the CRC Committee on the measures taken to give effect to the rights recognised in the CRC.

  • After submitting an initial report within 2 years of ratification, States Parties are required to submit reports every 5 years (article 44.1 CRC).
  • These reports must indicate progress and highlight difficulties, if any, that affect the degree of fulfilment of the obligations under the CRC. They must contain sufficient information to provide the CRC Committee with a comprehensive understanding of the CRC in the State Party concerned (article 44.2 CRC).
  • These reports should follow the Reporting Guidelines set by the CRC Committee.
  • In particular, States Parties must provide information on “general measures of implementation” (Guidelines, paras. 18-21). This includes, among others:
    • measures taken to review and bring domestic legislation and practice into full conformity with the CRC and the Optional Protocols;
    • the adoption of a comprehensive national strategy and plan for implementing children’s rights;
    • the overall coordination of the implementation of the CRC;
    • budgeting for children;
    • the establishment and functioning of Independent Child Rights Institutions (ICRIs) or National Human Rights Institutions (NHRIs) with an appropriate mandate to monitor the domestic implementation of the CRC;
    • cooperation with civil society on children’s rights; and
    • measures to make the principles and provisions of the CRC widely known (article 42 CRC).

States Parties should also consider the CRC’s General Comments (GCs), in particular the GC on general measures of implementation (CRC GC 5) and on public budgeting (CRC GC 19).

States Parties should make their reports widely available to the public in their own countries (article 44.6 CRC).

The CRC Committee can request additional information from States Parties on the implementation of the CRC (article 44.4 CRC).

ICRIs and NHRIs, UN entities (such as UNICEF), CSOs and other stakeholders, including children, are also invited to submit additional information on the relevant States Parties’ implementation of the CRC, in line with article 45(a)(b) CRC.

After a thorough review of the reports submitted, the CRC Committee engages in a constructive dialogue with the respective State Party.

  • A constructive dialogue is the practice of inviting States Parties to send a delegation to the session at which their report will be considered in order to enable them to respond to the CRC Committee members’ questions and provide additional information on their efforts to implement the provisions of the relevant treaty. This emphasises the fact that the treaty bodies are not judicial bodies, but are created to review the implementation of the treaties.
  • The CRC Committee subsequently issues COBs with recommendations that highlight gaps in the implementation of the CRC and/or its Optional Protocols and makes recommendations as to how these gaps can be filled.
Implications for legislative reform

The aim of COBs and Recommendations is to encourage States Parties to take further action to implement their obligations under the CRC.

States Parties are expected to implement the recommendations of the Committee.

The COBs and Recommendations reflect the Committee’s views on how the CRC should be applied with regard to the particular situation of a given State Party (Mechlem 2009). In this regard, the Concluding Observations and Recommendations could be considered part of the CRC Committee’s jurisprudence, together with its GCs and OPIC decisions.

COBs are therefore a strong tool to support, strengthen or legitimise arguments of domestic actors in favour of change (Krommendijk 2015).

One of the most common recommendations of the CRC Committee is to harmonise domestic legislation with the provisions of the CRC.

E.g.: In 2013, the CRC Committee urged Guyana to establish a clear timeline for considering its draft Juvenile Justice Bill and ensure its full compliance with the CRC and other relevant standards, including by raising the age of criminal responsibility from 10 years and abolishing status offences (COB Guyana 2013, para. 62). Based on this recommendation and with the support of UNICEF Guyana, the State reviewed the draft Bill, leading to its adoption in 2018 (Juvenile Justice Act 2018). The government supported a costing of the intended legislation and provided some support for the work of the family court, the introduction of a new Children’s Court and the roll-out of Juvenile Drug Treatment Courts in 2022.

E.g.: The CRC Committee recommended that Kiribati continue reviewing its existing laws related to children’s rights to ensure that they are in full compliance with the principles and provisions of the Convention (COB Kiribati 2022, para. 7).

E.g.: The CRC Committee stated that Canada should develop a comprehensive law on children’s rights at the federal level in line with the principle and provisions of the CRC (COB Canada 2022, para. 7).

Days of General Discussion

Every second year the CRC Committee organises a ‘Day of General Discussion’ (DGD).

The purpose of the DGDs is to foster a deeper understanding of the contents and implications of the CRC in relation to specific articles or topics.

Representatives of governments, NGOs, UN human rights mechanisms, UN entities and specialised agencies, ICRIs, NHRIs and the business sector, academic institutions, individual experts and children are invited to take part in the DGD.

After each DGD, an outcome report is published, which provides further guidance. They have sometimes been the basis for the adoption of General Comments (Doek 2019).

DGDs have led to the publication of reports recommending States Parties to undertake legislative reform.

E.g.: In the report of the 2012 DGD on the rights of all children in the context of migration, States Parties were “strongly encouraged to expeditiously reform legislation, policies and practices that prevent or discriminate against children affected by migration and their families, in particular those in an irregular situation, from effectively accessing services and benefits such as health care, education, long-term social security and social assistance, among others” (para. 86).

E.g.: In the report of the 2014 DGD on Digital media and children, the CRC Committee recommended that “States should adopt and effectively implement comprehensive human rights-based laws and policies which integrate children’s access to digital media and ICTs and ensure the full protection under the Convention and its Optional Protocols” (para. 86).

DGDs have also led to recommendations to the UN General Assembly to request the Secretary General to undertake studies on specific issues related to children’s rights, in line with article 45(c) CRC.

  • The 1993 Day of General Discussion led to the recommendation to undertake a study on children and armed conflict (Machel 1996) and the drafting and adoption of OPAC.
  • The Days of Discussion in 2000 and 2001 led to the recommendation to undertake a study on violence against children (Pinheiro 2006).

General Comments

Background on General Comments

Based on article 45(d) CRC, the CRC Committee can make recommendations on any issue that relates to children that it believes should receive more attention from States Parties. It typically does so in the form of General Comments (GCs) (Doek 2019).

GCs provide an authoritative interpretation of specific provisions of the CRC or of specific children’s rights issues (Doek 2019).

GCs are considered to have considerable legal weight, since the UN treaty bodies are the most authoritative bodies under the international human rights instrument they monitor (Mechlem 2009).

General Comments are also cited in decisions by regional and domestic courts.

E.g.: In the Grand Chamber judgment H.F and Other v. France delivered by the European Court of Human Rights (ECtHR) in 2022, the Court found that France had violated article 3.2 of Protocol No. 4 of the ECHR providing that “no one shall be deprived of the right to enter the territory of the States of which he is a national”. The case concerned French authorities’ refusal to grant a request of the applicants’ daughters and grandchildren who were being held in north-eastern Syria. The Court cited Joint General Comments No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 of the CRC Committee in the context of International Migration: General principles and No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 of the CRC Committee on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return to come to its decision.

E.g.: In the European Court of Human Rights judgment M. and M. v. Croatia delivered in 2015, the Court found that Croatia had violated article 8 of the ECHR of a mother on account of the excessive length of the custody proceedings in respect of the applicants, a mother and daughter, and on account of the daughter’s lack of involvement in the custody decision-making process. In particular. The Court cited the CRC Committee’s General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) and General Comment No. 12 (2009) on the right of the child to be heard (Article 12) to come to its decision.

E.g.: In the Inter-American Court judgment Mendoza et al v. Argentina delivered in 2013, the Court found that in Argentina life imprisonment amounted to arbitrary imprisonment and that the life sentences imposed of the applicants (who had committed offences while under 18 years old) amounted to cruel, inhuman and degrading treatment or punishment, and thus ordered Argentina to ensure that no one be sentenced to life imprisonment for offences committed while under 18 years old. It also found that Argentina had failed to investigate the death and torture of young prisoners. The Court cited the CRC Committee’s General Comment No. 10 on Children’s rights in juvenile justice and General Comment No. 7 on Implementing child rights in early childhood to come to its decision.

General Comments adopted by the CRC Committee (26 in total)

Implications for legislative reform

General Comments offer further insights into the legislation needed for the implementation and interpretation of the CRC.

In particular, General Comment No. 5 on general measures of implementation provides that States Parties are required to conduct a comprehensive review of all domestic legislation and related administrative guidance to ensure full compliance with the CRC (CRC GC 5, para. 18).

General Comment No. 5 highlights specific areas of general implementation with specific relevance to the process of legislative reform:

  • Reservations and declarations. The CRC Committee invites States Parties to reconsider reservations, since full and unqualified respect for children’s rights can only be achieved if States Parties withdraw their reservations (para. 13) (see further WHY section);
  • Ratification of other relevant international human rights instruments (para. 17) (see further WHY section);
  • Legislative measures, including comprehensive review of all domestic legislation and related administrative guidance (para. 18) and giving legal effect to the provisions of the CRC within national legal systems by all appropriate means (para.19);
  • Ensuring justiciability of rights (paras. 24-25);
  • Establishment of cross-sectoral coordination to recognise and realise children’s rights across government and between government and civil society, including children and young people (para. 27);
  • Development of a comprehensive national strategy or national plan of action for children (paras. 28-36);
  • Obligations on governments to fulfil their obligations under the CRC in circumstances of decentralisation, federalisation and delegations of functions (paras. 40-41);
  • Privatisation (paras. 43-44, supplemented by CRC GC 16);
  • Monitoring and CRIA/CRIE (paras. 45-47);
  • Data collection and analysis, and the development of indicators (paras. 48-50);
  • Making children visible in budgets (paras. 51-52, supplemented by CRC GC 19);
  • Training and capacity-building for all those involved in the implementation of the CRC (paras. 53-55);
  • Cooperation with civil society (paras. 56-59);
  • International cooperation (paras. 60-64);
  • Establishment and resourcing of independent human and/or children’s rights institutions (paras. 65-73) (See further WHO section).

General Comment No. 19 on public budgeting for the realisation of children’s rights is also of particular relevance for children’s rights legislative reform.

  • It assists States Parties in the implementation of the CRC in relation to public budgets, identifies States Parties’ obligations and makes recommendations on how to realise all the rights under the CRC through effective, equitable, transparent and sustainable public budget decision-making (para. 1).
  • GC 19 elaborates on the following principles that should be followed for public budgets for children’s rights:
    • Effectiveness: constantly assessing budget decisions to ensure the best possible outcomes for children (para. 59)
    • Efficiency: managing public resources and programmes in such a way as to ensure value for money and bearing in mind the obligation to respect, protect, and fulfil children’s rights (para. 69)
    • Equity: implementing the principle of non-discrimination through resource mobilisation and the allocation or execution of public funds and make spending decisions leading to substantive equality among children (para. 61)
    • Transparency: developing and maintaining public finance systems that are open to scrutiny which in turn combat corruption and maladministration (para. 62)
    • Sustainability: taking into account the best interests of current and future generations of children in budget decisions (para. 63)
For more information, see Sloth-Nielsen (2019)

OPIC

See: Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC)