children’s rights legislative reform

Regional frameworks for children’s rights - Childrens Rights Reform

Wider Framework for Children’s Rights

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Regional frameworks for children’s rights

Children’s rights are protected by a number of regional instruments and mechanisms in Africa, North and Latin America, Asia and Europe.

Regional mechanisms also take children’s rights into account in their recommendations and decisions.

Regional mechanisms have interpreted relevant regional instruments in light of international instruments, which has resulted in the regional mechanisms influencing domestic legislation in favour of children’s rights.

African Union (AU)

African Charter on the Rights and Welfare of the Child (ACRWC)

The ACRWC is a regional human rights instrument specific to children. It is similar to the CRC but also includes components which are unique to the situation of children in Africa (Olowu 2011).

Adoption: 1990; Entry into force: 1999

Status of ratification

The African Committee of Experts on the Rights and Welfare of the Child monitors the implementation of the ACRWC.

The functions of the African Committee of Experts are:

  • To promote and protect the rights enshrined in the Charter
    • collect and document information, commission interdisciplinary assessment of situations on African problems in the fields of the rights and welfare of the child, organise meetings, encourage national and local institutions concerned with the rights and welfare of the child, and where necessary give its views and take recommendations to governments;
    • formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa;
    • cooperate with other African, International and Regional Institutions and Organisations concerned with the promotion and protection of the rights and welfare of the child.
  • To monitor the implementation of the Charter
  • To interpret the provisions of the Charter
  • Perform such other tasks entrusted to it by the Assembly of the Heads of States and Governments and Organs of the African Union.
  • Under article 44 ACRWC, the African Committee of Experts may receive communications from any person, group or non- governmental organisation recognized by the AU, by a Member State, or the United Nations relating to any matter covered by this Charter (Sloth-Nielsen 2014).
  • In its decisions, the Committee can make recommendations to States Parties for legislative reform.

E.g.: The African Centre of Justice and Peace Studies and People’s Legal Aid Centre brought a communication against the government of Republic of Sudan regarding the statelessness of a child. The Committee found that Sudan had violated the child’s rights under the Charter, and, among other things, recommended that the State revise its Nationality Act and adopt a law or regulation in line with international standards that regulate the manner in which Sudanese Nationality is revoked (African Centre of Justice and Peace Studies (ACJPS) and People’s Legal Aid Centre (PLACE) V. the Government of Republic of Sudan 2018).

In 2009, a communication was brought before the African Committee of Experts on the Rights and Welfare of the Child on behalf of children of Nubian descent in Kenya, by the Institute for Human Rights and Development in Africa and Open Society Initiative, against Kenya. It avowed the Kenyan governments’ refusal to grant Kenyan nationality to children of Nubian descent resulting in gross violations of their rights guaranteed in the ACRWC. In 2011, the Committee found that Kenya violated children’s right to nationality, with statelessness being opposite to the best interests of the child. It also found that Kenya’s vetting system violated their right to freedom from discrimination. Moreover, Nubian children’s rights to the highest attainable standard of health and to education were also found to have been infringed. The Committee issued five detailed recommendations including legislative and administrative reforms (Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on behalf of Children of Nubian Descent in Kenya V. The Government of Kenya 2011; Fokala and Chenwi 2014; Open Society Justice Initiative)

See communications.

Under article 45 ACRWC, the Committee may resort to any appropriate method of investigating any matter falling within the ambit of the Charter, request any information from the States Parties relevant to the implementation of the Charter and may also resort to any appropriate method of investigating the measures a State Party has adopted to implement the Charter.

African Charter on Human and Peoples' Right (1986)

The African Charter on Human and Peoples’ Rights (ACHPR) sets out civil, political, economic social and cultural rights.

Adoption: 1981; Entry into force: 1986.

Status of ratification

The instrument established the African Commission on Human and Peoples’ Rights, which can hear individual and Inter-state communications.

Article 18 provides that States shall ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.

It also has an Optional Protocol that established the African Court on Human and People's Rights.

In 2020, Sudan enacted the Miscellaneous Amendments Law 2020 to repeal whipping and flogging by way of discipline and as a sentence for crime. The new law replaces whipping with probation and community service (article 47(b)). The law reform followed a 2003 decision of the African Commission on Human and Peoples’ Rights which found that legislation permitting flogging in Sudan violated article 5 of the African Charter on Human and Peoples’ Rights prohibiting torture and cruel, inhuman or degrading punishment and treatment for all people.

Source: Ending corporal punishment in the child justice system: legal and human rights approaches (2024)

Organisation of American States (OAS)

The OAS brings together all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the Hemisphere.

American Declaration of the Rights and Duties of Man

The American Declaration is considered the formal beginning of the Inter-American system for the protection and promotion of fundamental rights.

Adoption: 1948.

The American Declaration is a non-binding declaration on the fundamental human rights of an individual. It outlines the economic, social and cultural rights, as well as equality under the law.

Signatories are considered to be all States that are members of the Organization of American States.

American Convention on Human Rights

The American Convention on Human Rights affirms the intention of States Parties to consolidate “within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man” and focuses mainly on civil and political human rights.

Adoption: 1969; Entry into force: 1978

Status of ratification

Article 19 provides that “every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state”.

The instrument established the Inter-American Commission on Human Rights (IACHR), which monitors human rights in States Parties and can receive individual petitions with flexible standing rules (e.g. petitioners do not have to be direct victims of violations). If the complaint meets the procedural requirements, it can be referred to the Inter-American Court of Human Rights (or the Commission can make conclusions and recommendations.

E.g.: After deciding that Guatemala had violated the American Convention on Human Rights in relation to the death of five children, the Inter-American Court of Human Rights held reparation proceedings and decided, among other things, that the State must adopt in its domestic legislation the legislative, administrative and any other measures necessary to adapt it to article 19 of the Convention (Case of the "Street Children" (Villagrán Morales et al.) v. Guatemala 2001).

Rapporteurship on the Rights of the Child

The Office of the Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights promotes respect for the human rights of children and adolescents in the Americas.

The Rapporteurship on the Rights of the Child participates in the analysis and evaluation of the situation of the human rights of children in the Americas.

It provides advice to the Inter-American Court of Human Rights in the proceedings of individual petitions, cases and requests of precautionary and provisional measures pertaining to child rights.

It also undertakes on-site visits in the OAS Member States and prepares studies and publications.

Council of Europe

European Convention on Human Rights

The European Convention on Human Rights (ECHR) is the first Council of Europe’s convention and the cornerstone of all its activities.

Adoption: 1950; Entry into force: 1953

Status of ratification: The ECHR has been ratified by all 46 Member States of the Council of Europe as well as the European Union as an institution.

The European Court of Human Rights (ECtHR) rules on individual (article 34) or Inter-state applications (article 33) alleging violations of rights set out in the ECHR.

The ECHR contains few express references to children, but it has been used to protect children’s rights, in particular through individual petitions submitted to the ECtHR by children and their representatives (Fenton-Glynn 2020).

The ECHR, in particular through the jurisprudence of the ECtHR, has made decisions protecting children’s rights. Article 8 of the ECHR on the right to respect for private and family life is the most litigated provision from a child’s perspective (e.g. in relation to adoption, child abduction, alternative care, custody and access, identity). The ECtHR builds on the CRC and has also forged a new path for children’s rights in some areas (Kilkelly 2010; Fenton-Glynn 2020).

The ECtHR judgements are binding on States Parties to the ECHR and its protocols (article 46 ECHR).

The ECtHR points in its judgments to areas of lack of compliance with children’s rights and national law. The ECtHR’s jurisprudence has also led to additional standard-setting, for example in the area of child-friendly justice.

E.g.: In T. v. UK (1999), the ECtHR found that the right to effective participation of the child accused of committing a serious crime was violated, as a result of which he was not granted a fair trial (i.e. a violation of article 6 ECHR). The ECtHR explicitly referred to the CRC in its considerations and this judgment led to the development of the Council of Europe’s Guidelines on child-friendly justice (2010; see also Liefaard 2020).

E.g.: In a decision against Turkey on religious education in school, the Court decided that bringing the Turkish education system and domestic legislation into conformity with article 2 of Protocol 1 of the Convention on freedom to religion was an appropriate remedy (Hasan and Eylem Zengin v. Turkey 2007).

For more information on the ECtHR case law relevant to children, see: Handbook on European law relating to the rights of the child (2022).

European Social Charter (ESC)

The ESC is a treaty from the Council of Europe (COE) that guarantees fundamental social and economic rights. The Charter is seen as the ‘Social Constitution’ of Europe and represents an essential component of the continent’s human rights architecture (COE).

Adoption: 1961, revised in 1996; Entry into force: 1965, revised charter in 1999.

Status of ratification: the Charter has been ratified by 27 States; the Revised Charter was ratified by 35 States.

The Committee’s decisions or conclusions of the European Committee of Social Rights should be respected by the States Parties concerned. However, they are not automatically enforceable in the domestic legal system. 

The European Committee of Social Rights can make decisions or conclusions that inform domestic legislative reform for children.

E.g.: In World Organisation Against Torture v. Portugal 2007 (No. 34/2006), the complainant alleged that Portugal’s domestic law does not explicitly nor effectively prohibit corporal punishment of children, in violation of article 17 ESC. The European Committee of Social Rights concluded unanimously that there was a violation of article 17. In particular, it stated in its decision on the merits that (paras. 19-21):

  • “To comply with article 17, states' domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological wellbeing of children.
  • The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children.
  • Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.”

E.g.: In International Commission of Jurists (ICJ) v. Czech Republic, the ICJ alleged that the Czech Republic failed to protect the rights of the group of children below the age of criminal responsibility in the juvenile justice system (15 years old), in violation of Article 17 of the 1961 Charter. In 2017, the European Committee of Social Rights (ECSR) held that the State Party’s failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings and to provide alternatives (diversion) to formal judicial proceedings “amount to a violation of article 17 of the 1961 Charter” (para. 124). (See van den Brink and Valentine 2021). This led to the Committee of Ministers recommending, in particular, that the State take all necessary legislative and institutions measures to ensure mandatory legal assistance to children of that age (Recommendation CM/RecChS(2021)15).

E.g.: In International Commission of Jurists (ICJ) & European Council for Refugees and Exiles (ECRE) v. Greece, ICJ and ECRE allege that Greece fails to ensure the protection of unaccompanied migrant children in Greece and accompanied migrant children on the North Eastern Aegean islands due to inter alia the oversaturation of reception facilities, in violation of articles 7(10) (the right of children and young persons to protection), 11(1) and (3) (the right to protection of health), 13 (right to social and medical assistance), 16 (right to appropriate social, legal and economic protection for the family), 17 (right of children and young persons to appropriate social, legal and economic protection) and 31(1) and (2) (right to housing) of the Revised European Social Charter. In 2021, the ECRS found violations of article 31(1)(2), 17(1), 7(10), 17(2), 11(1)(3). (See Papadopoulos 2021).

Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention)

The Lanzarote Convention requires criminalisation of sexual offences against children. It sets out that States Parties shall adopt specific legislation and take measures to prevent sexual violence, to protect child victims and to prosecute perpetrators.

Adoption: 2007; Entry into force: 2007.

Status of ratification: the Lanzarote Convention has been ratified by 48 parties. It is open to ratification by States that are not members of the Council of Europe. In fact, Tunisia ratified the Convention in 2020.

Article 39 of the Lanzarote Convention establishes the Lanzarote Committee, which monitors whether States effectively implement the Convention. The Lanzarote Committee can make recommendations for legislative reform.

E.g.: In the implementation report of its secondmonitoring round on the protection of children against sexual exploitation and sexual abuse facilitated by information and communication technologies, the Lanzarote Committee invited States to consider criminalising solicitation of children for sexual purposes, even when it does not lead to a face-to-face meeting or to producing child sexual abuse material (Recommendation II-10).

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Adoption of the Convention: 1987; Entry into force: 1989.

Status of ratification: the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment has been ratified by 47 parties.

The Convention established the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The CPT visits places of detention to assess how persons deprived of their liberty are treated. These places include places where children are detained. After each visit, the CPT sends a detailed report to the State concerned. This report includes the CPT’s findings, and its recommendations, comments and requests for information. 

The CPT also establishes standards. Among others, it elaborated standards on Juveniles deprived of their liberty under criminal legislation in 2015.

For more information: Children’s rights and the European Committee for the Prevention of Torture (2012).

Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention)

The Convention aims to protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regards to the application of biology and medicine.

Adoption: 1997; Entry into force: 1999

Status of ratification: the Oviedo Convention has been ratified by 30 States. It is open to ratification by States that are not members of the Council of Europe.

It sets out fundamental principles applicable to daily medical practice. It also deals specifically with biomedical research, genetics and transplantation of organ and tissues.

The Convention is further elaborated and complemented by Additional Protocols on specific subjects.

The Steering Committee for Human Rights in the fields of Biomedicine and Health carries out the work assigned to the Steering Committee by the Oviedo Convention and conducts intergovernmental work on human rights protection in the fields of biomedicine, as well as health.

The Convention and the work of the Committee also relate to children. For example, the Committee published a report on the rights of children in biomedicine in 2017.

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

The Istanbul Convention is a major human rights treaty establishing comprehensive legal standards to ensure women’s right to be free from violence.

Adoption: 2011; Entry into force: 2014.

Status of ratification. The Istanbul Convention is open to ratification by States that are not members of the Council of Europe. It was ratified by the European Union as an institution in 2023.

The Group of Experts on Action against Violence against Women and Domestic Violence is the independent expert body responsible for monitoring the implementation of the Istanbul Convention by the Parties.

The Istanbul Convention contains a range of measures to prevent gender-based violence against girls, protect girls against such violence and prosecute the perpetrators. For example, it imposes on States Parties an obligation to criminalise forcing a child into marriage (article 37) and FGM (article 38). The Istanbul Convention also contains a specific provision for the protection and support of child witnesses (article 26) and child victims of domestic violence (article 56). It also aims to protect children from gender-based and domestic violence by providing that States Parties should ensure that incidents of violence are taken into account in the determination of custody and visitation rights of children (article 31).

Other relevant instruments

For more information on European law and children, see: Handbook on European law relating to the rights of the child (2022)

European Union (EU)

EU Charter of Fundamental Rights

The EU Charter of Fundamental Rights enshrines the rights of all inhabitants of the European Union (EU), covering all civil, political, economic, social and cultural rights. The Charter also includes 'third generation' rights, such as: data protection, guarantees on bioethics and transparent administration.

The Charter became legally binding with the entry into force of the Treaty of Lisbon in 2009.

The instrument contains an article specifically addressing children’s rights (article 24). Specifically, the Charter:

  • recognises that EU policies which directly or indirectly affect children must be designed, implemented and monitored taking into account the principle of the best interests of the child.
  • guarantees the right to protection and care, as is necessary for the well-being of children.
  • recognises the need to protect children from abuse, neglect and violations of their rights, and situations which endanger their well-being.

EU Court of Justice

The Court of Justice of the EU hears direct actions that give rise to rulings and preliminary rulings. The most common types of actions taken are interpretation of the law, enforcement of the law, annulment of EU legal acts, ensuring EU action and sanctioning EU institutions.

These actions can lead to legislative reform, for example following a ruling interpreting a point of law.

E.g.: The Court of Justice of the EU made a decision on the interpretation of several provisions of EU instruments in relation to children who are citizens of the European Union and who have a birth certificate issued by the competent authorities of an EU Member State designating two persons of the same sex as the child’s parents (Stolichna obshtina, rayon ‘Pancharevo’ 2021).

EU regulations and directives

The EU has also adopted regulations and directives on children’s rights that must be taken into account by EU Member States when undertaking children’s rights legislative reform.

Regulations are binding legislative acts that must be applied in their entirety across the EU. Such regulations include:

For more information on European law and children, see: Handbook on European law relating to the rights of the child (2022)

Association of South-East Asian States (ASEAN)

ASEAN Human Rights Declaration (2012)

The ASEAN Human Rights Declaration details ASEAN countries’ commitment to human rights. As a Declaration, it is not legally binding on ASEAN States.

Adoption: 2012.

Articles 4, 27.3 and 30.3 refer specifically to children.

The ASEAN Commission on the Promotion and Protection of the Rights of Women and Children is mandated with the promotion and protection of children’s rights.

The ASEAN Convention Against Trafficking in Persons, Especially Women and Children (2015) is a binding legal instrument that protects children in relation to trafficking.

  • Adoption: 2015; Entry into force: 2017.
  • Status of ratification.
  • This convention does not have a specific monitoring body, but it is legally binding on its States Parties.

South Asian Association for Regional Cooperation (SAARC)

The SAARC has enacted conventions for the protection of children. These conventions do not have monitoring bodies, but they are binding on Member States to the SAARC.

For more information see: https://www.saarc-sec.org/