children’s rights legislative reform

Wider international framework for children’s rights – other human rights instruments - Childrens Rights Reform

Wider Framework for Children’s Rights

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Wider international framework for children’s rights – other human rights instruments

This section provides a non-exhaustive list of international instruments and their treaty bodies (where applicable) that play a role in children’s rights standard setting and monitoring and thus can impact children’s rights legislative reform.

Universal Declaration of Human Rights (UDHR)

Adoption by the UN General Assembly: 1948.

The UDHR is a milestone in the history of human rights, as it articulated for the first time the rights and freedoms to which every human being is equally and inalienably entitled.

It acted as the foundation for the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). All three instruments form the International Bill of Human Rights.

The International Bill of Human Rights has served as a foundation for the CRC (Detrick 1999; Nolan 2019)

International Covenant on Civil and Political Rights (ICCPR)

The ICCPR puts forth the civil and political rights of all human beings.

Adoption by the UN General Assembly: 1966; Entry into force: 1976.

Status of ratification

Article 24 ICCPR specifically focuses on children. Children are recognised occasionally in other provisions as well.

The Human Rights Committee is the treaty body of independent experts which monitors the implementation of the Covenant.

One of the General Comments of the Human Rights Committee focuses on children’s rights: General Comment No. 17 on the Rights of the Child (Article 24). The full list of general comments is available in the UN Treaty Body database.

Parties to the ICCPR may also become parties to its two Optional Protocols.

E.g.: The Human Rights Committee has taken decisions that concerned children’s rights.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR puts forth the economic, social and cultural rights of all human beings.

Adoption by the UN General Assembly: 1966; Entry into force: 1976.

Status of ratification.

Article 10 ICESCR contains specific provisions for children, although children are recognised occasionally in other provisions as well.

The Committee on Economic, Social and Cultural Rights (CESCR) is the treaty body of 18 independent experts that monitors the implementation of the ICESCR.

In addition to the reporting procedure, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adoption in 2008, entry into force in 2013) allows the CESCR Committee to:

  • receive and consider communications from individuals claiming that their rights under the Covenant have been violated;
  • undertake inquiries on grave or systematic violations of any of the economic, social and cultural rights set forth in the Covenant;
  • consider Inter-state complaints.
  • The CESCR can receive communications concerning children for violations of their rights under the ICESCR.

E.g.: Josefa Hernández Cortés and Ricardo Rodríguez Bermúdez, nationals of Spain, submitted a communication against Spain on their own behalf and on behalf of their minor daughters, claiming that their eviction amounted to a violation of their rights under article 11 of the ICESCR (right to an adequate standard of living and to be free from hunger). The CESCR found that Spain had violated the authors’ right under article 11. In particular, it recommended that Spain should ensure that its legislation and its enforcement are consistent with the obligations established under the ICESCR (Josefa Hernández Cortés and Ricardo Rodríguez Bermúdez v. Spain 2022).

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The CEDAW covers civil rights, the legal status of women and reproductive rights, and gives formal recognition to the role of culture and tradition in restricting women's enjoyment of their fundamental rights.

Adoption by the UN General Assembly: 1979; Entry into force: 1981.

Status of ratification.

The CEDAW plays a significant role in protecting and promoting the rights of girls.

E.g.: elimination of discrimination against women to ensure equal rights with men in the field of education (article 10 CEDAW).

E.g.: lack of legal effect of the betrothal and marriage of a child (article 16(2) CEDAW).

  • The CEDAW Committee is the treaty body of 23 independent experts that monitors the implementation of the CEDAW.
  • Additionally, in accordance with the Optional Protocol to CEDAW (adoption 1999, entry into force in 2000), the CEDAW Committee is mandated to:
    • receive communications from individuals or groups of individuals submitting claims of violations of rights protected under the Convention and,
    • initiate inquiries into situations of grave or systematic violations of women’s rights. These procedures are optional and are only available where the concerned State Party has accepted them
  • Children have been addressed under CEDAW’s individual communications procedure.

E.g.: A notable case heard by the CEDAW Committee is TPF v Peru (2011, Communication No. 22/2009). In this case, a 13-year-old girl was raped and became pregnant as a result. This news prompted her to attempt suicide, which left her paraplegic and requiring surgery. It was recommended that the pregnancy be terminated before surgery was undertaken. A legal abortion was sought, but it was refused by the hospital. There was no way of petitioning the courts to obtain permission for this procedure to be undertaken. As such, the surgery was cancelled and only took place later, after the complainant spontaneously miscarried. Surgery did not solve the problem, and she remained paralysed. The matter was brought before the CEDAW Committee on the basis that the child’s right to dignity and to be free from cruel and degrading treatment were violated and that the State had failed to protect the rights of the girl. The Committee recommended that laws surrounding termination of pregnancy should be reviewed.

E.g.: The CEDAW Committee heard a communication against Bulgaria, which was filed by a mother on behalf of her child who was sexually assaulted. Finding that Bulgaria had violated the Convention, the Committee included among its remedies a general recommendation to repeal a provision of the Criminal Code, amend an Act on legal aid, amend legislation for an adequate mechanism for the provision of compensation for moral damages to victims of gender-based violence, amend criminal legislation to ensure effective protection from revictimisation, and ensure the enactment and application of policies to address sexual violence against women and girls (CEDAW , Communication No. 31/2011).

The CEDAW and the CRC Committees have adopted one Joint General Comment: Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019) on harmful practices

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

The ICERD specifies the measures that States Parties must take to eliminate racial discrimination.

Adoption by the UN General Assembly: 1965; Entry into force: 1969.

Status of ratification

The Committee on the Elimination of Racial Discrimination is the treaty body of 18 independent experts that monitors the implementation of the ICERD.

In addition to the reporting procedure, the ICERD establishes three other mechanisms through which the Committee performs its monitoring functions:

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The CAT prohibits torture and other acts of cruel, inhuman or degrading treatment or punishment.

Adoption by the UN General Assembly: 1984; Entry into force: 1987.

Status of ratification

Under CAT, States Parties agree to prevent acts of torture in connection with:

  • returning, expelling or extraditing someone to another country where there are grounds to believe they will face torture;
  • arrest, detention and imprisonment;
  • interrogation; and
  • the training of police (civil or military), medical staff, public officials and anyone else who may be involved in the arrest, detention and questioning of a person.
  • The CAT Committee is the treaty body of 10 independent experts that monitors the implementation of the CAT.
  • In addition to the reporting procedure, the CAT establishes three other mechanisms through which the CAT Committee performs its monitoring functions. Once the State concerned has made a declaration to this effect under article 22 of the CAT, the CAT Committee may also:
  • Children have been addressed within these mechanisms.

The CAT Committee has dealt with applications where children have been threatened with deportation, and the Committee has been convinced that such deportation would be likely to result in them being subjected to torture. The F.B. v Netherlands case (F.B. v The Netherlands, Communication No. 613/2014) concerned a girl who objected to being returned to Guinea because she may be subjected to female genital mutilation. The Committee found that her return would constitute a breach of her rights under article 3 of the Convention.

The Optional Protocol to the Convention, which entered into force in 2006, created the Subcommittee on Prevention of Torture (SPT).

Convention on the Rights of Persons with Disabilities (CRPD)

The CRPD aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Adoption by the UN General Assembly: 2006; Entry into force: 2008

Status of ratification

  • It is the first human rights instrument to be ratified by a regional integration organisation: the European Union.
  • The Convention includes a specific provision on children with disabilities (article 7), which obliges States Parties to take all necessary measures to ensure the full enjoyment of children with disabilities of all human rights and fundamental freedoms on an equal basis.
    • Article 7 also recalls the principle of the best interests of the child, the right to be heard, and the provision of disability- and age-appropriate assistance for the realisation of their right to be heard.
    • Children are also referred to in multiple articles throughout the CRPD.

The CRPD Committee is the treaty body of 18 independent experts which monitors the implementation of the CRPD.

The Optional Protocol (adopted in 2006, entry into force in 2008) also allows the CRPD Committee to:

The CRPD plays an important role in the protection of children with disabilities.

In acknowledgement of their overlapping mandate, the CRPD Committee and the CRC Committee made a Joint Statement on the Rights of Children with Disabilities in 2022.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW)

The CMW focuses on the protection of the rights of migrant workers and members of their families.

Adoption by the UN General Assembly: 1990; Entry into force: 2003.

Status of ratification

The Committee on the Protection of All Migrant Workers and Members of Their Families is the treaty body of fourteen experts that monitors the implementation of the CMW.

The CMW contains provisions that directly concern children, providing children of migrant workers the right to a name, to registration of birth and to nationality (article 29), the basic right of access to education on the basis of equal treatment (article 30). States Parties should also take measures to facilitate the integration of children of migrant workers in local schools, including by teaching them their migrant tongue and culture and providing special education schemes in the mother tongue of migrant workers' children, if necessary, in collaboration with the States of origin (article 45). The CMW also provides that States Parties should pay attention to problems that may arise for spouses and children from the deprivation of liberty of a migrant worker (article 17).

The CMW does not currently have an operative Inter-state communications procedure or an individual complaint mechanism.

  • Article 76 of the CMW gives the CMW Committee competence to receive and consider communications by a State Party alleging violations of the Convention by other States Parties who made the necessary declaration under article 76.
    • This Inter-state complaint mechanism will become operative when 10 States Parties have made the necessary declaration under article 76.
  • Article 77 of the CMW gives the CMW Committee competence to receive and consider individual communications alleging violations of the Convention by States who made the necessary declaration under article 77.
    • This individual complaint mechanism will become operative when 10 States Parties have made the necessary declaration under article 77. 

Although the individual communications procedure and the Inter-state communications procedure are yet to be operative, the CMW plays a significant role in the promotion and protection of children’s rights in the context of migration.

The CMW and the CRC Committees have adopted two Joint General Comments:

International Convention for the Protection of All Persons from Enforced Disappearance (CED)

The CED aims to criminalise and combat the human rights violation of enforced disappearance. It considers “enforced disappearance” as any form of deprivation of liberty, which is carried out by agents or with the authorisation of a State, followed by a refusal to acknowledge the deprivation of liberty and the whereabouts of the person concerned.

Adoption by the UN General Assembly: 2006; Entry into force: 2010.

Status of ratification.

  • Article 25 of the CED provides that States Parties shall take the necessary measures to prevent and punish under criminal law the wrongful removal of children who themselves or their parents have been subjected to enforced disappearance, as well as taking measures to search, identify and find these children. It also provides for additional safeguards to the child’s identity in the alternative care system, and recalls that the best interests of the child shall be a primary consideration as well as the child’s right to be heard.

The CED Committee is the body of ten independent experts which monitors the implementation of the CED.

The CED Committee can also:

  • take urgent action (article 30 CED).
  • receive individual communications from victims of violations of the Convention by a State Party (article 31 CED).
  • receive communications in which a State Party claims that another State Party is not fulfilling its obligations under the Convention; so-called Inter-state communications (article 32 CED).
  • The CED is also relevant in relation to children’s right to be protected against enforced disappearance.

The CRC Committee, the CED Committee, the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, the Special Rapporteur on the sale, sexual exploitation and sexual abuse of children, the Special Rapporteur on Trafficking in Persons, especially women and children, and the Working Group on Enforced or Involuntary Disappearances issued a Joint Statement in 2022 to promote a human rights-based and gender-sensitive approach to preventing and eradicating illegal intercountry, sometimes referred to as international, adoptions by identifying the rights which are violated through illegal intercountry adoptions and clarifying States’ obligations in this respect under international human rights law.

Children's Rights Soft Law Instruments

There are number of soft law children’s rights instruments that can influence States’ law and policies and provide an interpretation/elaboration of binding standards and norms, including the CRC. 

Of particular relevance would be the UN guidelines and rules such as the ones developed in the area of justice for children and alternative care: