States Parties are under a legal obligation to implement the CRC.

• This reflects the pacta sunt servanda principle: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Article 26 Vienna Convention on the Law of Treaties).

According to article 4 CRC:

• “States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention. With regard to economic, social and cultural rights, States shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”

It is a legal obligation for States that have ratified the CRC to “undertake all appropriate legislative […] measures for the implementation of the rights recognised” in the CRC.

Legislative reform is one of the necessary entry points and strategies to implement and advance children’s rights as enumerated in international law.

Incorporation of treaty provisions into national legislation is the most traditional approach to the implementation of international human rights instruments, such as the CRC (CRC GC 5, para. 20).

In some jurisdictions, it requires domestic legislation to make children’s rights enforceable and justiciable.

According to the CRC Committee, ‘incorporation’ should mean that the provisions of the CRC can be directly invoked before the courts and applied by national authorities and that in case of conflict between domestic legislation and the CRC, the latter should prevail (CRC GC 5, para. 20 with reference to article 27 Vienna Convention on the Law of Treaties).

According to the CRC Committee, States Parties are obligated:

• to undertake comprehensive and rigorous review of all domestic legislation to ensure full compliance with the CRC (CRC GC 5, para. 18).

• to ensure that the provisions of the CRC are given legal effect within their domestic legal systems (CRC GC 5, para. 19).

The CRC Committee encourages States Parties to enact and implement domestic legal provisions that are more conducive to the realisation of the rights of the child than those contained in the CRC, in the light of article 41 CRC (CRC GC 5, para. 23).

The legal implementation of the CRC takes different forms depending on the States Parties’ legal systems and governance structure (Kilkelly 2019; Kilkelly et al 2021; Hoffman and Thorburn Stern, 2020)

• There is no single way to incorporate the CRC:
  • Legal measures to incorporate the CRC vary and include forms of direct incorporation and indirect incorporation.
    • Direct incorporation of the CRC, including measures to promulgate special enabling legislation, aims to incorporate the CRC as a whole, or undertake gradual incorporation of the CRC.
      • This form of incorporation is claimed to be most conducive to the comprehensive and substantive implementation of the CRC (Kilkelly 2019).
      • It can promote the recognition of the recommendations of the CRC Committee (e.g. COBs and General Comments) and soft legal instruments related to the CRC (e.g. UN resolutions and regional guidelines and recommendations), which wield strong influence and provide for specific authoritative guidance on how States can fulfil their legal obligations under human rights instruments (see also section. This potentially ‘hardens’ the legal meaning of these soft law instruments and recommendations.
    • Indirect incorporation is when generally formulated legislative provisions prescribe the incorporation of children’s rights into domestic legislation or the taking into account of the CRC in other legal mechanisms (e.g. in case law or in policies or professional standards and practice).
  • Given the variety of legislative and administrative systems operating in the world, there are different methods by which States Parties can ensure that children’s rights, as set out in the CRC, will be enforceable by law.

Moreover, a combination of legal and non-legal measures is required; that is: legislative measures of incorporation should be accompanied by other measures to support incorporation, which are necessary to achieve the effective and far-reaching implementation of the CRC (CRC GC 5, para. 21).

• These measures include institutional capacity-building and reform, awareness raising and children’s rights education, comprehensive national strategies for children’s rights, sustainable policies for children, coordination, child rights strategic litigation, oversight and monitoring and evaluation.

Full legal implementation of the CRC is the ultimate goal and State Party obligation under international law.