WHY
Contents- Introduction
- Ensuring compliance with article 4 CRC through legal incorporation
- General benefits of the legal incorporation of the Convention on the Rights of the Child
- Promotion of justiciability of rights and effective remedies
- Making children’s rights visible at the national level
- Revisiting reservations and declarations and promoting additional ratifications
- Why should States undertake children’s rights legislative reform?
Promotion of justiciability of rights and effective remedies
Legislative reform can promote the justiciability of the CRC and its provisions.
According to the CRC Committee, domestic legislation is needed to ensure that the provisions of the CRC are given legal effect within the domestic legal systems (CRC GC 5, para. 19).
- The CRC Committee underscores that all children’s rights (i.e. economic, social and cultural rights, as well as civil and political rights) must be regarded as justiciable (CRC GC 5, para. 25 and para. 6).
E.g.: Article 21A of the Constitution of India provides that the State should provide free and compulsory education to all children between 6 and 14 years old in such manner as the State may, by law, determine. This provision is included in Part III of the Constitution (Fundamental Rights). Articles 32 and 226 of the Constitution confer the right to enforce fundamental rights against the State in the Supreme Court and high courts. As a result, the right to education in Article 21A is justiciable (Matthey-Prakash, 2019).
Justiciability of children’s rights is ultimately crucial for the implementation of the CRC (Kilkelly, 2019).
Legislative reform can subsequently provide domestic remedies for rights violations.
- According to the CRC Committee, for children’s rights to have meaning, effective remedies must be available to redress violations (CRC GC 5, para. 24).
- Legislative reform that incorporates the CRC but does not make its provisions justiciable falls short of realising children’s rights.
The CRC Committee provides that it is essential domestic legislation sets out detailed entitlements in order for remedies against rights violations to be effective (CRC GC 5, para. 25).
Domestic legislation should also ensure access to “effective, child-sensitive procedures available to children and their representatives” (CRC GC 5, para. 24), which includes: “the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance” (CRC GC 5, para. 24).
Domestic legislation can take away legal and other barriers that children encounter when access to justice is concerned, including legal barriers preventing children from having legal capacity or standing (e.g. due to issues related to birth registration, lack of legal capacity, statutory limitations), and facilitate access to justice for children
For more information: Human Rights Council, 2013 and Liefaard 2019See also
The following additional benefits of using legislative reform for the promotion of the justiciability and effective remedies can be identified:
- Legislative reform can strengthen the judiciary’s capacity and develop a judiciary that is independent and committed to the rule of law. An accessible, fair, competent and effective judicial system is necessary for the implementation of legislation.