WHY

Contents

Revisiting reservations and declarations and promoting additional ratifications

Reservations

Legislative reform can provide an opportunity to reconsider and subsequently withdraw reservations to the CRC (and other international human rights instruments relevant to the protection and promotion of children’s rights).

Under article 19 of the Vienna Convention of the Law of Treaties, a State Party can formulate a reservation to a treaty. One of the conditions is that the reservation must not be incompatible with the object and purpose of the treaty. This is recalled in article 51 CRC.

According to the CRC Committee full and unqualified respect for children’s rights can only be achieved if States withdraw their reservations (CRC GC 5, para. 13).

The CRC Committee frequently issues recommendations that States Parties consider withdrawing their reservations.

E.g.: Argentina “enters a reservation to subparagraphs (b), (c), (d) and (e) of article 21 of the Convention on the Rights of the Child and declares that those subparagraphs shall not apply in areas within its jurisdiction because, in its view, before they can be applied a strict mechanism must exist for the legal protection of children in matters of inter-country adoption, in order to prevent trafficking in and the sale of children.” The CRC Committee encourages Argentina to withdraw this recommendation (COB Argentina 2018, para. 5).

E.g.: Saudi Arabia enters reservations “with respect to all such articles as are in conflict with the provisions of Islamic law”. The CRC Committee expresses concern about this general reservation giving precedence to sharia law over international treaties, and recommends the State Party review the general nature of the reservation with a view to withdrawing it (COB Saudi Arabia 2016, para. 6)

Declarations

Legislative reform can also provide an opportunity to reconsider declarations.

States Parties can make declarations to the CRC to clarify their understanding of a particular provision. Declarations do not exclude or modify the legal effect of a treaty.

However, declarations may have the effect of a reservation. If a declaration seeks to limit a State Party’s obligation under the CRC, then the declaration constitutes a reservation (Schabas, 1996).

When declarations seek to limit States Parties’ obligations under the CRC, the CRC Committee encourages them to withdraw these declarations.

E.g.: Algeria made the following declaration: “The provisions of paragraphs 1 and 2 of article 14 shall be interpreted by the Algerian Government in compliance with the basic foundations of the Algerian legal system, in particular:

With the Constitution, which stipulates in its article 2 that Islam is the State religion and in its article 35 that ‘there shall be no infringement of the inviolability of the freedom of conviction and the inviolability of the freedom of opinion’;
With Law No. 84-11 of 9 June 1984, comprising the Family Code, which stipulates that a child's education is to take place in accordance with the religion of its father.”

The CRC Committee has stated that this declaration amounts to a reservation (COB Algeria 2012, para. 9). It has recommended that Algeria should review its interpretative declarations with a view of withdrawing them (COB Algeria 2012, para. 10).

E.g.: Belgium made the following declaration: “With regard to article 2, paragraph 1, according to the interpretation of the Belgian Government non-discrimination on grounds of national origin does not necessarily imply the obligation for States to automatically guarantee foreigners the same rights as their nationals. This concept should be understood as designed to rule out all arbitrary conduct but not differences in treatment based on objective and reasonable considerations, in accordance with the principles prevailing in democratic societies.” The CRC Committee has recommended that Belgium consider withdrawing its declaration regarding article 2 CRC, since it essentially implies a limitation of the CRC provision (COB Belgium 2019, para. 6).

See list of reservations and declarations to the CRC.

Ratifications

When States Parties undertake legislative reform, they have the opportunity to consider ratification of other international human rights instruments and other international instruments, and incorporate them into national law. Therefore, legislative reform can also be an opportunity to revisit the ratification of other international human rights and related instruments.

The CRC Committee urges States Parties to ratify the international core human rights instruments and encourages them to ratify other relevant international instruments (CRC GC 5, para. 17; see also e.g. art. 11 (2) CRC implicitly referring to the Hague Convention on matters of Private International Law, in particular the Convention on the Civil Aspects of International Child Abduction).

The ratification of international instruments is also relevant in cases where these instruments contain provisions that are more conducive to the realisation of children’s rights than the CRC, as art. 41 CRC provides that the States Parties must then apply these provisions.

Specifically, and importantly, legislative reform is an opportunity to consider ratification of the three optional protocols to the CRC, if not done already.