International human rights for children: a Canadian accounting.
--UN Declaration of the Rights of the Child, 1924
According to a 1995 United Nations report, by the year 2000, more than 50 percent of the world population would be under the age of 15. Yet, the rights of children, as a special category of persons, are relatively new in international law. Prior to World War II, there were few developments protecting children's rights. However, with the creation of the United Nations and the proliferation of detailed international human rights instruments, children's rights became more conceptually and legally defined. Unfortunately, these developments are plagued by the same downfalls of human rights generally--a lack of effective enforcement mechanisms, and a constant struggle to maintain relevance in a changing international environment. This article will provide a summary of some of the key developments of children's rights internationally, including the 1989 United Nations Convention on the Rights of the Child (CRC). Current international children's rights will then be set against the issue of child soldiers and 'sex tourism'. We will then provide a brief overview of what Canada has done to support the CRC.
The first attempt to codify international rights for children was undertaken by the League of Nations in 1924 with the Declaration of the Rights of the Child. This instrument stated that "[hu]man kind owes to the child the best that it has to give"; however, provided ambiguous rights and did little more than lay the foundations for future instruments. After the League dissolved and the United Nations was created in 1945, the issue of children's rights again became relevant. Eleven years following the adoption of the Universal Declaration of Human Rights, the UN General Assembly adopted a second UN Declaration of the Rights of the Child in 1959. This document included ten principles providing for the protection of children--defined as persons up to the age of 18 years.
One significant weakness common to both the 1924 and 1959 Declarations was that neither was legally binding on state parties. Declarations are adopted by consensus at the UN General Assembly and do not impose upon states any form of binding authority. Therefore, while the 1959 Declaration of the Rights of the Child did include provisions urging state parties to implement appropriate legislation for enforcement, both documents serve only as general statements of international standards. This issue, however, was remedied with the Convention on the Rights of the Child (CRC). As of June 2004, the Convention had been ratified by 192 countries.
Convention on the Rights of the Child
The CRC came into force on September 2, 1990, and as all conventions, first required state parties to become signatories, which indicates their intent to be bound by the objectives of the convention. Following the signature, each state must then ratify the convention which acts to formally indicate that they are legally bound. The CRC is unique internationally as the most rapidly ratified document in UN history, with only Somalia and the United States having not ratified. While the CRC is the most comprehensive international statement of children's rights, it is also plagued by several weaknesses.
Challenges confronting the enforcement of the CRC
The first weakness of the CRC is the mechanism for enforcement, which is based on state self-reporting. This method of monitoring requires each state to submit a report every five years to the Committee on the Rights of the Child (the Committee). These reports, however, aside from consistently being delayed, persistently do not reveal an accurate picture of children's experiences within each state. Moreover, the Committee is empowered to make non-legally binding suggestions and recommendations to the state, as well as to submit all information to the UN General Assembly.
A second weakness is that until 1984 and the 'Beijing Rules' (formally known as the "Standard Minimum Rules for the Administration of Juvenile Justice"), neither the CRC nor any other UN document made reference to the handling of juvenile justice. And while the Beijing Rules have been incorporated into the 1998 CRC, there is still considerable disparity on how various aspects of the rules are interpreted by member states (see Winterdyk, 2002).
Another weakness faced by the CRC, prevalent within international law, is the struggle to reflect the actual experiences of the individuals the law seeks to protect. Most international law has been influenced by a post World War II environment that reflected the experiences and the needs of adult males in Western nations. These foundations, therefore, produce very narrow standards. When transposing these principles on other groups, such as children, there is a danger that laws will not adequately provide for their particular experiences and needs for protection. Two instances of children's unique experiences are the growing use of child soldiers and children in the sex trade/sex tourism industry. For example, it is currently estimated that over 300, 000 child soldiers are actively involved in wars taking place across the globe. Once coerced into armed forces, child soldiers are subject to extreme physical and emotional abuse and made to commit violent and inhumane acts on others with the threat of severe punishment or death for failure to comply. It is clear, therefore, that these children are in need of international protection. In response, the UN developed the first of two optional protocols to the CRC, the Optional Protocol on the involvement of children in armed conflicts.
In addition, Amnesty International estimates that the child sex trade is a multi-billion dollar industry, drawing in over one million children each year. While no country seems to be immune to this plight, a number of the Pacific Rim countries have been targeted for their blatant sexual exploitation of children. For example, one report noted that the main source of income on some Thai beaches aside from the hotels is sex tourism involving children. This issue necessitated the passage of the second protocol to the CRC, the Optional Protocol on the sale of children, child prostitution and child pornography.
Another issue pertains to the fact that many states have responded to the inconsistent age requirements in both the CRC and the Protocols (adopted by the General Assembly in May 2000 and entering into force on February 12, 2002 and January 18, 2002 respectively) by making reservations. Reservations are typically used by states after ratification to limit their responsibility, for instance by asserting that they are not bound to one or several articles of the convention.
Finally, the CRC is intended to serve as a guideline on state parties, therefore, the principles allow for considerable latitude and interpretation and consequently notable diversity between countries. In fact, in a recent review of member states of the CRC, Hamilton (2002:1) concluded that the member states have "been notoriously slow at implementing Articles 37, 39, and 40"--which pertain to the treatment of young persons, rehabilitation and reintegration strategies, as well as the general administration of juvenile justice--and that all states could he criticized for their "failure to fully implement them." So, on its 60th Anniversary, how has the UN's CRC fared in Canada?
Canada's response to the CRC
Although the CRC was ratified by Canada on December 13, 1991, it is not automatically part of our domestic law. However, Canadian courts do regularly refer to it (and other international conventions) when interpreting domestic law. In its first report to the UN in June of 1995, it was noted that in 1991 the Minister of Health and Welfare created the Children's Bureau which was established to ensure "consistency and coordination for all federal programs and policies for children" (General measures ..., 2003). The first report noted that Canada's division of responsibilities between federal, provincial and territorial governments over children poses a number of pragmatic complications in implementing the Convention. To this end, the federal government provided funding to the Human Rights Directorate of Multiculturalism and Citizenship to promote the Convention through various public education initiatives ranging from newspaper articles to an animated film series. Other highlights from the report include the following:
* There is no general age of majority which applies to all contexts. Age limits are set according to its stated purposes (e.g., minimum age in order to vote is 18; technically cannot serve as a witness if under the age of 14; youth under the age of 17 are subject to special labour laws, etc.). With regard to articles 21 and 27 of the Convention, the UN response noted that "the best interests of the child and respect for the views of the child, have not always been adequately reflected in national legislation and policy-making." For example, although s. 7 of the Canadian Charter of Rights and Freedoms guarantees everyone the right to life, liberty and security, the section has not been applied to children before birth.
* The UN response noted Canada still needed to improve the process of processing refugees and immigrants involving children. The lengthy delays were described as regrettable. The UN committee also expressed concern by the "emerging problems of child poverty, especially among vulnerable groups."
* The government established the National Council for Crime Prevention which was specifically designed to better implement the Convention provisions for young offenders. The government also established the Family Support Enforcement Fund, designed to promote and protect children's rights.
* Other concerns identified by the UN Committee involved the continued use of corporal punishment in some schools, increased incidence of suicide among young people, and the continued plight of vulnerable and disadvantaged groups such as Aboriginal children.
* The articles which were identified as deserving greater attention pertained to non-discrimination and best interests of the child--sections 2, 3, and 12 respectively. Other articles identified include 19, 22, 28, 37 and 44. (Articles 19, 28 and 37 pertain to the child's right to physical integrity and use of physical punishment of children in families; Article 22 relates to the protection of refugees and immigrant children, including deportation proceedings; and Article 44 pertains to the dissemination, in various forms, of the State's report to the public.)
Nevertheless, in its response, the UN acknowledged Canada's commitment to the Convention and that Canada played a major role in drafting the CRC.
Canada's second report on the Convention was submitted on April 26, 2001 and was reviewed in September 2003. During the review, it was noted that a number of subsequently significant steps have been made to reinforce Canada's commitment to the Convention. They include the following:
* In July 2002, new laws were passed to protect children against exploitation through prostitution and child pornography especially through the Internet.
* Amendments to the Immigration and Refugee Protection Act extend rights to children and include fines up to $1 million and potential imprisonment for life for trafficking young persons.
* In 2003, the new Youth Criminal Justice Act was passed. It promotes greater use of non-court measures and encourages community-based sentences for low risk offenders, in accordance with the Convention.
* Even though the number of low-income families with children has dropped from 16 percent in 1996 to 11 percent in 2000, the federal government through its National Child Benefit program will supplement low-income families by $965 million per year by 2007.
* Although there has been a program in place since 1995 to provide Aboriginal children with a 'head start', in 2002 the federal government raised its financial commitment to the program.
* In 2004, the Sex Offender Information Registration Act was passed allowing the law enforcement agencies to monitor and access information on convicted sex offenders and enabling the establishment of better socio-legal services geared to the protection of children. (Canada's next report is scheduled for January 2009).
A review of our national and international news headlines will reveal that the plight of Canada's and the world's children has far from been alleviated. Starting in the new millennium, there has been increasing debate about the value of the UN, its merits, and its ability to impact social justice. However, relative to what is being experienced elsewhere in the world, Canada deserves to be commended for how it has attempted to embrace the CRC (and related Protocols). Yet, as reflected in the response by the UN Committee, there is notable room for improvement, and the key would appear not to rest just on policy directives but creating broader and richer understanding and education, and ultimately support by the populace.
General measures of implementation. 2003. Ottawa: Human Rights Program. http://www.pch.gc.ca/progs/pdp-hrp/docs /crc/fd_e.cfm retrieved April 12, 2005.
Hamilton, C. 2002. "Juvenile justice: The role of statistics and public perception." Paper prepared for the Office of the High Commissioner for Human Rights, Geneva.
Winterdyk, J. (Ed.). 2002. Juvenile justice systems: international perspectives (2nd ed.). Toronto: CSPI.
[check] In July 2002, new laws were passed to protect children against exploitation through prostitution and child pornography especially through the Internet.
[check] Amendments to the Immigration and Refugee Protection Act extend rights to children and include fines up to $1 million and potential imprisonment for life for trafficking young persons.
[check] In 2003, the new Youth Criminal Justice Act was passed. It promotes greater use of non-court measures and encourages community-based sentences for low risk offenders, in accordance with the Convention.
[check] Even though the number of low-income families with children has dropped from 16 percent in 1996 to 11 percent in 2000, the federal government through its National Child Benefit program will supplement low-income families by $965 million per year by 2007.
[check] Although there has been a program in place since 1995 to provide Aboriginal children with a 'head start', in 2002 the federal government raised its financial commitment to the program.
[check] In 2004, the Sex Offender Information Registration Act was passed allowing the law enforcement agencies to monitor and access information on convicted sex offenders and enabling the establishment of better socio-legal services geared to the protection of children. (Canada's next report is scheduled for January 2009).
John Winterdyk, PhD is a professor with the Department of Justice Studies at Mount Royal College in Calgary, Alberta and an adjunct professor at St. Thomas University in Fredericton, New Brunswick. Kerry-Lynn Okita is currently completing her LLB at the Faculty of Law, University of British Columbia.