REFURBISHING CHILD RIGHTS AS HUMAN RIGHTS IN

INTERNATIONAL LEGAL PERSPECTIVE

C.E.Pratap

“The hallmark of culture and advance of civilisation consists in the fulfillment of our obligation
to the young generation by opening up all opportunities for every child to unfold its personality
and rise to its full stature, physical, mental, moral and spiritual. It is the birth right of every
child that cries for justice from the world as a whole.” - Justice
V.R.Krishna Iyer

Introduction

In a civilised society the importance of child welfare cannot be underestimated because

the welfare of the entire community, its growth and development depends on the health of its

children. Children are considered as a supremely important national asset and the future

paramount well-being of the nation depends on how its children grow and develop. The children

signify eternal optimism in the human being and always provide the potential for human

development. In recent years the children's rights movement has gathered considerable strength

and the adoption of international legal standards has been viewed by many as a particularly

useful means to entrench in national law the notion that children have rights. In general those

rights overlap significantly with all human rights, but they also extend to a variety of special

measures to which children are entitled by virtue of their special vulnerability. Human rights are

certain rights that are vested in every person by virtue of their being members of human family.

Children are human beings and should be treated as such according to all the declarations on

human rights. In the twentieth century, however, the recognition was growing that children need

special protection and support, if human rights are truly to be guaranteed to them as well.
Assistant Professor (Law), Saveetha School of Law, Saveetha University, Chennai – 600 077, Tamil Nadu


E-mail: justicepratap@yahoo.co.in

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 Children have human rights like any human being. In addition to the general human

rights they also have special rights because of their status of mental and physical development

due to age. Human rights are natural individual rights that precede the authority of the State.

They are the inherent rights of the human person and cannot be taken away by anyone or be

given up by the holder of the rights. Human Rights today have acquired legitimacy and

significance in external relations of the world community but also in the domestic relations

between the State and its citizens. 1 Human rights are to be exercised and enjoyed by all people

without which people cannot fully develop as human beings. Human rights allow us to develop

and use our intrinsic qualities, intelligence, talents and conscience to satisfy our spiritual and

material needs. All children have rights that emanate from their humanity. While no form of

government can effectively be defined as maximizing the provision of human rights and

children’s rights, there is a strong basis for arguing that democratic forms are more likely to do

so in the long run than other governmental forms. There are a fair number of nations that at this

juncture appear to be reasonably well oriented to protecting human and children’s rights, but

attention to a little bit of history should keep one from becoming complaisant about the prospect.

With regard to human rights and children’s rights, attention must be given to providing, as much

as possible, for the protection for all persons, and presumably this can happen most dependably

in a democracy.2 Thus children are the very soul of any nation.

Children’s Rights in International Law

The evolution of international standards to protect children is a product of global

modernity. The human rights approach to development is increasingly talked about and is

becoming a central element in development discourse. UNICEF uses rights language and

increasingly a rights based approach since the adoption of the Convention on the Rights of the

2
Child in 1989. Children’s rights in International Law covers a bundle of rights for children under

various international agreements and conventions. Among these instruments the importance of

rights of children lies in the U.N.Convention on the Rights of the Child which is considered as

the magna carta of child rights.

The Convention on the Rights of Child 1989

The Convention on the Rights of the Child 1989 (CRC) is the principal children’s treaty

encompassing a full range of political, economic, social and cultural rights. The roots of the

United Nation Convention on the Rights of the Child can be traced back to 1923 when Eglantyne

Jebb, founder of Save the Children, summarized the rights of children. The Convention aims at

protecting children from discrimination, neglect and abuse. The recognition of the special rights

of children within the broader human rights discourse led to the adoption of Convention on the

Rights of the Child.3The Convention embodies four general principles for guiding

implementation of the rights of the child in a human rights perspective viz: (i) non-discrimination

ensuring equality of opportunity, when the authorities of a State take decisions which affect

children must give prime consideration to the best interests of the child; (ii) the right to life,

survival and development which includes physical, mental, emotional, cognitive, social and

cultural development; (iii) children should be free to express their opinions; (iv) such views

should be given due weight taking the age and maturity of the child into consideration.4

The Convention accepts without question that children are rights holders; part of the

Convention is to educate children and others about children’s rights. It makes children’s rights

visible and an object of the study. The Convention on Rights of Children is a lens through which

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all can look at the state of world’s children. 5 The CRC is, therefore, founded on the following

principles, which build the foundation for all children’s rights:

The right to equality: No child may be discriminated against on the basis of race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other

status.

The best interest of the child: Whenever decisions are being taken which may have an impact on

children, the best interest of the child has to be taken into account at all stages. This applies to

the family as well as to state action.

The right to life and development: Every Member State has to ensure, to the maximum extent

possible, the survival and development of the child by, interalia, providing access to health care

and education, and by protecting the child from economic and social exploitation.

Respect for children’s own views: Children should be respected and taken seriously, and they

should be involved in decision-making processes according to their age and maturity.

The Convention on Rights of Child follows a holistic approach to children’s rights,

recognising that the rights anchored in the Convention are indivisible and interrelated, and that

equal importance must be attached to each and every right contained therein. This Convention is

regarded as the most successful international instrument which was developed from the 1959

Declaration of the Rights of the Child. The Convention on Rights of Child is broader and more

specific in nature covering all the provisions ensuring human rights to the children within its

legal gamut. The Convention is based on different existing international human rights

instruments, recognized the basic rights to which children are entitled and sets forth the

minimum standards that governments are required to meet in all aspects that affect the lives and

welfare of children. It collects rights previously outlined in separate instruments into a single but

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comprehensive document, elaborating and developing in the light of the special needs of

children. The Convention on Rights of Child represents the zenith of humanity’s efforts to

guarantee children the right to healthy survival — to development, education and healthcare, and

freedom from physical, mental and sexual abuse or exploitation. Furthermore, the CRC

guarantees children the right to participate meaningfully in their own destiny. The CRC is also

significant because it enshrines, for the first time in binding international law, the principles upon

which adoption is based, viewed from the child’s perspective.6 The legislative intent of treating

child rights as human rights is the outcome of international conventions culminating from

various international instruments which has four broad aims viz, the 4 ‘P’s: (i) Protection, (ii)

Prevention, (3) Provision and (4) Participation. All these aims have equal importance in a holistic

approach to the rights of the child.

General measures of implementation referred in the Convention on Rights of Child 7 interalia

cover the thematic issues of bringing domestic legislation and practice into full conformity with

the principles and provisions of the Convention. This includes an obligation to make remedies

available and accessible to children in cases where the rights recognised by the Convention have

been violated. The Convention foresees the granting of international assistance or development

aid for programmes geared at children where such cooperation is needed to properly implement

the provisions of the CRC and thereby advance the social, economic and cultural rights of

children. Raising awareness of the CRC is another core issue. The State Parties are obliged to

make the principles and provisions of the Convention widely known to both adults and children.

The Convention lists basic human rights, civil and political rights, economic and social

rights, cultural rights, family rights and protective rights. Ratifying countries have agreed to

undertake all legislative, administrative and other measures for the implementation of the

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Convention. Although some countries have incorporated the Convention into their domestic law

the primary method of enforcing the Convention is political administrative not judicial. Each

country is required to prepare reports on its progress in implementation to the U.N. Children’s

Rights Committee. There is a symbiosis between the U.N.Convention and other international

instruments concerning children’s well-being. The principles in the Convention have begun to

inform the concept of welfare. The Convention accepts the importance of children’s welfare

therefore the rights it recognises must be important for welfare which is the penumbra of human

rights. Key accomplishments of the CRC have been described as five-fold.  It creates new rights

for children under international law that previously had not existed, such as the child’s right to

preserve his or her identity8, the rights of vulnerable children like refugees to special protection 9,

and indigenous children’s right to practice their culture. 10  In some instances, this innovation

takes the form of child-specific versions of existing rights, such as those in regard to freedom of

expression11 and the right to a fair trial. 12 In addition, the CRC enshrines in a global treaty rights

that hitherto had only been found in case law under regional human rights treaties (e.g.,

children’s right to be heard in proceedings that affect them).13

Regional Documentation in an International Perspective

African Charter on the Rights and Welfare of the Child 1990

The African Charter on the Rights and Welfare of the Child (ACRWC), the first regional

treaty on children’s rights, builds on the 1979 Declaration on the Rights and Welfare of the

African Child, but most of its provisions are modelled after those of the CRC. “The main

difference lies in the existence of provisions concerning children’s duties 14, in line with the

African Human Rights Charter.”

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The European Convention on Human Rights 1950

The Convention for the Protection of Human Rights and Fundamental Freedoms, also

known as the European Convention on Human Rights (ECHR), the first international human

rights agreement to establish supervisory and enforcement machinery, obliges States Parties to

“secure everyone within their jurisdiction” the rights and freedoms it sets forth.15  The ECHR

uses throughout the term “everyone”; as a result, children have successfully brought suit either

on their own behalf or as co-applicants with their parents. Although the European Convention

dates from a time when children were not seen as having rights but objects of welfare or subject

in their parents’ domain it has been instrumental in many developments of children’s rights. The

recognition of the rights for parents has also lead to greater consideration of children’s interests.

Many of the changes to the law relating to the State care of children in United Kingdom are a

result of litigation under the Convention. Rights to contact with children in care, due process in

determining rights for parents and children access to records and reduction of delays in

children’s proceedings all became the focus for reform. 16 The European Convention further

embodies a provision to uphold the human rights in the interest of children in relation to their

parents. Protocol No. 7 to the ECHR provides that while spouses enjoy equality of rights and

responsibilities in their relations with their children, this does not prevent States from taking such

measures as are necessary in the interests of the children.17

Child Rights vis-à-vis Human Rights

The idea of human rights stems from the postulate that certain rights self-evidently

pertain to individuals as human beings because they existed in the state of nature before mankind

entered civil society. According to John Locke the idea of human rights precedes organized

society and it is mainly regarded more as a philosophical and a moral conceptual than legal one. 18

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The principle of non-discrimination19 under Universal Declaration of Human Rights (UDHR) is

the heart of the human rights discourse. It calls for the global application of all human rights to

all peoples irrespective of their difference. It is evident from this principle that there shall be no

discrimination in providing rights to children and treating them in par with other human beings.

Therefore in the viewpoint of this universal international legal provision the child right has to be

construed in a human rights perspective. The Convention on Rights of Child takes a different

normative stance of rather than simply refer to other international instruments to construe

Convention obligations. The Convention on Rights of Child recognizes that all human rights are

indivisible and interdependent. The Convention requires that no child will be subjected to torture

or other cruel, inhuman or degrading treatment or punishment 20 and that every child deprived of

liberty will be treated with humanity and respect for the inherent dignity of the human person. 21

Conceptually, such an approach implies that the Convention deems itself competent to construe

general human rights obligations concerning children. As mentioned above human rights are

universal and all human beings are entitled to them, irrespective of his or her position in a

society. Distinction based on race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth or other status is prohibited. From this it can be

understood that distinction based on age is also not permitted. In other words children have all

the rights enshrined in the international human rights instruments because of being human. They

are neither the possession of their parents nor their guardians, nor that of the state, nor are they

people in the making. Children require special care and protection because of their mental and

physical immaturity. They need to be brought up in an environment capable of providing care

and affection. Taking this into consideration Universal Declaration of Human Rights recognized

the special care and protection of childhood.22

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 The interaction between Human Rights Law and International Humanitarian Law has

received a great deal of scholarly attention. The child’s rights is regarded as human right and the

same is refurbished in several international documents including that of the special measure and

protection of children also as recognized in International Covenant on Civil and Political Rights 23

and International Covenant on Economic, Social and Cultural Rights24 respectively. Human

rights treaties are often followed by ‘optional protocol’, additional legal mechanisms that

complement and add to the treaty. A protocol may be on any topic relevant to the original treaty

and is used to further address something in the original treaty, address a new or emerging

concern or add a procedure for the operation and enforcement of the treaty such as adding an

individual complaints procedure. The Optional Protocols to the Convention on the Rights of the

Child provide more detail and expand obligations beyond those under the original treaty. A

protocol is optional because it is not automatically binding on State that has already ratified the

original treaty. The obligations in the protocol are additional and may be more demanding than

those in the original convention, and so States must independently choose whether or not to be

bound by a protocol. Accordingly, an optional protocol has its own ratification mechanism

independent of the treaty it complements. Generally, only States that have already agreed to be

bound by an original treaty may ratify its optional protocols. The Optional Protocols to the

Convention on the Rights of the Child do however permit non-States parties to ratify or accede to

them. For example, the United States, which has not ratified the Convention, has ratified both of

the Optional Protocols. States must ratify each of the Protocols following the same procedure

required when ratifying the Convention.

In several General Comments, the Convention on Rights of Child uses other international

human rights instruments as guidelines to assist States in carrying out their obligations under the

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Convention. The initial assessment is the process of determining the best interests of the child. In

its General Comment on national human rights institutions, the Convention on Rights of Child

states that such mechanisms should be established in compliance with the Paris Principles. 25

Similarly, the CRC highlights parallels between the Children’s Convention and other

international agreements by referencing the interpretations of other international bodies.26

Committee on the Rights of the Child

The Committee on the Rights of the Child publishes its interpretation of the content of

human rights provisions in the form of general comments on thematic issues. The Committee

comprised of eighteen independent human rights experts, monitors States parties implementation

of the Convention on the Rights of the Child and the Optional Protocols to the Convention. The

Committee’s monitoring role is rooted in its review of periodic reports from each State party

detailing the State’s progress toward the child rights protections mandated by the Convention. 27

The Committee has an important role in interpreting international humanitarian law. Of the core

international human rights treaties with interpretive bodies to monitor implementation. The

Children’s Convention is the only one international instrument that discusses humanitarian law

explicitly.28 As a result, the Convention on Rights of Child is the only human rights treaty body

with substantial existing humanitarian law jurisprudence. Various international humanitarian law

instruments also contain provisions related to the protection of children, allowing for substantial

overlap. In spite of several factors suggesting that the Convention on Rights of Child plays an

important role in interpreting human rights law, others point in a different direction. Unlike the

Civil and Political Covenant, there is no general derogation provision in the Children’s

Convention. The Convention is thus not compelled to scrutinize States’ derogation of rights to

ensure that such measures are not inconsistent with their other obligations under international

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law and is thereby deprived of a direct opportunity to address the relation between the Children’s

Convention and humanitarian law. The Committee explicitly addresses humanitarian law in three

of its eleven General Comments. In elaborating on Article 29(1)’s educational aims, it notes in

General Comment 1 that “[t]he values embodied in Article 29(1) are . . . even more important for

those living in situations of conflict or emergency.”29

Other International Instruments on Human Rights of Children

The Optional Protocol to the Convention on the Rights of the Child

(1) Sex Trafficking Protocol

The United Nations adopted this protocol to the Convention on Rights of Child on May

25, 2000, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child

Pornography 2000 popularly known as Sex Trafficking Protocol. This Optional Protocol to the

Convention on the Rights of the Child entered into force on 18 January 2002. India signed it on

15 November 2004 and ratified it on 16 August 2005. This Protocol interalia provides for the

following:30

(i) It provides for the offences of ‘sale of children’, ‘child prostitution’ and ‘child

pornography’.

(ii) It sets standards for the treatment of violations under domestic law, including with

regard to offenders, protection of victims and prevention efforts.

(iii) It also provides a framework for increased international cooperation in these areas, in

particular for the prosecution of offenders.

The Sex Trafficking Protocol31 addresses the problem of sex trafficking, one among many

purposes for which children are bought and sold, including, in addition, forced labor, adoption,

participation in armed conflicts, marriage, and organ trade. 

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(2) Worst Forms of Child Labour Convention 1999

The International Labour Organisation Convention32 on the Worst Forms of Child Labour

1999 focuses on ending slavery, debt bondage, forced recruitment of children in armed conflict,

prostitution, drug trafficking and any work harmful to the health, safety and morals of children.

India is yet to become a party to this convention.

The “worst forms of child labour” comprise:33  (a) all forms of slavery or practices similar to it,

such as the sale and trafficking of children and forced labor (including forced recruitment for

armed conflict); (b) the use, procuring, or offering of a child for prostitution or for pornography

or  pornographic performances; c) the use, procuring, or offering of a child for illicit activities

such as drug trafficking; and (d) work that is likely to harm children’s health, safety, or morals.

The European Convention Concerning the Custody of Children 1980

The European Convention on the Recognition and Enforcement of Decisions Concerning

the Custody of Children34 seeks to protect the rights of custody and access to children in the

international context.  It calls upon the central authorities designated by States Parties to provide

“free, prompt, non-bureaucratic assistance” in determining the whereabouts and restoring

custody of an improperly removed child. They must also avoid prejudice to the interests of the

child or of the applicant in restoring child custody, among other requirements.  Like the 1980

Convention, the Luxembourg Convention defines a child as being under the age of sixteen. Also,

under both instruments, the right of action lies with the custody holder. The Luxembourg

Convention uses the term “improper removal” to refer to “the removal of a child across an

international frontier in breach of a decision relating to his custody” given in a State Party and

enforceable in that State, in contrast to the 1980 Convention’s term “wrongful removal or

retention” of a child and the CRC’s term “the illicit transfer and non-return of children abroad”.

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Conclusion

The challenge is to continuously impart knowledge of human rights relating to children at

the most formative stage of human development and keep that refurbish as an active knowledge

for the betterment of the children. Among recent developments regarding children’s rights are an

international call for action to end violence against children and a resolution adopted by the U.N.

General Assembly on the establishment of a Human Rights Council. 35 The plethora of

international instruments concerning the rights of children gives primary importance and

paramount consideration for the welfare of child in a human rights perspective. All the principles

enshrined under various treaty provisions of international law generalized the rights of child as

human rights. From the viewpoint of international legal landscape, since the children could be

treated as human beings in every means all the human rights must be accorded to them and their

best interests shall be protected from a welfare perspective to facilitate the children in achieving

full potential.

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End Notes

14
1
Chiranjivi J.Nirmal, Human Rights in India Historical, Social and Political Perspectives (Oxford University Press,
New Delhi, 2000), p.40
2
Borgatta, Edgar F., Human Rights, Children's Rights, and Democracy Encyclopedia of Sociology, Second Edition,
University of Washington
3
Adopted by the General Assembly by its Resolution No. 44/25 of 20th November 1989, entered into force on 2nd
September 1990, in accordance with Article 49
4
Articles 2, 3, 9 and 12 of Convention on Rights of the Child 1989
5
Prof.Judith Masson, Children’s Rights as Human Rights, Indo-British Seminar on Human Rights (The British
Council Division, British High Commission, New Delhi, India, 1998), p.73
6
Geraldine Van Bueren, The International Law on the Rights of the Child 10-11 (Dordrecht/Boston/London,
Martinus Nijhoff Publishers, 1995.  35 International Studies in Human Rights)
7
Articles 4, 42 and 44(6) of Convention on Rights of the Child 1989
8
Articles 7 and 8 of Convention on Rights of the Child 1989
9
Articles 20 and 22 of Convention on Rights of the Child 1989
10
Articles 8 and 30 of Convention on Rights of the Child 1989
11
Article 13 of Convention on Rights of the Child 1989
12
Article 40 of Convention on Rights of the Child 1989
13
Article 12 of Convention on Rights of the Child 1989
14
Article 31
15
Article 1of European Convention on Human Rights 1950
16
Prof.Judith Masson, Children’s Rights as Human Rights Indo-British Seminar on Human Rights (The British
Council Division, British High Commission, New Delhi, India, 1998), p.72
17
Article 5 of European Convention on Human Rights 1950
18
Vaibhav Goel, Children’s human rights in underdeveloped country: A study in Ethiopian perspective, African
Journal of Political Science and International Relations Vol. 3 (4), pp. 142-155, April, 2009
http://www.academicjournals.org/AJPSIR last visited on 12/22/2011
19
Article 2 of Universal Declaration of Human Rights 1948
20
Article 37(a) of Convention on Rights of the Child 1989
21
Article 37(b) of Convention on Rights of the Child 1989
22
Article 25 of Universal Declaration of Human Rights 1948
23
Article 10(3) of International Covenant on Civil and Political Rights 1966
24
Article 24 (1) of International Covenant on Economic, Social and Cultural Rights
25
Convention on Rights of Child, General Comment No. 2: The Role of Independent National Human Rights
Institutions in the Promotion and Protection of the Rights of the Child, U.N. Doc. CRC/GC/2002/2
(Nov.15, 2002)
26
General Comment 8, (citing interpretations of the European Court of Human Rights, European Committee of
Social Rights, Inter-American Court of Human Rights, and African Commission on Human and Peoples’ Rights
of the relevant provisions of their respective international agreements)
27
This obligation flows from Article 44 of the Convention on the Rights of the Child 1989
28
Article 38 of Convention on the Rights of the Child 1989
29
CRC, General Comment No. 1: The Aims of Education, p.16, U.N. Doc. CRC/GC/2001/1 (Apr. 17, 2001)
30
Articles 3, 4 and 6 of Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography 2002
31
The Sex Trafficking Protocol adopted by G.A. Res. A/RES/54/263 of 25 May 2000.  It entered into force on
January 18, 2002
32
The Worst Forms of Child Labour Convention, (ILO Convention No 182) was adopted by the General Conference
of the International Labour Organisation on June 17, 1999, and entered into force on November 19, 2000
33
Article 3 of the Worst Forms of Child Labour Convention 1999
34
The European Convention on the Recognition and Enforcement of Decisions Concerning the Custody of
Children was concluded in Luxembourg on May 20, 1980.  E.T.S. No. 105.
35
News Release, NGO Advisory Council for the UN Study on Violence Against Children, International Call for
Action to End Violence Against Children: Establish a Special Representative to the UN Secretary General on
Violence Against Children  (May 18, 2007), Child Rights Information.