Vandenholeetal Childrens Rights Commentary Introduction

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Legal Commentary on the Convention on the Rights of the Child and its
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CONTENTS
List of abbreviations xiv

Foreword xvii
Table of cases xx
Table of legislation xxix
Introduction: Three decades of children’s rights law 1

CRC Preamble 44
Article 1: Scope of application 48
Article 2: Non-discrimination 52
Article 3: Best interests of the child 59
Article 4: General obligation 74
Article 5: Appropriate direction and guidance consistent with the child’s evolving
capacities 80
Article 6: The right to life, survival and development 88
Article 7: Name and nationality 100
Article 8: Preservation of identity 108
Article 9: Separation from parents 112
Article 10: Family reunification 124
Article 11: Illicit transfer and non-return of children 134
Article 12: The views of the child 143
Article 13: Freedom of expression 160
Article 14: Freedom of thought, conscience and religion 167
Article 15: Freedom of association and peaceful assembly 174
Article 16: The right to privacy 184
Article 17: Access to appropriate information through media 194
Article 18: Common responsibilities of parents for the upbringing and development
of the child 203
Article 19: Protection from all forms of violence 209
Article 20: Children deprived of their family environment 222
Article 21: Adoption 228
Article 22: Asylum seeking and refugee children 236
Article 23: Children with disabilities 247
Article 24: Right to health 254
Article 25: Periodic review of placement 274
Article 26: Social security 276
Article 27: Adequate standard of living 281
Article 28: Right to education 288
Article 29: Aims of education 299
Article 30: Rights of children from minorities and indigenous origin 303
Article 31: Rest, leisure and play 312
Article 32: Protection from economic exploitation 320
Article 33: Protection from drugs 327
Article 34: Protection from sexual exploitation and abuse 334
Article 35: Prevention of abduction, sale and trafficking 343
Article 36: Protection against all other forms of exploitation 352
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CONTENTS
Article 37: Deprivation of liberty, prohibition of torture, degrading and inhuman

treatment and of capital punishment and life imprisonment 355
Article 38: Children in armed conflict 369
Article 39: Recovery and reintegration of child victims 376
Article 40: Children’s rights in justice systems 383
Article 41: Respect for higher standards 397
Article 42: Dissemination 399
Article 43: The Committee on the Rights of the Child 404
Article 44: Reporting procedure 409
Article 45: Implementation and international cooperation 413
Articles 46–54: Final clauses: signature, ratification, accession, entry into force,
amendments, reservations, denunciations 417
Optional Protocol on the Involvement of Children in Armed Conflict (OPAC) 424
Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 437
Optional Protocol on a Communications Procedure (OPIC) 456
Index 483
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EXTENDED TABLE OF CONTENTS
List of abbreviations xiv

Foreword xvii
Table of cases xx
Table of legislation xxix
Introduction: Three decades of children’s rights law

A. ORIGINS OF THE CRC I.04
B. A LEGAL PERSPECTIVE ON THE CRC AND ITS OPTIONAL PROTOCOLS I.10
1. A multi-tiered approach I.20
2. Children’s rights as human rights I.25
3. Situating the CRC in international law I.34
C. REALISATION OF CHILDREN’S RIGHTS AND THE IMPLEMENTATION OF THE CRC I.38
D. NEW ISSUES AND AMBIGUITIES I.52
1. New issues and gaps I.52
2. Ambiguities: limitations and derogations I.54
E. CONTEXTUALISATION: CHILDREN’S RIGHTS BEYOND THE LEGAL FIELD I.58
F. OUR APPROACH I.70
CRC Preamble
Article 1: Scope of application

A. NO MINIMUM AGE 1.02
B. UPPER AGE LIMIT 1.05
C. DIFFERENTIATION 1.09
D. CHILDHOOD 1.11
Article 2: Non-discrimination
A. PERSONAL SCOPE OF APPLICATION 2.03
B. ACCESSORY RIGHT 2.07
C. DEFINITION AND TYPES OF DISCRIMINATION 2.09
D. PROHIBITED GROUNDS 2.12
E. OBLIGATIONS 2.17
F. VULNERABILITY 2.19
Article 3: Best interests of the child

A. A PRIMARY CONSIDERATION IN ALL ACTIONS 3.05
1. Defining best interests 3.09
2. Assessing and determining children’s best interests 3.12
3. Balancing different interests 3.17
B. PROTECTION AND CARE 3.23
C. APPROPRIATE STANDARDS FOR CARE AND PROTECTION 3.25
D. BALANCING CRC RIGHTS AND PRINCIPLES 3.27
Article 4: General obligation

A. APPROPRIATE MEASURES 4.02
B. ECONOMIC, SOCIAL AND CULTURAL RIGHTS 4.05
C. SPATIAL SCOPE OF OBLIGATIONS 4.09
D. IMPLEMENTATION 4.12
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Article 5: Appropriate direction and guidance consistent with the child’s evolving
capacities
A. BACKGROUND 5.03
B. STATE OBLIGATIONS 5.05
C. CHANGING ROLE OF PARENTS AND OTHER CAREGIVERS 5.08
D. CAPACITY OF THE CHILD 5.11
E. BEYOND THE LAW 5.15
Article 6: The right to life, survival and development

A. OBLIGATIONS 6.04
B. KEY QUESTIONS 6.08
C. CONTEMPORARY DEBATES 6.16
1. Beginning of childhood 6.16
2. Impact of private actors 6.19
Article 7: Name and nationality

A. BIRTH REGISTRATION 7.03
B. NAME 7.08
C. NATIONALITY AND AVOIDANCE OF STATELESSNESS 7.11
D. RIGHT TO KNOW ONE’S PARENTS AND TO BE CARED FOR BY THEM 7.15
Article 8: Preservation of identity
Article 9: Separation from parents

A. PROTECTION OF FAMILY UNITY 9.02
B. A UNIQUE PROVISION? 9.05
C. STATE OBLIGATIONS 9.09
D. BEYOND THE LAW 9.22
Article 10: Family reunification

A. POSITIVE, HUMANE AND EXPEDITIOUS TREATMENT OF APPLICATIONS 10.02
B. RIGHT TO LEAVE A COUNTRY AND TO RETURN 10.05
C. UNACCOMPANIED OR SEPARATED CHILDREN 10.07
Article 11: Illicit transfer and non-return of children

A. PARENTAL ABDUCTION 11.02
B. CONCLUDE OR ACCEDE TO INTERNATIONAL AGREEMENTS 11.03
C. ADDITIONAL STANDARDS AND THEIR INTERPRETATION 11.05
D. OTHER MEASURES TO COMBAT ILLICIT TRANSFER AND NON-RETURN ABROAD 11.11
E. CHANGING REALITIES 11.13
Article 12: The views of the child

A. THE RIGHT TO EXPRESS VIEWS 12.05
1. Positive obligation 12.05
2. The capacity of forming one’s views 12.06
3. Free expression of one’s views 12.09
4. Which matters affect the child? 12.14
B. THE OBLIGATION TO GIVE DUE WEIGHT TO THE CHILD’S VIEWS 12.17
C. THE SPECIFIC CASE OF OFFICIAL PROCEEDINGS 12.24
1. Ways of hearing the child 12.27
2. Fair proceedings 12.29
3. The concept of ‘participation’ 12.30
Article 13: Freedom of expression

A. OBLIGATIONS 13.02
B. SPECIFIC ISSUES 13.07
1. Freedom rights 13.07
2. Limitations 13.10
C. BEYOND THE LAW 13.12
viii
Article 14: Freedom of thought, conscience and religion

B. KEY ISSUES 14.03
1. Freedom of thought, conscience and religion 14.03
2. Limitations 14.06
3. A contested freedom: rights and duties of parents 14.09
C. CRITICAL PERSPECTIVES 14.15
Article 15: Freedom of association and peaceful assembly

A. SUBSTANTIVE CLARIFICATIONS 15.05
C. ASSOCIATION RIGHTS OF WORKING CHILDREN IN TRADE UNIONS 15.14
D. BEYOND THE LAW 15.17
Article 16: The right to privacy

A. SCOPE 16.05
C. CONFLICTS BETWEEN CHILDREN’S RIGHTS AND PARENTS’ INTERESTS 16.14
D. CHILDREN’S PRIVACY ONLINE 16.16
Article 17: Access to appropriate information through media

B. KEY ISSUES 17.09
C. OPPORTUNITIES AND RISKS OF MASS MEDIA 17.11
D. NEW OBLIGATIONS IN THE DIGITAL AGE 17.15
Article 18: Common responsibilities of parents for the upbringing and development
of the child
A. COMMON RESPONSIBILITIES 18.02
B. STATE DEFERENCE 18.03
C. STATE ASSISTANCE 18.05
D. CHILDREN OF WORKING PARENTS 18.08
E. CRITICAL OBSERVATIONS 18.10
Article 19: Protection from all forms of violence

1. Definition of violence 19.04
2. Children in the care of primary or proxy caregivers 19.07
3. Measures of protection 19.09
B. KEY ISSUES 19.14
1. An unequivocal prohibition 19.14
2. Prohibition of corporal punishment 19.15
Article 20: Children deprived of their family environment

A. NECESSITY OF ALTERNATIVE CARE 20.05
B. SUITABILITY OF ALTERNATIVE CARE (1) 20.07
C. SUITABILITY OF ALTERNATIVE CARE (2): FORMS OF ALTERNATIVE CARE 20.12
D. SUITABILITY OF ALTERNATIVE CARE (3): NO UNDUE DISRUPTION IN THE LIFE OF
THE CHILD 20.17
E. BEYOND THE LAW 20.18
Article 21: Adoption

A. CONDITIONS 21.02
B. INTER-COUNTRY ADOPTION 21.04
C. SUBSIDIARITY CONFLICTS 21.05
D. BEST INTERESTS OF THE CHILD 21.10
E. ADOPTION TREATIES 21.11
F. BEYOND THE LAW 21.13
ix
Article 22: Asylum seeking and refugee children

B. KEY ISSUES 22.07
1. Definition of a refugee 22.07
2. Non-refoulement 22.10
3. Content of protection and assistance 22.11
Article 23: Children with disabilities

B. DOMESTIC IMPLEMENTATION 23.07
C. DE-INSTITUTIONALISATION 23.09
D. INCLUSIVE EDUCATION 23.11
E. SPECIAL PROTECTION MEASURES 23.12
Article 24: Right to health

1. Progressive realisation 24.07
2. Retrogressive measures 24.10
3. Minimum core obligations 24.11
4. International cooperation 24.13
5. Special issues of concern 24.15
B. CONTEMPORARY DEBATES 24.37
1. Medical consent 24.37
2. Obligations of private actors 24.41
Article 25: Periodic review of placement

A. REGULAR REVIEW 25.04
Article 26: Social security

A. MEANING AND SCOPE OF THE RIGHT 26.01
B. OBLIGATIONS 26.05
C. ADDED VALUE OF ART. 26 CRC 26.10
Article 27: Adequate standard of living

B. RIGHT TO HOUSING 27.06
C. RIGHT TO FOOD 27.07
D. RIGHT TO WATER 27.11
E. POVERTY 27.13
Article 28: Right to education

B. POSITIVE DISCIPLINE 28.09
C. INCLUSIVE EDUCATION FOR CHILDREN WITH DISABILITIES 28.13
D. INCLUSION OF ROMA CHILDREN 28.17
E. EXEMPTIONS 28.20
F. ACCESS TO EDUCATION FOR UNDOCUMENTED MIGRANT CHILDREN 28.21
G. INTERNATIONAL COOPERATION 28.23
Article 29: Aims of education

A. FIVE AIMS OF EDUCATION 29.02
C. FREEDOM TO ESTABLISH AND DIRECT EDUCATIONAL INSTITUTIONS 29.09
Article 30: Rights of children from minorities and indigenous origin

B. KEY ISSUES 30.06
1. Indigenous children’s rights 30.06
2. Balancing of interests 30.08
Article 31: Rest, leisure and play

B. KEY ISSUES 31.07
Article 32: Protection from economic exploitation

1. Minimum age requirements 32.04
2. Worst forms of child labour 32.07
Article 33: Protection from drugs

1. Protection of children at higher risk 33.05
2. Protection from economic exploitation 33.07
3. Taking all appropriate measures 33.10
Article 34: Protection from sexual exploitation and abuse

1. Protection 34.05
2. Prevention 34.10
Article 35: Prevention of abduction, sale and trafficking

1. Terminology 35.04
2. Prevention 35.09
3. Child-sensitive procedures 35.12
1. Conflict and humanitarian crises 35.14
2. Surrogacy 35.15
Article 36: Protection against all other forms of exploitation

B. CONTEMPORARY DEBATE 36.04
Article 37: Deprivation of liberty, prohibition of torture, degrading and inhuman

treatment and of capital punishment and life imprisonment
A. DEPRIVATION OF LIBERTY 37.02
1. General obligations 37.06
2. Specific obligations related to the prohibition of various forms of ill-treatment
in detention: art. 37(a) 37.08
3. Specific obligations related to deprivation of liberty: art. 37(b–d) 37.13
Article 38: Children in armed conflict

B. KEY ISSUES 38.04
1. Age thresholds 38.04
2. Interface between art. 38 and international humanitarian law 38.05
3. International armed conflicts 38.07
4. Non-international armed conflicts 38.08
5. Customary law 38.09
C. BEYOND THE LAW 38.11
Article 39: Recovery and reintegration of child victims

xi
B. KEY ISSUES 39.12

1. Tensions around prosecutorial justice and reintegration 39.12
2. Terminological debates: victim versus survivor 39.13
Article 40: Children’s rights in justice systems

1. Treatment with dignity and respect: art. 40.1 40.04
2. Procedural guarantees: art. 40.2 40.08
3. Specificities of the juvenile justice system: art. 40.3 40.18
4. Alternatives to institutional care: art. 40.4 40.24
B. PREVENTION 40.27
Article 41: Respect for higher standards
Article 42: Dissemination
Article 43: The Committee on the Rights of the Child

A. COMPOSITION 43.03
B. ELECTIONS 43.04
C. REQUIREMENTS 43.07
D. FUNCTIONING 43.09
Article 44: Reporting procedure

A. REPORTING GUIDELINES 44.02
B. SOURCES OF INFORMATION 44.05
C. DISCUSSION OF THE REPORT 44.06
Article 45: Implementation and international cooperation
Articles 46–54: Final clauses: signature, ratification, accession, entry into force,
amendments, reservations, denunciations
A. CONSENT TO BE BOUND 46–54.02
B. RESERVATIONS 46–54.05
1. General reservations regime 46–54.06
2. CRC Committee 46–54.07
C. DENUNCIATION 46–54.10
Optional Protocol on the Involvement of Children in Armed Conflict (OPAC)

A. COMPULSORY PARTICIPATION AND RECRUITMENT IN HOSTILITIES OPAC.04
B. VOLUNTARY RECRUITMENT INTO ARMED FORCES OPAC.07
C. RECRUITMENT AND USE BY ARMED GROUPS OPAC.12
D. IMPLEMENTATION, PREVENTION AND REHABILITATION OPAC.14
E. INTERNATIONAL COOPERATION OPAC.15
F. REPORTING OPAC.17
G. GENERAL PRINCIPLES AND STANDARD CLAUSES OPAC.18
H. CRITICAL REFLECTIONS OPAC.19
Optional Protocol on the Sale of Children, Child Prostitution and Child

Pornography
A. KEY LEGAL QUESTIONS OPSC.03
1. Terminology OPSC.05
2. Criminalisation/penalisation OPSC.07
3. Jurisdiction OPSC.10
4. Judicial cooperation OPSC.11
5. Protection of child victims OPSC.15
6. Prevention OPSC.16
7. Procedural provisions OPSC.17
xii
Optional Protocol on a Communications Procedure (OPIC)

A. PREAMBLE OPIC.04
B. GENERAL CONDITIONS OPIC.06
C. INDIVIDUAL COMPLAINTS OPIC.11
D. INTERIM MEASURES OPIC.14
E. ADMISSIBILITY OPIC.16
F. CONSIDERATION OF THE COMMUNICATION OPIC.19
G. GOOD OFFICES OPIC.20
H. CONSIDERATION OF THE MERITS OPIC.21
I. FOLLOW-UP OPIC.22
J. ECONOMIC, SOCIAL AND CULTURAL RIGHTS OPIC.24
K. INTER-STATE COMPLAINTS OPIC.26
L. INQUIRY PROCEDURE OPIC.28
M. INTERNATIONAL ASSISTANCE AND COOPERATION OPIC.30
N. DISSEMINATION AND INFORMATION OPIC.31
O. EVALUATION OPIC.34
Index 483
xiii
ABBREVIATIONS
ACERWC African Committee of Experts on the Rights and Welfare of the

Child’
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
ACRWC African Charter on the Rights and Welfare of the Child
APPROACH Association for the Protection of All Children
BIA Best Interests Assessment
BID Best Interests Determination
CAT Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CED International Convention for the Protection of All Persons from
Enforced Disappearance
CED Committee Committee on Enforced Disappearances
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CEDAW Committee Committee on the Elimination of Discrimination Against
Women
CERD Committee Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CJEU Court of Justice of the EU
CMW Committee Committee on Migrant Workers
CoE Council of Europe
CRC Convention on the Rights of the Child
CRC Committee Committee on the Rights of the Child
CRIN Child Rights International Network
CRPD Convention on the Rights of Persons with Disabilities
CRPD Committee Committee on the Rights of Persons with Disabilities
ECHR European Convention on Human Rights
ECmHR European Commission of Human Rights
ECSR European Committee of Social Rights
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ABBREVIATIONS
ECtHR European Court of Human Rights

ESC Economic, Social and Cultural
EU European Union
FGM Female genital mutilation
GC General Comment
GDPR General Data Protection Regulation
HCCA Hague Convention on the Civil Aspects of International Child
Abduction
HCCH Hague Conference on Private International Law
HRC Human Rights Committee
IACmHR Inter-American Commission on Human Rights
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of
Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICMW International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families
ICT Information and Communication Technologies
ILO International Labour Organisation
IMF International Monetary Fund
LGBTQI+ Lesbian, Gay, Bisexual, Transgender, Queer, Intersex
MACR Minimum Age of Criminal Responsibility
MDGs Millennium Development Goals
OEWG Open-ended Working Group
OHCHR Office of the United Nations High Commissioner for Human
Rights
OMCT World Organisation Against Torture
OPAC Optional Protocol on the Involvement of Children in Armed
Conflict
OP-CRPD Optional Protocol to the Convention on the Rights of Persons
with Disabilities
OPIC Optional Protocol on a Communications Procedure
OP-ICESCR Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights
OPSC Optional Protocol on the Sale of Children, Child Prostitution and
Child Pornography
xv
ABBREVIATIONS
RESC Revised European Social Charter

SDGs Sustainable Development Goals
SRSG Special Representative of the Secretary-General
UDHR Universal Declaration of Human Rights
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Council
UNICEF United Nations’ Children’s Fund
UPR Universal Periodic Review
US United States of America
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of Treaties
WHO World Health Organization
xvi
FOREWORD
Before the adoption of the UN Convention on the Rights of the Child,

‘children’s rights’ were viewed as a quest for charity. Children were often
considered to be the property of their parents. They were viewed and treated
as ‘mini-human beings’.
The CRC, adopted in 1989, is the first binding global instrument with a
specific focus on a wide range of rights for children. It was ratified by 100
States within two years of its adoption, making it the most quickly ratified
human rights instrument in the world. It took less than ten months to enter
into force. More importantly, the Convention is also the most widely ratified
human rights instrument with 196 States parties. The opportunity to look
back into the drafting history of the Convention is very timely and should be
welcomed. In recent years, especially with the rise of populism, doubts on the
relevance of multilateralism, and the general pushback on the human rights
agenda, State Parties often refer to the travaux preparatoires of the Convention
and its Optional Protocols to argue the case why they do or do not have a
specific obligation.
Fast forward 30 years, the popularity of the CRC, as manifested in its near
universal ratification, suggests a high level of normative consensus among the
various nations of the world on the idea and content of children’s rights as
human rights. However, there is still considerable divergence of opinion about
the nature of the relevant rights, their foundation and practical implications,
their content and scope, and, increasingly, the locus of the duties and respons-
ibilities that correlate with the rights. The competing rights and duties of
parents, children and the State continue to create disharmony, which, ultim-
ately, can prejudice the rights of children. These issues, and more, are covered
in this Commentary.
There is a long list of strengths that this Commentary displays. I would be
remiss if I do not highlight three peculiar aspects.
First, this Commentary covers a number of emerging issues that have
implications on the understanding and implementation of the rights of the
child that were not that pronounced 30 years ago – such as climate change, the
advancement of technology, digital/social media, and the role of the private
sector – factors that have further complicated the application of the Conven-
tion and its Optional Protocols.
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FOREWORD
Second, after all, the implementation of the Convention is inextricably linked

to the extent to which States ratify and implement the three Optional
Protocols. For example, currently, with 45 State Parties, and around 100
communications registered, it would be no exaggeration to state that there is
hardly any serious academic book on children’s rights that can afford to
completely ignore the Optional Protocol on a communications procedure. The
references made to regional human/child rights systems further aid the
completeness of the Commentary.
Third, the effort to understand the obligations under the Convention is
informed, among others, by the work/jurisprudence of the UN Committee on
the Rights of the Child (CRC Committee), which is the body of 18
independent experts that monitors compliance with the CRC. The Commen-
tary does not take such jurisprudence as a given, and interrogates it critically,
and highlights shortcomings where appropriate. For example, the Commentary
does not shy away from engaging with more recent and contentious issues
such as deconstructing the four ‘general principles’ and the need for consistent
language and a clear theory around it. And while it is not necessarily the
objective of this book to reach conclusions regarding the ‘true’ meaning of
words and phrases in the substantive articles of the CRC and its Optional
Protocols, a concrete attempt is made, in line with the rules of interpretation
in international law, and at times based on the jurisprudence from the CRC
Committee, to provide a reasonable construction of substantive provisions.
The different types of challenges that State Parties face in the implemen-
tation of the Convention and its Optional Protocols are often dependent on a
number of factors. These factors include human and financial resources; social
stability; how early the Convention has been ratified by a State and internal-
ised; the presence and effectiveness of comprehensive laws on children’s rights;
the extent to which harmful practices are embedded in society; geographical
location, including topography (for instance, sparsely populated State parties,
small island States, effects of exposure to climate change, etc.); and at times,
the type of government arrangement, such as federal or unitary, especially in
relation to co-ordination.
At the heart of addressing these challenges should be a solid understanding
of the provisions of the Convention and its Optional Protocols by decision
makers, advocates, academics, bureaucrats, service providers, practitioners and
children alike. After all, for the Convention and its Optional Protocols to
achieve their potential to create a world that is fit for children, they should be
scrutinized, interrogated, understood and implemented. At times, we need to
question the solutions. Reading this Commentary, I cannot help but ponder
over the words of James Baldwin that ‘[n]ot everything that is faced can be
changed, but nothing can be changed until it is faced’. This Commentary helps
xviii
FOREWORD
us face our reality on the understanding and implementation of the Conven-

tion and its Optional Protocols, and it constitutes a stimulating and useful
resource. It will no doubt contribute its meaningful part in this endeavor.
Benyam Dawit Mezmur

Member (and former chairperson) of the UN Committee on the Rights of the
Child
Member (and former chairperson) of the African Committee of Experts on
the Rights and Welfare of the Child
Associate Professor of Law
Dullah Omar Institute for Constitutional Law, Governance and Human
Rights
University of the Western Cape, South Africa
xix
TABLE OF CASES
African Commission on Human and People’s Rights
Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v. Kenya (African
Commission on Human and People’s Rights) 2003 ................................................ 30.15
African Committee on the Rights and Welfare of the Child (ACRWC)
Centre for Human Rights and Rencontre Africaine pour la Défense des Droits de
l’Homme v. Senegal (Application no. 003/2012) Decision (ACRWC) 2014 ....... 27.14,
28.05, 29.10
IHRDA and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian
descent in Kenya) v Kenya (Application no. 002/09) Decision (ACRWC)
2011 .......................................................................................................... 7.04, 7.13, 7.14
Court of Justice of the European Union (CJEU)
References for a preliminary ruling under Article 267 TFEU from the Korkein
hallinto-oikeus (Finland), made by decisions of 5 July 2011 in the proceedings O,
S v Maahanmuuttovirasto (C-356/11), and Maahanmuuttovirasto v L (C-357/11),
(CJEU) 2011 ............................................................................................................. 10.12
Request for a preliminary ruling under Article 267 TFEU from the Rechtbank Den Haag
(District Court, The Hague, Netherlands), made by decision of 26 October 2016,
received at the Court on 31 October 2016, in the proceedings A, S v Staatssecretaris
van Veiligheid en Justitie 5C-550/16°, CJEU, 2018 ............................................... 10.12
Dynamic Medien Vertriebs GmbH v. Avides Media AG (C-244/06) Judgment (CJEU)
2008 ........................................................................................................................... 17.10
CRC Committee
I.A.M. v. Denmark: Communication No. 3/2016 (CRC Committee) 2018 ...... 22.07, 22.10,
24.36, OPIC.03, OPIC.14, OPIC.36
Y.B. and N.S. v. Belgium (CRC Committee) 2018 ............................................. 10.15, 20.13
European Commission of Human Rights
Hendriks v. Netherlands, Commission Report of 8 March 1982, D.R. 29, 1982 ... 3.18, 9.18
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TABLE OF CASES
European Committee of Social Rights (ECSR)
Association for the Protection of All Children (APPROACH) Ltd. v. France, Complaint
No. 92/2013, Decision (ECSR) 2014 ...................................................................... 19.22
Association for the Protection of All Children (APPROACH) v. Italy, Complaint No.
94/2013, Decision (ECSR) 2014 ............................................................................. 19.22
Association for the Protection of All Children (APPROACH) Ltd. v. Belgium,
Complaint No. 98/2013, Decision (ECSR) 2015 .................................................... 19.22
Autism Europe v. France, Complaint No. 13/2002), Decision (ECSR) 2003 ................ 28.13
Ben Djazia et al v. Spain, Complaint No. 5/2015), Decision (CESCR) 2017 ............... 27.06
Conference of European Churches (CEC) v. Netherlands, Complaint No. 90/2013,
Decision (2014) ......................................................................................................... 22.14
Defence for Children International v. Netherlands, Complaint No. 47/2008, Decision
(ECSR) 2009 ............................................................................................................ 27.06
Defence for Children International (DCI) v. Belgium, Complaint No. 69/2011,
Decision (ECSR) 2012 .................................................................................. 22.14, 27.06
European Action of the Disabled (AEH) v. France, Complaint No. 81/2002,
Decision (ECSR) 2013 ............................................................................................. 28.13
European Committee for Home-Based Priority Action for the Child and the Family
(EUROCEF) v. France, Complaint No. 114/2015, Decision (ECSR) 2018 ......... 22.14
European Federation of National Organisations working with the Homeless
(FEANTSA) v. the Netherlands, Complaint No. 86/2012, Decision (ECSR)
2014 ........................................................................................................................... 22.14
Mental Disability Advocacy Center (MDAC) v. Bulgaria, Complaint No. 41/2007,
Decision (ECSR) 2008 ............................................................................................. 28.16
World Organisation against Torture (OMCT) v. Greece, Complaint No. 17/2003
Decision (ECSR) 2004 .................................................................................. 19.19, 19.20
World Organisation against Torture (OMCT) v. Ireland, Complaint No. 18/2003,
Decision (ECSR) 2004 .................................................................................. 19.19, 19.20
World Organisation against Torture (OMCT) v. Italy, Complaint No. 19/2003,
Decision (ECSR) 2004 ............................................................................................. 19.19
World Organisation against Torture (OMCT) v. Portugal, Complaint No. 20/2003,
Decision (ECSR) 2004 ............................................................................................. 19.19
World Organisation against Torture (OMCT) v. Belgium, Complaint No. 21/2003,
Decision (ECSR) 2004 ............................................................................................. 19.19
World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006,
Decision (ECSR) 2006 ............................................................................................. 19.21
European Court of Human Rights (ECtHR)
A. v. United Kingdom (Application no. 25599/94) Judgment (ECtHR) 1998 .............. 19.18
A.K. and L. v. Croatia (Application no. 37956/11) Judgment (ECtHR) 2013 ...... 9.03, 9.13,
9.19
A.R. and L.R. v. Switzerland (Application no. 22338/15) Admissibility Decision
(ECtHR) 2018 .......................................................................................................... 28.20
Adzic v. Croatia (Application no. 22643/14) Judgment (ECtHR) 2015 ........................ 11.08
Ageyevy v. Russia (Application no. 7075/10) Judgment (ECtHR) 2013 .......................... 9.19
xxi
TABLE OF CASES
Ahmut v. Netherlands Application no. 73/1995/579/665 (ECtHR) (1996) ........ 10.13, 10.14
Aleksejev v. Russia (Applications nos. 4916/07, 25924/08 and 14599/09) Judgment
(ECtHR) 2010 .......................................................................................................... 15.11
Ali v. United Kingdom (Application no. 40385/06) Judgment (ECtHR) 2011 ............. 28.11
Anatoliy and Vitaliy Ponomaryov v. Bulgaria (Application no. 5335/05) Judgment
(ECtHR) 2011 .......................................................................................................... 28.22
Anderson and others v UK (Application no. 73652/01) Judgment (ECtHR) 2007. ...... 15.05
Ärtze für das Leben v. Austria (Application no. 10126/82) Judgment (ECtHR)
1988 ........................................................................................................................... 15.11
B. v. Belgium (Application no. 4320/11) Judgment (ECtHR) 2012 .................... 11.08, 11.10
B. and P. v. United Kingdom (Applications nos. 36337/97 and 35974/97) Judgment
(ECtHR) 2001 .......................................................................................................... 16.13
Bah v. United Kingdom (Application no. 56328/07) Judgment (ECtHR) 2011 .............. 2.15
Bajrami v. Albania (Application no. 35853/04) Judgment (ECtHR) 2006 ........... 9.18, 11.09,
11.10
Benamar v. Netherlands (Application No. 43786/04) Judgment (ECtHR) 2005 ........... 10.14
Berladir and Others v. Russia (Application no. 34202/06) Judgment (ECtHR) 2012 ... 15.08
Blaga v. Romania (Application no. 54443/10) Judgment (ECtHR) 2014 ...................... 11.08
Blokhin v. Russia (Application no. 47152/06) Judgment (ECtHR) 2016 ........... 24.19, 37.15,
40.13, 40.26
C.P. v. United Kingdom (Application no. 300/11) Admissibility Decision (ECtHR)
2016 ........................................................................................................................... 28.11
Carlson v. Switzerland (Application no. 49492/06) Judgment (ECtHR) 2008 ............... 11.08
Chabrowski v. Ukraine (Application no. 61680/10) Judgment (ECtHR) 2013 .............. 11.09
Chandra and Others v. Netherlands (Application no. 53102/99) Judgment (ECtHR)
2003 ........................................................................................................................... 10.14
Charles Gard and others v. United Kingdom (Application no. 39793/17) Judgment
(ECtHR) 2017 ................................................................................................. 6.18, 24.38
Chbihi Loudoudi and Others v. Belgium (Application no. 52265/10) (ECtHR)
2014 ................................................................................................................ 10.15, 20.13
Christian Democratic People’s Party v. Moldova (Application no. 25196/04) Judgment
(ECtHR) 2010 .......................................................................................................... 15.07
Collins and Akaziebie v. Sweden (Application no. 23944/05) Admissibility Decision
(ECtHR) 2007 .......................................................................................................... 24.36
Cyprus v. Turkey (Application no. 25781/94) Judgment (ECtHR) 2014 ....................... 17.10
D.H. v. Czech Republic (Application no. 57325/00) Judgment (ECtHR) 2007;
Sampanis v. Greece (Application no. 32526/05) Judgment (ECtHR) 2008 ........... 28.17
Durisotto v. Italy (Application no. 62804/13) Judgment (ECtHR) 2014 ....................... 24.38
Folgero v. Norway (Application no. 15472/02) Judgment (ECtHR) 2007 .......... 14.13, 28.20
G.N. v. Poland (Application no. 2171/14) Judgment (ECtHR) 2016 ............................ 11.08
G.S. v. Georgia (Application no. 2361/13) Judgment (ECtHR) 2015 ............................ 11.08
Gajtani v. Switzerland (Application no. 43730/07) Judgment (ECtHR) 2014 ............... 11.08
Gaskin v. United Kingdom (Application no. 10454/83) Judgment (ECtHR) 1989 ........ 8.05,
8.06, 13.04
Genovese v. Malta (Application no. 53124/09) Judgment (ECtHR) 2011 ....................... 7.14
Glass v. United Kingdom (Application no. 61827/00) Judgment (ECtHR) 2004 .......... 24.38
Godelli v. Italy (Application no. 33783/09) Judgment (ECtHR) 2012 ............................. 8.08
xxii
TABLE OF CASES
Guerra v. Italy (Application no. 116/1996/735/932) Judgment (ECtHR) 1998 ............. 13.04
Gül v. Switzerland (Application no. 23218/94) Judgment (ECtHR) 1996 ........... 9.07, 10.13,
10.14
H.K. v. Finland (Application no. 36065/97) Judgment (ECtHR) 2006 ......................... 20.10
Haas v. Switzerland (Application no. 31322/07) Judgment (ECtHR) 2011 ..................... 6.17
Haase v. Germany (Application no. 11057/02) Judgment (ECtHR) 8 April
2004 ................................................................................................................... 3.18, 9.18
Handyside v. United Kingdom (Application no. 5493/72) Judgment (ECtHR) 1976 .. 13.03,
17.10
Hussain v. United Kingdom (Application no. 23389/93) Judgment (ECtHR) 1996 ..... 37.11
I.M. v. Netherlands (Application no. 41226/98) Judgment (ECtHR) 2003 ................... 10.14
Iglesias Gil and A.U.I. v. Spain (Application no. 56673/00) Judgment (ECtHR)
2003 ........................................................................................................................... 11.10
Ireland v. UK (Application No. 5310/71) Judgment (1978) ............................................ 37.07
Jäggi v. Switzerland (Application no. 58757/00) Judgment (ECtHR) 2006 ..................... 8.06
Jeunesse v. Netherlands (Application no. 12738/10) Judgment (ECtHR)
2014 ................................................................................................................ 10.14, 22.13
K.J. v. Poland (Application no. 30813/14) Judgment (ECtHR) 2016 ............................ 11.08
K.U. v. Finland (Application no. 2872/02) Judgment (ECtHR) 2008 ............................ 16.13
Kacper Nowakowski v. Poland (Application no. 32407/13) Judgment (ECtHR) 2017 .... 9.03
Khusnutdinov and X. v. Russia (Application no. 76598/12) Judgment (ECtHR)
2018 ................................................................................................................ 16.06, 16.13
Kocherov and Sergeyeva v. Russia (Application no. 16899/13) Judgment (ECtHR)
2016 ............................................................................................................................. 9.03
Koons v. Italy (Application no. 68183/01) Judgment (ECtHR) 2008 .............................. 9.18
Kutzner v. Germany (Application no. 46544/99) Judgment (ECtHR) 26 February
2002 ........................................................................................................ 3.18, 9.18, 20.05
Labassee v. France (Appliciation no. 65941/11) Judgment (ECtHR) 2014 ...................... 8.07
Lambert and Others v. France (Application no. 46043/14) Judgment (ECtHR) 2015 .... 6.17
Lavida v. Greece (Application no. 7973/10) Judgment (ECtHR) 2013 .......................... 28.19
Leyla Sahin v. Turkey (Application no. 44774/98) Judgment (ECtHR) 2005 ............... 28.11
M and M v. Croatia (Application no. 10161/13) Judgment (ECt.HR) 2015 ......... I.62, 9.07,
9.16, 12.20, 12.24
M.C. v. Bulgaria (Application no. 39272/98) Judgment (ECtHR) 2003 ........................ 34.08
M.G.C. v. Romania, (Application no. 61495/11) Judgment (ECtHR) 2016 ................. 34.08
M.K. v. Greece (Application no. 51312/16) Judgment (ECtHR) 2018 ............... 11.08, 11.10
McMichael v. United Kingdom (Application no. 16424/90) Judgment (ECtHR)
1995 ............................................................................................................................. 9.07
Mamatkulov and Askarov v. Turkey (Applications nos. 46827/99 and 46951/99)
Judgment (ECtHR) 2005 ................................................................................... OPIC.15
Mandet v. France (Application no. 30955/12) Judgment (ECtHR) 2016 ........................ 8.06
Maumousseau and Washington v. France (Application no. 39388/05) Judgment
(ECtHR) 2007 ................................................................................... 11.02, 11.08, 11.10
Mennesson v. France (Application no. 65192/11) Judgment (ECtHR) 2014 ........ 7.05, 8.06,
8.07
Mikulic’ v. Croatia (Application no. 53176/99) Judgment (ECtHR) 2001 ....................... 8.06
xxiii
TABLE OF CASES
Monory v. Romania and Hungary (Application no. 71099/01) Judgment (ECtHR)

2005 ............................................................................................................................. 9.18
Mugenzi v. France (Application no. 52701/09) Judgment (ECtHR) 2014 ..................... 10.14
Muskhadzhiyeva and others v. Belgium (Application No. 41442/07) Judgment
(ECtHR) 2010 .......................................................................................................... 22.12
N. TS. v. Georgia (Application no. 71776/12) Judgment (ECtHR) 2016 ...................... 12.24
Nencheva and Others v. Bulgaria (Application no. 48609/06) Judgment (ECtHR)
2013 ........................................................................................................................... 24.19
Neulinger and Shuruk v. Switzerland (Application no. 41615/07) Judgment (ECtHR)
6 July 2010 ..................................................................................... 3.18, 8.19, 9.18, 11.08
Niemietz v. Germany (Application no. 13710/88) Judgment (ECtHR) 1992 ..... 16.05, 16.06
Novruk and Others v. Russia (Applications nos. 31039/11, 48511/11, 76810/12,
14618/13 and 13817/14) Judgment (ECtHR) 2016 ................................................ 10.13
O'Keeffe v. Ireland (Application no. 35810/09) Judgment (ECtHR) 2014 .................... 34.09
Odièvre v. France (Application no. 42326/98) Judgment (ECtHR) 2003 ............... 8.05, 8.08
Omeredo v. Austria (Application no. 8969/10) Admissibility Decision (ECtHR)
(2011) ........................................................................................................................ 24.36
Oršuš v. Croatia (Application no. 15766/03) Judgment (ECtHR) 2010 ........................ 28.18
Osman v. United Kingdom (Application no. 87/1997/871/1083) Judgment
(ECtHR) 1998 ............................................................................................................ 6.07
Osmanoglu and Kocabas v. Switzerland (Application no. 29086/12) Judgment
(ECtHR) 2017 .......................................................................................................... 28.20
Ouranio Toxo and Others v. Greece (Application no. 74989/01) Judgment (ECtHR)
2005 ........................................................................................................................... 15.11
P.P. v. Poland (Application no. 8677/03) Judgment (ECtHR) 2008 .............................. 11.09
P. and S. v. Poland (Application no. 57375/08) Judgment (ECtHR) 2012 .................... 16.13
Pajic’ v. Croatia (Application no. 68453/13) Judgment (ECtHR) 2016 ......................... 10.13
Paradiso and Campanelli v. Italy (Application no. 25358/12) Judgment (ECtHR)
2017 ........................................................................................................................... 8.07
Phostira Efthymiou and Ribeiro Fernandez v. Portugal (Application no. 66775/11)
Judgment (ECtHR) 2015 ......................................................................................... 11.08
Popov v. France (Application Nos. 39472/07 and 39474/07) Judgment (ECtHR)
2012 ......................................................................................................................... 22.12
Pretty v. United Kingdom (Application no. 2346/02) Judgment (ECtHR) 2002 ............. 6.17
Peck v. United Kingdom (Application no. 44647/98) Judgment (ECtHR) 2003 ........... 16.06
R.S. v. Poland (Application no. 63777/09) Judgment (ECtHR) 2015 ............................ 11.09
Raban v. Romania (Application no. 25437/08) Judgment (ECtHR) 2010 ..................... 11.08
Raw and Others v. France (Application no. 10131/11) Judgment (ECtHR) 2013 ....... 11.08,
11.10
Rouiller v. Switzerland (Application no. 3592/08) Judgment (ECtHR) 2014 ................ 11.08
S. and Marper v. United Kingdom (Applications nos. 30562/04 and 30566/04)
Judgment (ECtHR) 2008 .............................................................................. 16.13, 40.17
Sahin v. Germany (Application no. 30943/96) Judgment (ECtHR) 8 July 2003 ... 3.18, 9.16,
9.17, 9.18, 12.24
Salduz v. Turkey (Application no. 36391/02) Judgment (ECtHR) 2008 ........................ 40.13
Saviny v. Ukraine (Application no. 39948/06) Judgment (ECtHR) 2008 .............. 3.20, 9.13,
12.24, 20.05, 20.11
xxiv
TABLE OF CASES
Scozzari and Giunta v. Italy (Applications nos. 39221/98 and 41963/98) Judgment
(ECtHR) 2000 ............................................................................................................ 9.17
Sen v. the Netherlands (Application no. 31465/96) Judgment (ECtHR) 2001 .............. 10.14
Senigo Longue and Others v. France (Application no. 19113/09) Judgment (ECtHR)
2014 ........................................................................................................................... 10.14
Singh v. the United Kingdom (Application no. 23389/94) Judgment (ECtHR)
1996 ........................................................................................................................... 37.11
Skerlevska v. ‘the former Yugoslav Republic of Macedonia’ (Application no. 54372/15)
Judgment (ECtHR) 2018 ......................................................................................... 24.38
Slivenko v. Latvia (Application no. 48321/99) Judgment (ECtHR) 2003 ........................ 7.12
Sneersone and Kampanella v. Italy (Application no. 14737/09) Judgment (ECtHR)
2011 .................................................................................................................. 9.18, 11.08
Soares de Melo v. Portugal (Application no. 72850/14) Judgment (ECtHR)
2016 ............................................................................................................................9.13
Sommerfeld v. Germany (Application no. 31871/96) Judgment (ECtHR)
2003 .................................................................................................................. 9.16, 12.24
Sorensen and Rasmussen v. Denmark (Application nos. 52562/99 and 52620/99)
Judgment (ECtHR) 2006 ......................................................................................... 15.10
Stochlak v. Poland (Application no 38273/02) Judgment (ECtHR) 2009 ...................... 11.10
Sylvester v. Austria (Applications nos. 36812/97 and 40104/98) Judgment (ECtHR)
2003 ........................................................................................................................... 11.09
Sunday Times v. United Kingdom (Application no. 6538/74) Judgment (ECtHR)
1979 ........................................................................................................................... 13.10
T. v. United Kingdom (Application no. 24724/94) Judgment (ECtHR)
1999 ......................................................................................... 12.24, 16.13, 40.14, 40.21
Tagayeva and Others v. Russia (Application no. 26562/07 and six other applications)
Judgment (ECtHR) 2017 ........................................................................................... 6.07
Tanda-Muzinga v. France (Application no. 2260/10) (ECtHR) 2014 ............................ 10.14
Tapia Gasca v. Spain (Application no. 20272/06) Judgment (ECtHR) 2009 ................. 11.10
Tarakhel v. Switzerland (Application no. 29217/12) Judgment (ECtHR) 2014 ............. 22.12
Timishev v. Russia (Applications nos. 55762/00 and 55974/00) Judgment (ECtHR)
2005 ........................................................................................................................... 28.11
Tlapak and Others v. Germany (Applications nos. 11308/16 and 11344/16) Judgment
(ECtHR) 2018 ............................................................................................................ 9.12
Tyrer v. United Kingdom (Application no. 5856/72) Judgment (ECtHR) 1978 ........... 37.09
United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (Application
no. 44079/98) Judgment (ECtHR) 2005 ................................................................. 15.11
V. v. United Kingdom (Application no. 24724/93) Judgment (ECtHR)
1999 ......................................................................................... 12.24, 16.13, 40.14, 40.17
V.K. v. Russia (Application no. 68059/13) Judgment (ECtHR) 2017 ............................ 19.18
Vavřička v. Czech Republic (Application nos. 47621/13, 3867/14, 73094/14, 19298/15,
19306/15, 43883/15) Judgment (ECtHR) 2013 ...................................................... 24.38
Vinter and Others v. United Kingdom (Applications nos. 66069/09, 130/10 and
3896/10) Judgment (ECtHR) 2013 ......................................................................... 37.08
Vo v. France (Application no. 53924/00) Judgment (ECtHR) 2004 ................................ 6.16
Vujica v. Croatia (Application no. 56163/12) Judgment (ECtHR) 2015 ............... 3.19, 16.13
W. v. United Kingdom (Application no. 9749/82) Judgment (ECtHR) 1987 ................. 9.16
xxv
TABLE OF CASES
Wallova and Walla v. Czech Republic (Application no. 23848/04) Judgment

(ECtHR) 26 October 2006 ........................................................................................ 3.20
Wetjen and Others v. Germany (Applications nos. 68125/14 and 72204/14) Judgment
(ECtHR) 2018 ............................................................................................................ 9.12
Winterwerp v. Netherlands (Application no. 6301/73) Judgment (ECtHR) 1979 ......... 37.13
Wunderlich v. Germany (Application no. 18925/15) Judgment (ECtHR) 2019 ... 9.12, 28.02
X. v. Latvia (Application no. 27853/09) Judgment (ECtHR) 2013 ................................ 11.08
X and Y v. Netherlands (Application no. 8978/80) Judgment (ECtHR) 1985 .............. 34.08
Ziliberberg v. Moldova (Application no. 61821/00) Judgment (ECtHR) 2005 .............. 15.07
Zorica Jovanovic’ v. Serbia (Application no. 21794/08) Judgment (ECtHR) 2013 .......... 7.17
Inter-American Court of Human Rights (IACtHR)
Advisory Opinion on Juridical Condition and Human Rights of the Child (IACtHR)
2002 ........................................................................................................................... 10.15
Advisory Opinion on the Rights and Guarantees of Children in the Context of
Migration and/or in Need of International Protection (IACtHR) 2014 ..... 10.15, 22.15
Advisory Opinion: La Institución del Asilo y su Reconocimiento como Derecho
Humano en el Sistema Interamericano de Protección (Institution of Asylum and
Its Recognition as a Human Right In the Inter-American System of Protection)
(IACtHR) 2018 ........................................................................................................ 22.15
Case of the Kaliña and Lokono Peoples v. Suriname Judgment of November 25, 2015
(Merits, Reparations and Costs) (IACtHR) 2015 ................................................... 30.14
Case of Kichwa Indigenous People of Sarayaku v. Ecuador (Merits, Reparations,
Costs) (IACtHR) 2012 ............................................................................................. 30.17
Case of the Saramaka People v. Suriname Judgment of November 28, 2007
(Preliminary Objections, Merits, Reparations, and Costs) (IACtHR) 2007 .......... 30.17,
30.18
Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29,
2006 (Merits, Reparations and Costs) (IACtHR) 2006 .......................................... 30.16
Case of the Street Children (Villagrán-Morales et al.) v. Guatemala, Merits, 1999 ........ 6.03,
6.05, 19.23
Fornerón and Daughter v. Argentina (Merits, Reparations, and Costs) (IACtHR)
2012 ........................................................................................................................... 35.09
Garífuna Punta Piedra Community and its Members v. Honduras Judgment of
8 October 2015 (Merits, Reparations and Costs) (IACtHR) 2015 ........................ 30.14
Girls Yean and Bosico v Dominican Republic (Application no. 12.189) Judgment,
2005 ................................................................................................................... 7.07, 7.08
Gómez-Paquiyauri Brothers v. Peru (Merits, Reparations and Costs), 2004 ........ 6.06, 19.23,
37.07
Juvenile Re-education Institute v. Paraguay (Preliminary Objections, Merits,
Reparations and Costs) (IACtHR) 2004 ...................................................... 24.19, 37.09
Mayagna (Sumo) Awas Tingni Community, Case of the v. Nicaragua Judgment
August 31, 2001 (Merits, Reparations and Costs) (IACtHR) 2001 ....................... 30.14
Mendoza and others v. Argentina (Preliminary objections, merits and reparations)
(IACtHR) 2013 ........................................................................................................ 37.11
xxvi
TABLE OF CASES
Ramírez Escobar and Others v. Guatemala (Merits, Reparations and Costs), 2018 ........ 3.05,
9.06, 9.14, 9.16, 35.09
Ramirez Escobar v. Guatemala (Application no. 12.896) Judgment
2018 ........................................................................................... 8.04, 21.04, 21.06, 35.07
Rejection to the Request of Advisory Opinion submitted by the Inter-American
Commission of Human Rights: Order of the IACtHR January 27, 2009 ............. 19.23
Ricardo Canese v. Paraguay (Application no. 12032) Judgment (IACtHR) 2004 .......... 41.01
International Criminal Court (ICC)
Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thoma
Lubanga Dyilo (Application no. 01/04-01/06) Judgment (ICC) 2012 .......... OPAC.05,
OPAC.08
Survivor’s Network of Those Abused by Priests v. the Pope, et al. (ICC) 2013 ............ 34.07
United Nations HRC
Bronson Blessington and Matthew Elliot v. Australia (Communication No. 1968/2010)

Views (HRC) 2014 ........................................................................................ 37.11, 37.12
Corey Brough v. Australia (Communication No. 1184/2003) Views (HRC) 2006 ........ 40.16
Lyubov Kovaleva and Tatyana Kozyar v. Belarus (Communication No. 2120/2011) Views
(HRC) 2012 ........................................................................................................ OPIC.15
NATIONAL CASES
Belgium
Agnes School v. Franse Gemeenschapsregering (Application no. 168/2009) Judgment

(Constitutional Court) 2009 ..................................................................................... 29.10
Canada
Brown v. Canada (Attorney General) (Superior Court of Justice, Ontario) 2017 ........... 30.04
India
Peoples’ Union for Civil Liberties v. Union of India Judgment (Sup Ct) 2001 .............. 27.10
Italy
Supreme Court of Cassation (1996) ................................................................................. 19.16
xxvii
TABLE OF CASES
South Africa
Government of the Republic of South Africa and Others v Grootboom and Others
Judgment (Constitutional Court) 2000 .................................................................... 27.06
Khosa and others v. Minister of Social Development and others, Mahlaule and another v.
Minister of Social Development Judgment (Constitutional Court) 2004 ............... 26.11
UK
M, Re, 2 FLR 441 [2 January 1996] .................................................................................. 3.20
USA
Juliana v. United States, First Amended Complaint for Declaratory and Injunctive Relief;
Case No.: 6:15-cv-01517-TC (US District Court, District of Oregon, Eugene
Division) 2015 ........................................................................................................... 24.20
Roper v. Simmons (US Supreme Court) 543 U.S. 551 2005 21–5 .................................. 37.08
xxviii
TABLE OF LEGISLATION
CONVENTIONS AND Art 6.2 .......... 6.01, 6.02, 6.11, 6.12, 6.19,
INTERNATIONAL INSTRUMENTS 44.02
Art 7 ... I.79, 7.01–7.17, 8.01, 9.02, 18.12,
Convention on the Rights of the Child 21.13, 44.02
(CRC) Art 7(2) ............................................ 20.01
Preamble ....... I.27, P.01–P.08, 1.02, 1.03, Art 8 ..... I.55, I.79, 7.08, 8.01–8.08, 9.02,
6.16 12.24, 13.05, 44.02
Pt I ...................................................... I.10 Art 8.2 ................................................ 8.02
Pt II .................................................... I.10 Art 9 ........... 3.08, 5.06, 9.01–9.22, 10.01,
Pt III ................................................... I.10 10.09, 10.10, 14.14, 16.07, 18.12,
Art 1 .... I.70, P.06, 1.01–1.12, 2.03, 6.14, 20.05, 20.10, 44.02
6.16, 44.02, OPSC.01 Art 9.1 ....... 9.05, 9.10, 9.14, 10.01, 30.03
Art 2 ....... I.13, I.17, I.18, I.47, I.64, I.79, Art 9.2 ........................... 9.03, 9.15, 12.30
2.01–2.19, 4.09, 9.03, 23.01, 26.11, Art 9.3 ...... 9.07, 9.18, 9.19, 12.24, 37.17,
44.02, OPIC.04 40.10
Art 2.1 ............................. 2.01, 2.02, 2.03 Art 9.4 ................................................ 9.20
Art 2.2 ................................................ 2.02 Art 9.5 ................................................ 9.02
Art 3 ... I.17, I.18, 3.01–3.32, 9.03, 11.10, Art 9.6 ................................................ 9.02
20.08, 20.11, 21.02, 40.10, 44.02 Art 10 ....... 3.08, 9.02, 9.04, 10.01–10.16,
Art 3.1 .......... 3.01, 3.02, 3.03, 3.04, 3.07, 22.05, 22.13, 22.16, 40.09, 44.02,
3.08, 3.09, 3.15, 3.17, 3.24, 3.25, OPIC.03
3.27 Art 11 ............... 9.04, 11.01–11.16, 35.03,
Art 3.2 ........... 3.01, 3.02, 3.03, 3.23, 3.24 44.02, OPSC.01
Art 3.3 .......... 3.01, 3.02, 3.03, 3.25, 3.26, Art 11.2 ............................................ 11.11
18.09, 20.08 Art 12 .... I.13, I.17, I.18, I.70, 3.25, 3.27,
Art 4 .............. I.38, I.47, I.51, P.07, 3.23, 3.29, 3.31, 3.32, 5.11, 5.12, 6.15,
4.01–4.12, 6.02, 12.05, 19.09, 19.12, 9.03, 12.01–12.33, 13.03, 13.09,
19.13, 23.08, 24.06, 24.09, 24.10, 17.17, 20.11, 40.10, 40.28, 44.02,
24.38, 26.05, 44.02, OPIC.24 OPIC.07
Art 4.2 ................................................ 4.05 Art 12.1 ..................... 12.24, 12.25, 12.26
Art 5 ..... I.16, I.21, I.79, 3.23, 3.27, 3.31, Art 12.2 ............ 9.15, 12.24, 12.25, 40.10
5.01–5.15, 9.02, 12.22, 12.30, 13.08, Arts 13–15 .......................................... I.54
14.10, 16.02, 16.07, 17.08, 17.17, Arts 13–16 ....................................... 17.09
18.04, 20.06, 40.06, 40.10, 44.02 Arts 13–17 ............................ 13.07, 44.02
Art 6 ...... I.13, I.15, I.17, I.18, I.79, 1.02, Art 13 .................. I.54, I.70, 6.15, 12.30,
1.04, 6.01–6.19, 12.24, 15.06, 27.01, 13.01–13.13, 14.06, 15.02, 16.07,
27.07, 27.11, 37.10, 44.02 16.08, 17.08, 17.11, 17.14
Art 6.1 ........... I.55, 6.01, 6.02, 6.04, 6.08 Art 13.2 ................................. 13.03, 13.10
xxix
Art 14 .......... I.54, I.55, I.70, 5.12, 13.09, Art 21(b) ............................... 21.04, 21.05
14.01–14.15, 16.08, 46–54.09 Art 21(c) ........................................... 21.04
Art 14.1 ............................................ 12.30 Art 21(d) .......................................... 21.04
Art 14.2 ..................... 14.10, 14.12, 14.13 Art 21(e) ........................................... 21.04
Art 14.3 ............................................ 14.04 Art 21a ............................................. 12.30
Art 14(13)(b) .................................... 40.09 Art 22 .................... I.35, I.51, I.79, 10.10,
Art 14(16) ........................................ 40.09 22.01–22.16, 31.16, 37.14, 37.18,
Art 15 .... I.54, 13.02, 13.08, 13.12, 14.06, 44.02, OPIC.03
15.01–15.17, 16.08, 32.11, 41.04 Art 22.1 ................................. 22.04, 22.10
Art 15.1 ................................. 12.30, 15.05 Art 22.2 ................................. 22.04, 22.05
Art 15.2 ................................. 15.06, 15.10 Art 23 ... 6.13, 23.01–23.12, 29.05, 31.17,
Art 15(11) ........................................ 40.09 44.02
Arts 16–17 .......................................... I.56 Art 23.1 ................................. 12.30, 23.04
Art 16 ...... I.54, 9.02, 13.08, 13.10, 13.12, Art 23.2 ................................. 23.02, 23.07
15.02, 16.01–16.18, 20.05, 40.17 Art 23.3 ............................................ 23.02
Art 17 ................. I.51, I.70, 12.30, 16.17, Art 23.4 ................................. 23.02, 23.06
17.01–17.17, 30.09, 34.14 Art 24 .... I.51, I.56, I.60, I.79, 1.04, 3.12,
Art 17.1 .......... 17.03, 17.04, 17.05, 17.10 4.06, 4.08, 5.15, 24.01–24.43, 27.07,
Art 17.2(a) ........................................ 17.05 27.11, 28.14, 33.03, 33.05, 39.03,
Art 17.2(b)–(d) ................................. 17.06 44.02, OPIC.03
Art 17.2(b) ................. 17.04, 17.06, 17.07 Art 24.1 ..................... 24.01, 24.02, 24.07
Art 17.2(c) ............................ 17.06, 17.07 Art 24.2 ....................... 6.10, 24.01, 24.15
Art 17.2(d) ............................ 17.06, 17.07 Art 24.2(b) ....................................... 24.18
Art 17.2(e) ...... 17.08, 17.09, 17.10, 17.13 Art 24.2(c) ........................................ 24.20
Art 17(e) ........................................... 13.05 Art 24.2(d) ............................ 24.21, 24.26
Art 18 ... I.20, I.92, 3.04, 3.08, 3.23, 3.26, Art 24.2(e) ........................................ 24.22
5.06, 6.13, 9.02, 17.08, 18.01–18.12, Art 24.2(f) ........................................ 24.25
20.01, 20.05 Art 24.3 ....................... 4.06, 24.01, 24.15
Art 18.1 ................................. 18.03, 44.02 Art 24.4 ..................... 24.01, 24.07, 24.13
Art 18.2 ............ I.20, 18.05, 18.06, 26.10, Art 24(b) .......................................... 24.19
44.02 Art 25 ............. 20.08, 23.10, 25.01–25.04,
Art 18.3 .......... 18.08, 18.09, 26.06, 44.02 44.02
Art 19 .......... I.45, I.56, I.79, 5.05, 17.08, Art 26 ....... I.56, 4.08, 26.01–26.11, 44.02
19.01–19.27, 20.05, 24.29, 24.34, Art 26.2 ............................................ 26.03
28.02, 28.09, 31.11, 34.08, 34.09, Art 27 ... I.15, I.21, I.56, 5.06, 5.10, 6.10,
34.12, 37.09, 39.01, 44.02 6.13, 18.02, 18.04, 26.01, 26.10,
Art 19.1 ............................................ 19.05 27.01–27.14
Art 20 .................. 3.08, 3.25, 7.15, 18.07, Art 27.1 ................................. 27.03, 44.02
20.01–20.18, 21.05, 21.09, 22.05, Art 27.2 ........................ I.72, 27.03, 44.02
23.09, 25.03, 40.25, 44.02, 46–54.09 Art 27.3 ................................. 27.04, 44.02
Art 20.1 ................................. 20.04, 20.07 Art 27.4 ............................................ 44.02
Art 20.2 ................................. 20.04, 20.07 Arts 28–29 .......................................... I.15
Art 20.3 .......... 20.02, 20.04, 20.12, 20.17 Art 28 ............ I.51, I.56, I.70, 3.12, 4.08,
Art 21 ......... I.70, 3.08, 3.17, 7.15, 20.13, 14.13, 17.16, 19.10, 23.11,
20.17, 21.01–21.16, 30.04, 44.02, 28.01–28.23, 29.02, 39.09, 41.04,
46–54.09, OPSC.03, OPSC.05 44.02, OPAC.11
Art 21(b)-(e) .................................... 21.04 Art 28.2 ................................. 19.10, 28.09
xxx
Art 28.3 ............................................ 28.23 Art 38 ...... I.70, I.79, 38.01–38.13, 39.01,
Art 29 ...... I.52, 6.13, 17.11, 28.01, 28.02, 39.12, 44.02, OPAC.02, OPAC.04,
29.01–29.10, 30.09, 39.09, 44.02, OPAC.05
OPAC.11 Art 38.1 ..................... 38.02, 38.05, 38.09
Art 29.1 ......... 28.21, 28.23, 29.01, 29.02, Art 38.3 .................................... OPAC.09
29.03, 29.05, 29.07, 29.08 Art 39 ..... 39.01–39.14, 44.02, OPAC.14,
Art 29.1(a) ........................................ 29.02 OPAC.21, OPSC.16
Art 29.1(b) ....................................... 29.02 Art 40 ...... I.55, 1.10, 12.24, 15.11, 37.05,
Art 29.1(c) ........................................ 29.02 37.07, 39.06, 39.12, 40.01–40.28,
Art 29.1(d) ....................................... 29.02 44.02, OPIC.09
Art 29.1(e) ........................................ 29.02 Art 40.1 ................................. 40.04–40.07
Art 29.2 ..................... 28.01, 29.01, 29.10 Art 40.2 ...................... 12.30, 40.08–40.17
Art 29(d) .......................................... 39.09 Art 40.2(a) .................... I.55, 40.08, 40.11
Art 30 ....................... 17.08, 21.10, 28.21, Art. 40.2(b)(i) ....................... 40.08, 40.11
30.01–30.18, 31.18, 44.02 Art. 40.2(b)(ii) ........... 40.08, 40.12, 40.13
Art 31 ............. 12.30, 13.06, 31.01–31.22, Art 40.2(b)(iii) ............ 3.08, 37.09, 40.13,
44.02 40.14
Arts 32-35 ........................................ 36.01 Art 40.2(b)(iv) ....................... 40.08, 40.15
Art 32 ... 6.13, 15.15, 19.01, 26.10, 28.21, Art 40.2(b)(v) ........................ 40.08, 40.16
31.11, 32.01–32.15, 33.08, 36.02, Art 40(2)(b)(vi) ..................... 16.04, 40.08
44.02, OPSC.03 Art 40.2(b)(vii) ...................... 40.08, 40.17
Art 32.1 .............................................. I.55 Art 40.3 ................................. 40.18–40.23
Art 32.2 ............................................ 32.05 Art 40.3(a) ........................................ 40.20
Art 32.2(c) ........................................ 32.07 Art 40.3(b) ............................ 40.22, 40.23
Art 33 .... I.79, 33.01–33.16, 36.02, 44.02, Art 40.4 ................................. 40.24-40.26
OPSC.03 Arts 41–54 ................................. OPSC.17
Art 34 ............... I.79, 17.08, 19.01, 31.11, Art 41 ............ 15.16, 28.04, 33.11, 37.23,
34.03–34.14, 35.07, 36.02, 39.01, 40.09, 41.01–41.04, OPAC.18
44.02, OPSC.03 Art 42 ..... 42.01–42.12, 44.02, OPAC.14,
Art 34(a)(b)(c) .................................. 34.01 OPIC.31
Art 35 .... I.79, 11.01, 17.08, 19.01, 34.04, Art 43 ................... 43.01-43.12, 46–54.04
35.01–35.16, 36.02, 39.01, 44.02, Art 43.2 ................................. 43.03, 43.08
OPSC.01, OPSC.03, OPSC.05, Art 43.3 ............................................ 43.04
OPSC.07 Art 43.6 ..................... 43.04, 43.05, 43.06
Art 36 ....................... 17.08, 17.11, 19.01, Art 43.7 ............................................ 43.05
36.01–36.05, 39.01, 44.02, OPSC.03 Art 44 ............... I.39, 42.10, 43.02, 43.10,
Art 37 ............... I.28, 12.24, 15.06, 22.16, 44.01–44.07
37.01–37.24, 39.01, 40.25, 41.04, Art 44(1)(b) ............................... I.74, I.75
44.02, 46–54.08 Art 44.6 ............................................ 44.02
Art 37(a) ............ I.55, 1.07, 37.03, 37.04, Art 45 ................. I.40, I.51, 43.02, 44.05,
37.08-37.12, 37.20, 44.02 45.01–45.06, OPIC.30
Art 37(b)–(d) ........................... I.55, 37.03 Art 45(a) ........................................... 45.02
Art 37(b) ......... 37.04, 37.05, 37.13, 37.14 Art 45(b) .......................................... 45.04
Art 37(c) .......... 3.08, 16.07, 37.04, 37.05, Art 45(c) .................................. I.53, 45.05
37.15, 37.17, 37.18, 37.20, 37.21 Art 45(d) .......................................... 45.06
Art 37(d) .................... 12.30, 37.04, 37.22 Arts 46-54 ................ 46–54.01–46–54.11,
Art 37.2–3 .......................................... 1.08 OPAC.18
xxxi
Art 46 ............................................... 14.10 Art 3.4 ....................................... OPSC.08

Arts 47–48 .................................. 46–54.02 Art 4 .......................................... OPSC.10
Art 49 ......................................... 46–54.03 Art 4.2 .............................. I.48, OPSC.10
Art 50 ......................................... 46–54.04 Art 4.3 ....................................... OPSC.10
Art 51 ....... 46–54.05, 46–54.06, 46–54.07 Art 5 .......................................... OPSC.11
Art 52 ......................................... 46–54.10 Art 6 .......................................... OPSC.12
Optional Protocol on the Involvement of Art 7 .......................................... OPSC.13
Children in Armed Conflict Art 8 ................................. 3.08, OPSC.15
(OPAC), 2000 .... 1.08, 14.03, 38.01, Art 8.1(g) .................................. OPSC.15
38.02, 38.03, 38.04, 38.11, 38.13, Art 8.3 ....................................... OPSC.15
39.01, 39.12, 41.04, 44.02, Art 8.6 ....................................... OPSC.15
OPAC.01–OPAC.21, OPIC.01, Art 9 ............................... 39.01, OPSC.16
OPIC.06, OPIC.16, OPIC.22, Art 9.1 ....................................... OPSC.16
OPIC.26, OPIC.36 Art 9.2 ....................................... OPSC.16
Art 1 ................................ 1.07, OPAC.04 Art 9.3 ....................................... OPSC.16
Art 2 ................................ 1.07, OPAC.06 Art 9.4 ....................................... OPSC.16
Art 3 ................................ 1.07, OPAC.07 Art 9.5 ....................................... OPSC.16
Art 3.4 ...................................... OPAC.09 Art 10 ...................................... I.51, 39.01
Art 3.5 ...................................... OPAC.11 Art 10.1 ..................................... OPSC.12
Art 4 ...................... OPAC.12, OPAC.13 Art 10.2 ..................................... OPSC.12
Art 4.1 ...................................... OPAC.12 Art 10.3 ..................................... OPSC.12
Art 4.2 ...................................... OPAC.12 Arts 11-17 ................................. OPSC.17
Art 4.3 ...................................... OPAC.12 Art 12 ........................................ OPSC.18
Art 5 ......................................... OPAC.18 Optional Protocol on a Communications
Art 6 ..................... 1.48, 39.01, OPAC.14 Procedure (OPIC), 2011 ......... 10.15,
Art 6.1 ...................................... OPAC.14 42.10, 42.12, 43.01,
Art 6.2 ...................................... OPAC.14 OPIC.01–OPIC.37
Art 6.3 ...................................... OPAC.14 Pt II ............................................ OPIC.07
Art 7 ... I.51, 39.01, OPAC.15, OPAC.16 Preamble ......... 3.08, OPIC.04, OPIC.05,
Arts 9–14 .................................. OPAC.18 OPIC.37
Optional Protocol on the Sale of Art 1 ........................................... OPIC.06
Children, Child Prostitution and Art 2 ............... 3.08, OPIC.07, OPIC.08,
Child Pornography (OPSC) ... 11.01, OPIC.12
34.01, 34.03, 34.04, 35.02, 35.08, Art 3 ................ 3.08, OPIC.07, OPIC.08
35.09, 39.01, 44.02, Art 3.2 ........................................ OPIC.12
OPSC.01–OPSC.18, OPIC.01, Art 4 .................................. I.48, OPIC.10
OPIC.06, OPIC.16, OPIC.22, Art 5 ................. I.48, OPIC.11, OPIC.12
OPIC.26, OPIC.36 Art 5.1 ........................................ OPIC.06
Preamble ............................................. 3.08 Art 6 ........................................... OPIC.14
Art 1 .......................................... OPSC.04 Art 7 ......................... OPIC.16, OPIC.19
Art 1(e) ............................................ 16.04 Art 7.7 ........................................ OPIC.33
Art 2 .......................................... OPSC.04 Arts 8–11 ................................... OPIC.19
Art 2(a) ............................................ 35.07 Art 8.1 ........................................ OPIC.19
Art 3 ... 2.04, 35.07, OPSC.07, OPSC.10, Art 8.2 ...................... OPIC.19, OPIC.23
OPSC.11 Art 9.1 ........................................ OPIC.20
Art 3.1(a)(i)b .................................... 35.05 Art 9.2 ........................................ OPIC.20
Art 3(1)(a)(ii) ............................ OPSC.05 Art 10 ......................................... OPIC.23
xxxii
Art 10.1 ...................................... OPIC.21 Art 2 ................................................... 1.07

Art 10.2 ...................................... OPIC.21 Art 4 ................................................... 6.01
Art 10.3 .................... OPIC.14, OPIC.21 Art 5(3) ............................................ 37.08
Art 10.4 ...................................... OPIC.24 Art 6 .......................................... 7.02, 7.13
Art 10.5 ...................................... OPIC.21 Art 7 ...................................... 13.07, 13.09
Art 11.1 .................... OPIC.22, OPIC.23 Art 8 ................................................. 15.01
Art 11.2 ...................................... OPIC.22 Art 9 ................................................. 14.09
Art 12 ......................................... OPIC.26 Art 10 ............................................... 16.01
Art 12.1.6 ................................... OPIC.26 Art 11.2 .............................................. I.29
Art 13 ....................... OPIC.28, OPIC.29 Art 19 ................................................. 9.08
Art 13.2 ...................................... OPIC.28 Art 24(b) .......................................... 21.07
Art 13.3 ...................................... OPIC.28 Art 25 ............................................... 21.07
Art 13.4 ...................................... OPIC.29 Art 25.2(b) ....................................... 10.03
Art 13.7 ...................................... OPIC.28 American Convention on Human Rights
Art 14 ......................................... OPIC.29 (ACHR), 1969 ......... I.30, 7.12, 21.04,
Art 14.2 ...................................... OPIC.29 35.09
Art 15 ................................ I.51, OPIC.30 Art 4 ................................................... 6.01
Art 15.1 ...................................... OPIC.30 Art 4(5) ............................................ 37.08
Art 15.2 ...................................... OPIC.30 Art 5 ................................................. 40.01
Art 16 ......................................... OPIC.32 Art 5(5) ............................................ 40.18
Art 17 .............................. 42.12, OPIC.31 Art 11 ............................................... 16.01
Art 18 ......................................... OPIC.32 Art 12 ............................................... 14.09
Art 19 ......................................... OPIC.32 Art 13 ............................................... 13.07
Art 19.1 ...................................... OPIC.03 Art 13.4 ............................................ 17.12
Art 20 ......................................... OPIC.33 Art 15 ............................................... 15.01
Art 21 ......................................... OPIC.32 Art 16 ............................................... 15.01
Art 22 ......................................... OPIC.32 Art 17 ................................................. I.30
Art 23 ......................................... OPIC.32 Art 19 ............................... I.30, I.55, 9.06
Art 24 ......................................... OPIC.32 Art 20 ........................................ I.30, 7.02
Rules of Procedure ... OPIC.08, OPIC.11, Art 27 ................................................. I.55
OPIC.14, OPIC.16, OPIC.18, Art 27.2 ..................................... I.55, 6.08
OPIC.20, OPIC.23, OPIC.26, Additional Protocol, Art 16 ............... 9.06
OPIC.28 Beijing Rules see United Nations Minimum
1959 Declaration of the Rights of the Child Rules for the Administration of
see UN Declaration of the Rights of Juvenile Justice
the Child, 1959 Charter of Fundamental Rights of the
African Charter on Human and People’s European Union, 2012 .................. 3.05
Rights (Banjul Charter, ACHPR) Art 11 ............................................... 13.07
(1982) Art 12 ............................................... 15.01
Art 8 ................................................. 14.09 Art 24.3 .............................................. 9.07
Art 9 ................................................. 13.07 Convention for the Protection of Human
Art 10 ............................................... 15.01 Rights and Dignity of the Human
Art 11 ............................................... 15.01 Being with regard to the Application
African Charter on the Rights and Welfare of Biology and Medicine: Convention
of the Child (ACRWC), 1990 .... I.29, on Human Rights and Biomedicine
3.05, 3.17, 7.12, 10.03, 13.07, 21.07, (Oveido Convention), Council of
21.08, OPAC.13, OPSC.06, OPIC.27 Europe (CoE) (1997)
xxxiii
Art 6.2 .............................................. 24.39 Art 10 ................................................. 7.12

Convention on Consent to Marriage, Convention on the Rights of Persons with
Minimum Age for Marriage and Disabilities (CRPD), UN
Registration of Marriages, 1962 (2006) .................... 23.01, 23.02, 23.12
Art. 1.1 ............................................... I.60 Art 4.2 ................................................ 4.07
Art 2 ................................................... I.60 Art 5 ................................................... I.16
Convention on Psychotropic Substances Art 7 ........................................ I.28, 23.01
(1971) .......................................... 33.01 Art 10 ................................................. 6.01
Convention on the Elimination of All Art 13.1 ............................................ 40.16
Forms of Racial Discrimination Art 18 ................................................. 7.02
(CERD/ICERD), 1965 ............... 2.12, Art 21 ............................................... 17.08
OPIC.27 Art 21(b) .......................................... 40.16
Art 1 ................................................... I.16 Art 22 ............................................... 16.04
Art 2 ................................................... I.16 Art 23 ................................................. 9.05
Art 5 ........................................ I.16, 14.09 Art 23.4 ..................................... 9.05, 9.13
Convention on the Elimination of All Art 24 ............................................... 28.13
Forms of Discrimination against Art 24.1 ............................................ 29.05
Women, 1979 (CEDAW) ........... I.60, Art 24.3 .............................................. 9.03
4.03, 24.31, 41.02 Arts 29–30 .......................................... I.16
Art 1 ................................................... I.16 Optional Protocol .... OPIC.06, OPIC.11,
Art 2 ................................................... I.16 OPIC.17, OPIC.25, OPIC.28
Art 2(f) ............................................. 24.29 Convention relating to the Status of
Art 5(b) ................................... 3.05, 18.02 Refugees (1951) ........................... 22.10
Art 11 ................................................. I.16 Art 31.1 ............................................ 22.10
Art 16.1(b) .......................................... I.60 Art 32.1 ............................................ 22.10
Art 16.1(d) ......................................... 3.05 Art 42.1 ............................................ 22.10
Art 16(d) .......................................... 18.02 1967 Protocol ................................... 22.10
Art 16.2 .............................................. I.60 Council of Europe (CoE) Convention on
Art 22 ............................................... 45.02 Action against Trafficking in Human
Optional Protocol .... OPIC.06, OPIC.11, Beings (2005) .............................. 35.06
OPIC.22 Art 2 ................................................. 35.06
Convention on Protection of Children Art 5.3 .............................................. 35.06
against Sexual Exploitation and Sexual Art 6(d) ............................................ 35.06
Abuse, Council of Europe (CoE) Art 18 ............................................... 35.06
(Lanzarote Convention) 2007 ...... I.31, Art 19 ............................................... 35.06
34.12, 39.10, OPSC.06, OPSC.08 Art 20 ............................................... 35.06
Art 14.11 .......................................... 39.10 Art 21 ............................................... 35.06
Art 18 ............................................... 34.12 Art 22 ............................................... 35.06
Art 18.1(b) ....................................... 34.12 Council of Europe (CoE) Convention on
Art 26 ........................................ OPSC.08 Cybercrime (Budapest
Art 26.2 ..................................... OPSC.08 Convention) .......................... OPSC.09
Art 26.3 ..................................... OPSC.08 Art 9 .......................................... OPSC.09
Art 42 ........................................ OPSC.08 Council of Europe Convention on
Rules ................................................. 34.13 preventing and combating violence
Convention on the Reduction of against women and domestic violence
Statelessness, 1961 ........................ 7.12 (Istanbul Convention) (2011) .... 24.29,
Art 2 ................................................... 7.12 24.34
xxxiv
Preamble ........................................... 19.08 EU Directive 2003/86 Family

Art 13.1 ............................................ 19.08 reunification ................................. 10.01
Art 17.2 ............................................ 19.08 Art 2(d) ............................................ 10.01
Art 18.3 ............................................ 19.08 EU Directive 2011/92 Combating the sexual
Art 22.2 ............................................ 19.08 abuse and sexual exploitation of
Art 26 ............................................... 19.08 children and child
Art 31 ............................................... 19.08 pornography ... 34.12, 39.10, OPSC.08
Art 36 ............................................... 34.12 Art 12 ........................................ OPSC.08
Art 37 ............................................... 24.34 Art 13 ........................................ OPSC.08
Art 38 ............................................... 24.34 EU Directive 2013/48 Right of access to a
Art 42 ............................................... 24.34 lawyer in criminal proceedings and in
Art 46(d) .......................................... 19.08 European arrest warrant proceedings,
Council of Europe (CoE), European Rules and on the right to have a third party
for juvenile offenders subject to informed upon deprivation of liberty
sanctions or measures (2008) ..... 37.07, and to communicate with third persons
40.02 and with consular authorities while
Art 7 ................................................. 37.08 deprived of liberty ....................... 40.13
Art 8 ................................................. 37.08 EU Directive 2016/800 Procedural
r 21.5 ................................................ 37.02 safeguards for children who are
r 117 ................................................. 40.06 suspects or accused persons in criminal
r 119 ................................................. 40.06 proceedings .................................. 40.13
Council of Europe (CoE) Guidelines on EU Regulation 2201/2003 Jurisdiction and
Child-Friendly Justice ................ 40.02, the recognition and enforcement of
OPIC.09 judgments in matrimonial matters and
CRC Committee, Rules of Procedure matters of parental responsibility
r 16 ................................................... 43.11 (Brussels II-a, Brussels II-bis) .... 11.04,
r 23 ................................................... 43.11 11.05, 11.06, 11.12
r 27 ................................................... 43.10 EU General Data Protection Regulation
r 39 ................................................... 43.12 (GDPR), 2016/679 ..................... 16.18
r 59 ................................................... 43.12 Rec 38 .............................................. 16.18
Declaration of the Rights of the Child, Rec 58 .............................................. 16.18
Geneva 1924 ....... I.04, I.05, I.58, P.02 Art 8 ................................................. 16.18
Art 4 ................................................. 32.09 Art 17 ............................................... 16.18
Declaration on Social and Legal Principles European Convention on Human Rights
relating to the Protection and Welfare (ECHR) (Convention for the
of Children, with Special Reference to Protection of Human Rights and
Foster Placement and Adoption Fundamental Freedoms), 1950 ..... I.31,
Nationally and Internationally ...... P.02 I.56, 2.05, 7.12, 10.15, OPIC.27
Declaration on the Protection of Women Art 1 ................................................... 2.04
and Children in Emergency and Art 2 .......................................... 6.01, 6.07
Armed Conflict ............................. P.02 Art 3 .......................... 19.18, 37.08, 40.17
EU Charter of Fundamental Rights, 2000, Art 5 ...................................... 37.13, 37.23
2007 Art 5(1) ............................................ 37.13
Art 24 ................................................. I.31 Art 6 ...................................... 16.13, 40.01
Art 32 ................................................. I.31 Art 6(1) ............................................ 40.10
xxxv
Art 8 .... 7.05, 7.09, 7.14, 7.17, 8.06, 8.07, Art 77 ............................................... 38.07
8.08, 9.07, 9.09, 9.12, 9.16, 10.13, Art 77.2 ................................. 38.03, 38.07
10.14, 11.02, 11.04, 11.07, 11.09, Art. 77, paras 3–5 ............................ 38.07
11.10, 12.20, 12.24, 16.01, 16.13, Art 78 ............................................... 38.07
40.17 Protocol II ........................................ 38.08
Art 8.2 ................................................ 9.07 Art 4.3(c) .............................. 38.03, 38.08
Art 10 ........................ 13.07, 13.09, 17.10 Art 4.3(e) .......................................... 38.08
Art 11 .................................... 15.01, 15.11 Geneva Convention IV Relative to the
Art 12 ............................................... 14.09 Protection of Civilian Persons in the
Art 14 ...................................... 7.14, 10.13 Time of War, 1949 ..................... 38.06
Art 15 ................................................. I.55 Art 14 ............................................... 38.06
Art 15.2 ..................................... I.55, 6.08 Art 17 ............................................... 38.06
Protocol 13 ....................................... 37.08 Art 23 ............................................... 38.06
European Convention on Nationality, 1997, Art 24 ............................................... 38.06
Council of Europe (ETS 1997 Art 38.5 ............................................ 38.06
No. 166) Art 50 ............................................... 38.06
Art 6 ................................................... 7.12 Guidelines for Action in the Justice System
Art 7 ................................................... 7.12 for Children in Africa (2011), African
European Convention on Recognition and Child Policy Forum .................... 40.02
Enforcement of Decisions concerning Hague Convention on the Civil Aspects of
Custody of Children and on International Child Abduction
Restoration of Custody of Children (HCCA), 1980 ...... 3.05, 11.03, 11.05,
(Luxembourg Convention) (ETS 11.06, 11.07, 11.08, 11.11, 11.12,
no. 105) ....................................... 11.04 11.13, 11.14, 11.15, 35.04, OPSC.03
European Convention on the Adoption of Art 3 ................................................. 11.01
Children, (Revised) (Council of Art 11 ............................................... 11.08
Europe Treaty Series 2008) Art 12 ............................................... 11.08
No. 202 ............................... I.31, 21.12 Art 12.1 ............................................ 11.06
Art 5(1)(b) ........................................ 21.12 Art 12.2 ............................................ 11.06
Art 6 ................................................. 21.12 Art 13.1(a) ............................ 11.06, 11.08
Art 11(3) ............................................ 7.10 Art 13.1(b) ................. 11.06, 11.08, 11.16
Art 12 ................................................. 7.12 Art 13.2 ................................. 11.02, 11.08
Art 22 ................................................. 7.16 Art 20 .................................... 11.06, 11.08
Art 22.3 .............................................. 7.16 Hague Convention on Jurisdiction,
European Convention on the Exercise of Applicable Law, Recognition,
Children’s Rights, 1996 ................. I.31 Enforcement and Cooperation in
Framework Convention on National Respect of Parental Responsibility and
Minorities, Council of Europe Measures for the Protection of
Article 11 ........................................... 7.10 Children .................... 11.04, OPSC.03
Geneva Conventions Hague Convention on Protection of Children
Common Art. 3 ............................... 38.05 and Co-operation in Respect of Inter-
Art. 77 AP Geneva country Adoption (1993) ............. 21.04,
Conventions ...................... OPAC.05 21.07, 21.11, OPSC.03
Protocol I: Protection and Relating to the Havana Rules see United Nations Rules for
Protection of Victims of the Protection of Juveniles Deprived of
International Armed their Liberty
Conflicts ................................... 38.08 ILO Convention 5 ............................... 32.04
xxxvi
ILO Convention 29 on Forced Labour Art 7.2(b) ......................................... 39.01

(2014) Art 7.2(c) .......................................... 39.01
Protocol, Art 3 ................................. 39.01 Inter-American Convention on the
ILO Freedom of Association and Protection International Return of Children
of the Right to Organise Convention (1989) .......................................... 11.04
(1948) No. 87 .............................. 15.16 International Committee of the Red Cross
ILO Indigenous and Tribal Peoples in (ICRC)
Independent Countries Convention r 120 ................................................. 38.09
(Convention 169) ........................ 30.01 r 135 ................................................. 38.09
Preamble ........................................... 30.03 r 136 ................................................. 38.09
Art 1.1(b) ......................................... 30.01 r 137 ................................................. 38.09
Art 1.2 .............................................. 30.01 International Covenant on Civil and
Arts 13–19 ....................................... 30.12 Political Rights (ICCPR) .... I.30, I.47,
Art 13 ............................................... 30.12 I.56, P.02, 2.05, 2.12, 3.05, 15.02,
Art 14 ............................................... 30.12 23.01, 30.10, 40.04, 41.02
Art 15 ............................................... 30.12 Art 2.2 ................................................ 7.01
Art 16 ............................................... 30.12 Art 3 ................................................... 7.01
Art 18 ............................................... 30.12 Art 4 ................................................... I.55
Art 28.1 ............................................ 30.06 Art 4(2) .............................................. 6.08
Art 28.2 ............................................ 30.06 Art 5 ................................................. 41.01
Art 28.3 ............................................ 30.06 Art 6 ........................................ 6.01, 37.10
Art 29 ............................................... 30.06 Art 6.5 ..................................... I.28, 37.08
ILO Minimum Age Admission to Art 7 ................................................. 24.37
Employment Convention (1973) Art 9 ...................................... 37.05, 37.23
No. 138 ..... 15.16, 32.04, 32.05, 32.06, Art 9(1) ............................................ 37.13
32.09 Art 10 ............. 37.05, 37.18, 40.01, 40.09
Art 1 ................................................. 32.06 Art 10.3 ............................................ 37.16
Art 3.1 .............................................. 32.06 Art 12 ........................ 10.05, 10.06, 37.02
Art 3.3 .............................................. 32.06 Art 14 ........................ 37.18, 40.01, 40.02
Art 4.1 .............................................. 32.06 Art 14.1 .............................................. I.28
Art 5.3 .............................................. 32.06 Art 14.3(b) ....................................... 40.13
Art 7 ................................................. 32.06 Art 14.4 .............................................. I.28
Art 7.1 .............................................. 32.06 Art 14.11 .......................................... 16.04
ILO Right to Organise and Collective Art 15 .................................... 40.01, 40.02
Bargaining Convention (1951) Art 15(11) ........................................ 40.11
No. 98 ......................................... 15.16 Art 17 ........................ 16.01, 16.08, 16.09
ILO Social Security (Minimum Standards) Art 18 ........................ 14.01, 14.04, 14.09
Convention No. 102 (1952) ........ 26.01 Art 18.1 ............................................ 14.10
Art 2 ................................................. 26.01 Art 18.3 ............................................ 14.06
ILO Worst Forms of Child Labour Art 18.4 ............................................ 14.10
Convention No. 182 (1999) ....... 32.02, Art 19 ................ I.16, 13.07, 13.08, 13.09
32.05, 32.07, 39.01, OPSC.03, Art 19.1 ............................................ 13.08
OPSC.06 Art 21 .................................... 15.01, 15.14
Art 3 ................................................. 32.07 Art 22 ........................ 15.01, 15.14, 15.16
Art 3(c) ............................................. 33.07 Art 23 ...................................... 5.03, 18.06
Art 6 ................................................. 32.07 Art 23.1 .............................................. 9.05
Art 7 ...................................... 32.07, 39.01 Art 24 ...................... I.16, I.28, 7.01, 9.05
xxxvii
Art 25 ................................................. I.16 Art 74 ......................................... OPIC.27

Art 26 ........................................ I.16, 2.08 International Labour Organisation (ILO) see
Art 27 .................................... 30.03, 30.05 ILO
Optional Protocol ...................... OPIC.06 Lanzarote Convention see Convention on
International Covenant on Economic, Social Protection of Children against Sexual
and Cultural Rights (ICESCR) ..... 2.12, Exploitation and Sexual Abuse,
18.10, 23.01, 26.02, 26.07, 29.04, 41.02 Council of Europe (CoE) (Lanzarote
Art 2 ........................ I.06, I.16, I.55, P.02 Convention)
Art 2.1 .............................................. 24.08 Luxembourg Guidelines: Terminology
Art 4 ........................................ I.56, 28.07 Guidelines for the Protection of
Art 5 ................................................. 41.01 Children from Sexual Exploitation and
Art 8 ........................................ I.16, 15.01 Sexual Abuse, Interagency Working
Art 9 ................................................. 26.02 Group on Sexual Exploitation of
Art 10 .................. I.16, 5.03, 18.06, 36.01 Children, Luxembourg, 2016 ..... 34.04,
Art 10.3 .............................................. I.28 35.07, OPSC.06
Art 10(13) ........................................ 36.01 Millennium Development Goals
Art 11 ........................ 27.01, 27.02, 27.11 (MDGs) ........................................ 6.10
Art 12 .................................... 24.01, 27.11 MDG 1 .............................................. I.36
Art 13 ..... I.16, 28.01, 28.04, 29.05, 29.09 MDG 2 .............................................. I.36
Art 13.1 ............................................ 29.03 MDG 3 .............................................. I.36
Art 13.2 ............................................ 28.04 MDG 4 ................................... I.36, 24.16
Art 13.3 ............................................ 14.10 MDG 5 .............................................. I.36
Art 15 ................................................. I.16 MDG 6 .............................................. I.36
Optional Protocol .... OPIC.06, OPIC.10, MDG 7 ............................................... i.36
OPIC.11, OPIC.16, OPIC.22, Protocol of San Salvador (Additional
OPIC.24, OPIC.25, OPIC.27, Protocol to the to the American
OPIC.28 Convention on Human Rights in the
International Convention for the Protection Area of Economic, Social and Cultural
of All Persons from Enforced Rights), 1988 ................................. I.30
Disappearance (ICED) Art. 15.3(b) ......................................... I.30
Art 25 ............................... I.28, 8.03, 9.05 Art 16 ................................................. I.30
Art 25.1 .............................................. 7.17 Revised European Social Charter (RESC),
Art 25.4 .............................................. 7.17 1996 .............................. I.31, OPIC.13
Art 25.5 .............................................. 7.17 Art 7.10 .............................................. I.31
Art 32 ......................................... OPIC.26 Art 15 ........................ 23.01, 23.12, 28.13
Art 33 ......................................... OPIC.28 Art 17 ................ I.31, 19.21, 19.22, 28.02
International Convention on the Protection Art 30 ............................................... 27.14
of the Rights of All Migrant Workers Rio de Janeiro Declaration and Call for
and Members of Their Families Action of the World Congress III
(CMW), 1990 against Sexual Exploitation of Children
Art 7 ................................................... I.16 and Adolescents, 2008 ............... 35.13,
Art 11 ................................................. 6.01 OPSC.14
Art 12 ............................................... 14.09 Rome Statute creating the International
Art 29 ................................................. I.28 Criminal Court (ICC) ......... OPAC.08
Art 30 ...................................... I.28, 28.21 Art 8(d)(vii) ...................................... 38.13
Art 42 ................................................. I.16 Art. 26 .............................................. 38.13
Art. 45.2–4 ......................................... I.28 Art 8.2 ...................................... OPAC.05
xxxviii
Single Convention on Narcotic Drugs Pr 3 ..................................................... I.05

(1961) as amended ...................... 33.01 Pr 4 ..................................................... I.05
1972 Protocol ................................... 33.01 Pr 5 ..................................................... I.05
Stockholm Declaration and Agenda for Pr 6 ..................................................... I.05
Action of the World Congress against Pr 7 .......................................... I.05, 31.01
Commercial Sexual Exploitation of Pr 8 ..................................................... I.05
Children, 1996 ............................ 34.03 Pr 9 .......................................... I.05, 32.04
Sustainable Development Goals (SDGs), Pr 10 ................................................... I.05
2015 ............................................... 6.10 UN Declaration on the Right to
SDG 1 .......................... I.37, 26.01, 27.01 Development, 1986 ....................... 6.12
SDG 2 .......................... I.37, 26.01, 27.01 UN Declaration on the Rights of Persons
SDG 3 .............................................. 24.16 Belonging to National or Ethnic,
SDG 4 ............... I.37, 28.01, 28.23, 29.03 Religious and Linguistic
SDG 5 ................................... 24.34, 34.11 Minorities .................................... 30.01
SDG 6 .......................... I.37, 26.01, 27.01 UN Declaration on the Rights of
SDG 7 ................................................ I.37 Indigenous Peoples, 2007 .......... 30.01,
SDG 8 ....... I.37, 32.10, 35.10, OPAC.01 30.07
SDG 11 ........................ I.37, 26.01, 27.01 Preamble ........................................... 30.07
SDG 16 ................................. 34.11, 35.10 Art 7 ................................................. 30.07
Sydney Principles 2008: International Art 14.1 ............................................ 30.07
Obesity Taskforce (IOTF) Working Art 17 ............................................... 30.07
Group on Marketing to Art 21 ............................................... 30.07
Children ...................................... 36.05 Art 22 ............................................... 30.07
Tokyo Rules (1990) ............................. 37.05 UN GA, Rio Declaration on Environment
UN Convention against Illicit Traffic in and Development, 1992
Narcotic Drugs and Psychotropic Principle 3 .......................................... I.35
Substances (Vienna Convention), UN GA, Resolution 67/146: Intensifying
1988 ........... 33.01, 33.02, 33.15, 33.16 global efforts for the elimination of
Art 3 ................................................. 33.01 female genital mutilations (20
Art 3(5)(f) ........................................ 33.01 December 2012) ............... 24.31, 24.34
Art 3(g) ............................................ 33.01 UN Guidelines for the Alternative Care of
United Nations (UN) Convention against Children (2009) ................. 9.13, 25.04
Transnational Organized Crime United Nations Guidelines for the
(Palermo Convention) ................. 35.06 Prevention of Juvenile Delinquency
Art 3 ................................................. 35.05 (Riyadh Guidelines), 1990 ......... 17.07,
Protocol to Prevent, Suppress and Punish 40.02, 40.27
Trafficking in Persons Especially UN Human Rights Council, Resolution
Women and Children ............. 35.05, 34/16. Rights of the child: protection
OPSC.07 of the rights of the child in the
Art 3(a) ............................................ 35.04 implementation of the 2030 Agenda
Art 3(d) ............................................ 35.05 for Sustainable Development (24
UN Declaration of the Rights of the Child, March 2017) .................................. I.37
1959 .......... I.04, I.05, I.58, P.02, P.04, United Nations Rules for the Protection of
P.05, 1.02, 3.05, 12.04, 32.04 Juveniles Deprived of their Liberty
Preamble ............................................. I.05 (Havana Rules) 1990 ........ 9.20, 37.05,
Pr 1 ..................................................... I.05 40.02
Pr 2 ..................................................... I.05 r 1 ..................................................... 37.07
xxxix
r 2 ..................................................... 37.14 UN Convention against Torture and other

r 9 ..................................................... 16.04 Cruel, Inhuman or Degrading
r 11 ................................................... 37.02 Treatment or Punishment (OPCAT)
r 12 ................................................... 37.16 (2002) ............................................. I.06
r 13.2 ................................................ 37.14 Art 1(1) ............................................ 37.08
r 17 ................................................... 37.14 Art 2 ................................................. 37.08
r 19 ................................................... 16.04 Art 4(1) ............................................ 37.09
rr 59-62 ............................................ 37.17 Art 13 ............................................... 37.09
r 61 ................................................... 16.07 Art 15 ............................................... 37.09
United Nations Standard Minimum Rules Art 16 ............................................... 37.08
for the Administration of Juvenile Art 20 ......................................... OPIC.28
Justice (Beijing Rules), 1985 ....... P.02, Art 21 ......................................... OPIC.27
9.20, 37.05, 40.02 Optional Protocol, art 4(2) .............. 37.02
r 1.1 .................................................. 40.07 Vienna Convention see UN Convention
r 1.3 .................................................. 40.23 against Illicit Traffic in Narcotic Drugs
r 4 .......................................... 40.20, 40.21 and Psychotropic Substances (Vienna
r 5 ..................................................... 40.04 Convention)
r 5.1 .................................................. 40.25 Vienna Convention on the Law of Treaties
r 7.1 ....................................... 40.08, 40.09 (VCLT), 1969 ....................... 46–54.01
r 8.1 .................................................. 16.04 Art 1(b) ...................................... 46–54.02
r 8.2 .................................................. 40.17 Art 1(d) ...................................... 46–54.05
r 10.3 ................................................ 40.07 Arts 11-17 .................................. 46–54.02
r 11.2 ................................................ 40.23 Art 18 ......................................... 46–54.03
r 11.3 ................................................ 40.23 Arts 19–23 .................................. 46–54.05
r 11.4 ................................................ 37.14 Art 19 ......................................... 46–54.06
r 14.2 ................................................ 40.10 Art 20.5 ...................................... 46–54.06
r 17.1a .............................................. 40.25 Art 21 ......................................... 46–54.06
r 17.2 ................................................ 37.08 Art 31 ........................................ I.71, P.01
r 17.3 ................................................ 37.08 Art 31.1 ............................................. P.01
r 18.2 ................................................ 37.17 Art 31.2 ............................................. P.01
r 21.2 ................................................ 40.17 Art 32 ................................................ P.06
r 21.21 .............................................. 16.04 World Health Organisation (WHO)
r 26.5 ................................................ 37.17 Clinical Guidelines on Responding to
r 30 ................................................... 40.28 Children and Adolescents Who Have
Universal Declaration of Human Rights Been Sexually Abused, 2017 ....... 34.02
(UDHR), 1948 ........... I.04, I.05, P.02, World Health Organisation (WHO)
16.07 Guidelines for Medicolegal care for
Art 3 ...................................... 37.05, 37.23 victims of sexual violence,
Art 9 ................................................. 37.05 2003 ............................................. 34.05
Art 12 ............................................... 16.01 World Health Organisation (WHO)
Art 16.2 .............................................. I.60 International Code of Marketing of
Art 19 ............................................... 13.07 Breastmilk Substitutes, 1981
Art 20 ............................................... 15.01 Art 1 ................................................. 24.24
Art 25.2 .............................................. I.04 Art 4 ................................................. 24.24
Art 26 ......................................... I.04, I.05 Art 11 ............................................... 24.24
xl
NATIONAL LEGISLATION
South Africa
Constitution, s 28.1(c) ......................... 27.06
xli
INTRODUCTION: THREE DECADES OF

CHILDREN’S RIGHTS LAW
A. ORIGINS OF THE CRC I.04 D. NEW ISSUES AND AMBIGUITIES I.52

1. New issues and gaps I.52
B. A LEGAL PERSPECTIVE ON THE CRC 2. Ambiguities: limitations and
AND ITS OPTIONAL PROTOCOLS I.10 derogations I.54
1. A multi-tiered approach I.20
2. Children’s rights as human rights I.25 E. CONTEXTUALISATION: CHILDREN’S
3. Situating the CRC in international law I.34 RIGHTS BEYOND THE LEGAL FIELD I.58
C. REALISATION OF CHILDREN’S RIGHTS F. OUR APPROACH I.70

AND THE IMPLEMENTATION OF THE CRC I.38
As a legal commentary on the Convention on the Rights of the Child (CRC) I.01
and its Protocols, this work seeks mainly to situate and contextualise the legal
content of the children’s rights provisions included in these documents in a
comprehensive and concise fashion, all the while addressing the legal chal-
lenges and impacts of developments that have taken place in the last three
decades since the adoption of the CRC. It also engages with other disciplines
and fields, in particular international relations and childhood studies.
The CRC and its Optional Protocols are central to children’s rights law as it is I.02
globally codified.1 No human rights treaties are as widely ratified as the CRC.
Counting 196 States Parties, CRC has been ratified by all states with the
exception of the United States. The CRC is therefore relevant universally as
the foundational document that sets out the tenets of children’s rights law.
The CRC espouses global normative standards on children’s rights that are
binding for states and relevant for other actors in the children’s rights
landscape, including inter alia parents, legal guardians, extended family, the
broader community, institutions and organisations working with children.
In what follows, we first outline the historical origins of the CRC. Next, we I.03
provide a legal perspective on the CRC and its Protocols. The third section
contextualises the CRC and its Protocols in human rights law, and the fourth
section relates children’s rights to other disciplines such as the sociology of
1 For an exploration of what distinguishes children’s rights law from the study of children’s rights or child law,
see: Wouter Vandenhole, ‘Children’s Rights from a Legal Perspective: Children’s Rights Law’, in Wouter
Vandenhole and others, Routledge International Handbook of Children’s Rights Studies (Routledge 2015) 27.
Columns Design XML Ltd / Job: Vandenhole-Childrens_rights / Division: 01IntroductiontrackedGETCorrections /Pg. Position: 1 / Date: 21/10
INTRODUCTION: THREE DECADES OF CHILDREN’S RIGHTS LAW
childhood. The fifth section identifies gaps and invisibilities, and the sixth
section explains the approach taken in this Commentary.
A. ORIGINS OF THE CRC
I.04 The CRC is often portrayed as a natural extension of the 1924 Declaration of
the Rights of the Child and the 1959 UN Declaration of the Rights of the
Child. Born out of the experience of World War I, the 1924 Declaration is
quite concise in the way it focuses on children’s rights. It focuses on protection
and provision rights: to be given the means requisite for children’s material
and spiritual development, to be provided for with food, healthcare, assistance
for disability, opportunity for rehabilitation in case of conflict with the law,
assistance for orphaned or homeless children. It also gives priority to children
in receiving emergency relief. The CRC is also a product of the post-World
War II human rights era, that was hailed by the adoption of the Universal
Declaration of Human Rights (UDHR) in 1948. There are a number of
provisions of the UDHR that have influenced the development of children’s
right law down the road. Art. 25.2 UDHR on the right to a standard of living
adequate for health and wellbeing pronounces childhood and motherhood as
periods characterised by a right to special care and assistance. Art. 26 on the
right to education specifies that everyone has the right to education and that it
should be ‘free, at least in the elementary and fundamental stages’. Compul-
sory elementary education, available technical and professional education and
accessible higher education are all required by art. 26 UDHR.
I.05 The 1959 UN Declaration of the Rights of the Child, which followed from
both the 1924 Declaration of the Rights of the Child and the UDHR,
balances protection and provision rights for children with accents on physical,
mental, moral, spiritual and social development alongside freedom and dig-
nity. It also introduces principles to guide children’s rights such as non-
discrimination and best interests. It places the child in the nexus of the state,
parents and the broader society. The 1959 Declaration, proclaiming that
‘mankind owes to the child the best it has to give’, (Preamble), contains ten
principles outlining numerous rights of children. Principle 1 concerns the
right to enjoy the rights contained in the Declaration without discrimination.
Principle 2 centres on the right to enjoy special protection, facilities and
opportunities for holistic development in freedom and dignity. The principle
also introduces the idea of the ‘best interests of the child [which] shall be the
paramount consideration’ and ‘the guiding principle of those responsible for
his education and guidance’.2 Subsequent principles include the right to a

name and nationality from birth (Principle 3); the right to social security, the
right to health pre- and post-birth, the right to adequate nutrition, housing
and medical services (Principle 4); the rights of children with disabilities to
‘special treatment, education and care’ (Principle 5); the right to education that
is free and compulsory at a minimum in the elementary levels, echoing art. 26
UDHR, and the right to play and recreation (Principle 7). The Declaration
also underscores the importance of the family unit, particularly the respons-
ibility of the parents and the uninterrupted relationship between mother and
child, in the upbringing of children (Principle 6). In addition, Principle 6 also
points to the duty of states to provide care for children without family and to
assist children and families without adequate means. Several principles focus
specifically on protection of children. For instance, Principle 8 states that
children have the right to be among the first to receive protection and relief
while Principle 9 focuses on the protection of children from neglect, cruelty
and exploitation, including trafficking in children and exploitative labour.
Principle 10 centres on the right of children to be protected from practices
fostering racial, religious or any other form of discrimination and to be raised
with values supporting understanding and peace among peoples. In many
ways, the content of the 1959 Declaration forms the groundwork for the
CRC. The year 1979, the 20th anniversary of the 1959 Declaration, was
proclaimed the International Year of the Child by the UN General Assembly.3
On the occasion of the International Year of the Child, Poland called for the
adoption of ‘an international, legally binding’ children’s rights convention ‘on
the basis of principles and provisions contained in the United Nations
Declaration of the Rights of the Child’.4 During the first discussions of the
resolution at the then UN Commission on Human Rights in 1978, several
delegations also referred to the 1959 Declaration, either hoping to retain it as a
benchmark of international standards on children’s rights or calling for the
new convention to go beyond the 1959 declaration, taking into account the
developments in the recognition and protection of children’s rights since.5
Of course, besides the historical evolution of children’s rights and their I.06
eventual codification, the CRC is also part of the history of international
human rights law (see section B.2. below, ‘Children’s Rights as Human
Rights’), as well as it is a product of an era characterised by the realities of the
Cold War where two rival factions were competing politically, economically
2 1959 Declaration of the Rights of the Child, Principles 2 and 7, respectively.

3 OHCHR, ‘Legislative History of the Convention on the Rights of the Child, Volume I’ in OHCHR (ed),
Legislative History of the Convention on the Rights of the Child, vol I (United Nations 2007), 32.
4 Ibid.
5 Ibid., 40.
and socially for dominance, including over global normative agendas during
the decades long process of increasing codification of human rights in
international treaties in the post-World War II period. According to Alston,
Poland, a part of the communist bloc at the time, submitted a draft for a
children’s rights treaty in 1978, not only on the occasion of the International
Year of the Child (1979) but also to counter the influence that the US was
exerting on the human rights agenda through President Jimmy Carter’s
involvement.6 In a similar vein, the proposed treaty on children’s rights would
also serve as an avenue to advance economic, social and cultural rights that
were prominently on the agenda of the communist bloc,7 especially at a time
when the UN Convention against Torture, a civil and political rights based
treaty was being negotiated. Alston notes that by mid-1980s, the widespread
support for a children’s rights convention globally, including by UNICEF and
by civil society actors eventually led to the Western bloc replacing its stalling
tactics and seeking to include civil and political rights protections in the
negotiated convention.8 Of course, by the time the CRC was adopted and was
opened for ratifications, the Cold War was in the process of ending and the
new treaty offered a promising combination by overcoming the civil and
political versus economic, social and cultural rights divide and moving beyond
Cold War constraints. The two sets of rights contained in the CRC are
nonetheless recognised in art. 4, where a facility of progressive realisation,
including through international cooperation, is also foreseen for economic,
social and cultural rights in line with Article 2 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR).
I.07 In the same vein, the CRC has also been notable for its inclusive drafting
process: not only states whose representatives sat at the then Human Rights
Commission but also delegates from other UN Member States and States not
member to the UN at the time9 as well as representatives of non-governmental
organisations10 were given the opportunity to participate in the drafting
process both at Geneva and at other conferences and workshops held region-
ally and sub-regionally. Whether it was also geographically inclusive is more
open to debate. Alston credits ‘the beginning of the end’ of the Communist
Bloc versus Western Bloc rivalry that characterised the initial negotiations and
UNICEF’s facilitation of the involvement of developing countries in the
6 Philip Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ (1994)
8 International Journal of Law and the Family 1–25, 6.
7 Ibid.
8 Ibid., 6–7.
9 Ibid.; Philip Alston, ‘A Guide to Some Legal Aspects Connected to the Ratification and Implementation of
the Convention on the Rights of the Child’ (1994) 20 Commonwealth Law Bulletin 1110–16, 1111.
10 Gamze Erdem Türkelli and Wouter Vandenhole, ‘The Convention on the Rights of the Child: Repertoires
of NGO Participation’ (2012) 12(1) Human Rights Law Review 33–64, 37–41.
drafting process for opening up the CRC to culturally diverse perspectives.11

Others have nonetheless argued that the global, Western image of childhood
is dominant in the CRC.12 In fact, Kaime has pointed out that ‘[a]part from a
limited reference in the preamble, the CRC does not generally extol culture or
tradition as a positive value in the promotion and protection of children’s
rights’.13 It is also noted that the Western image of childhood is at odds with
the concrete lifeworlds of children in the global South, not only because of
cultural reasons, but also and primarily due to fundamentally different socio-
economic contexts.14 Supporting this reading is the fact that the CRC does
not systematically accommodate different cultural formulations of family,
community, development and care and only does so in the context of a select
few issues such as adoption or indigenous children’s rights. The dominant
Western orientation can also be seen, for example, in the protection rights
given to children. Ansell has pointed out how protection rights for children in
economic activities do not necessarily serve children’s best interests, since these
rights may limit their chances for socio-economic improvement.15 Similarly,
the homogenous child image within children’s rights has also been criticised
from a Western perspective,16 since it excludes, for example, children living in
poverty.
Another important fact regarding the CRC that must be underscored is that it I.08
came about without the participation of children in the drafting process. As
Liebel puts it:
Although the CRC was the result of a normative struggle that expanded over many
decades, involving conflicting conceptions of childhood and children, their needs,
their appropriate place in family and society and, accordingly, competing conceptions
of the rights they should obtain, the eventual document came into being without the
11 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’, 7.
12 Afua Twum-Danso Imoh, ‘Realizing Children’s Rights in Africa: An Introduction’ in Afua Twum-Danso
Imoh and Nicola Ansell (eds), Children’s Lives in an Era of Children’s Rights: The Progress of the Convention on
the Rights of the Child in Africa (Routledge 2014); Nicola Ansell, ‘The Convention on the Rights of the
Child: Advancing Social Justice for African Children?’ in Twum-Danso Imoh and Ansell, ibid, 234–6.
13 Thoko Kaime, ‘'Vernacularising’ the Convention on the Rights of the Child: Rights and Culture as Analytic
Tools’ (2010) 18 International Journal of Children’s Rights 637–53, 639.
14 Twum-Danso Imoh, ‘Realizing children’s rights in Africa: An introduction’, 8–11.
15 Ansell, ‘The Convention on the Rights of the Child: Advancing Social Justice for African Children?’, 235
and 239.
16 Didier Reynaert and Rudi Roose, ‘Children’s Rights from a Social Work Perspective: Towards a Lifeworld
Orientation’ in Vandenhole and others (eds), Routledge International Handbook of Children’s Rights Studies,
100.
active involvement of children. Seen from the perspective of children, the rights
enshrined in the CRC constitute granted rights, in whose elaboration children had no
role.17
I.09 The negotiations on the CRC took place over a period of ten years from 1978
to 1989. A first Polish draft was presented in 1978 and a revised draft
presented in 1980.18 Based on this revised draft, the first reading took place
between 1979 and 1988. Detrick credits the method of consensus used in the
drafting process for the lengthiness of the negotiations as well as the ‘abandon-
ment of certain proposals [such as the limitation of medical experimentation
on children or upper age-limit for prohibition of children’s participation in
armed conflict], notwithstanding the support of a clear majority’ but also in
allowing for most issues to be resolved in the Working Group.19 On issues of
contention, smaller drafting groups were set, ‘usually made up of the most
interested delegations, whose task was to consider a controversial proposal
thoroughly and agree upon a version that the Working Group could accept’.20
The technical review of the draft ‘in accordance with United Nations technical
standards and practices regarding that kind of international instrument’ was
requested by the chairman in a letter to the UN Secretary-General and
undertaken in 1988.21 Subsequently, a second reading took place between
1988 and 1989, when the instrument was finalised. The finalised instrument
was then submitted by the Working Group to the UN Human Rights
Commission for discussion and approval.22
B. A LEGAL PERSPECTIVE ON THE CRC AND ITS OPTIONAL PROTOCOLS
I.10 The CRC consists of three parts. Part I offers a definition of the child,
contains general principles and obligations, and a detailed list of specific rights
and obligations. The CRC is fairly comprehensive in scope, and covers civil,
political, economic, social and cultural rights. Part II deals with the CRC’s
monitoring body, the Committee on the Rights of the Child. Part III holds
general treaty law provisions.
17 Manfred Liebel, ‘Framing the Issue: Rethinking Children’s Rights’, in Manfred Liebel with Karl Hanson,
Iven Saadi and Wouter Vandenhole, Children’s Rights from Below: Cross-Cultural Perspectives (Palgrave
Macmillan 2012), 14.
18 Sharon Detrick, The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux
Préparatoires’ (Martinus Nijhoff 1992), 21–2.
19 ibid., 22.
20 OHCHR, ‘Legislative History of the Convention on the Rights of the Child, Volume I’ , xxxix.
21 Ibid., 167.
22 Detrick, note 18, 1.
The CRC is often said to contain the ‘three P’s’ of children’s rights, namely I.11
protection, provision and participation. Hammarberg first suggested in 1990
that the articles in the CRC may be more easily understood when grouped
into the ‘three P’s’:
Provision – the right to get one’s basic needs fulfilled – for example, the rights to food,
health care, education, recreation and play.
Protection – the right to be shielded from harmful acts or practices – for example, to
be protected from commercial or sexual exploitation, physical or mental abuse, or
engagement in warfare.
Participation – the right to be heard on decisions affecting one’s own life.23
In 1994, Lansdown suggested that these three principles of provision, protec- I.12
tion and participation underlie the CRC’s relevant articles, with provision
articles denoting social rights, participation articles outlining civil and political
rights and protection articles denoting rights to be ‘safe from discrimination,
physical and sexual abuse, exploitation, substance abuse and conflict’.24 Over
time, the terminology of ‘three P’s’ became a widely used and rarely challenged
concept in children’s rights research and policy.25 The use of ‘three P’s’ to
denote a typology of rights under the CRC has not gone without criticism.
Quennerstedt believes that using broader human rights language and typol-
ogies such as that of civil, political, economic, social and cultural rights instead
of using specific models such as the ‘three P’s’ in relation to children’s rights,
is more appropriate for mainstreaming children’s rights.26 She argues:
‘Approaching children’s rights with human rights concepts augments the
autonomy/self-determination part of children’s rights’.27 Vandenhole has
criticised the three P’s typology on legal technical grounds:
the term ‘provision rights’ tends to confirm the outdated misunderstanding or

misrepresentation that economic and social rights are exclusively about provision. It
has meanwhile been widely accepted that the obligations relating to economic, social
and cultural rights are to be understood as obligations to respect, to protect and to
fulfil, and that the latter obligation consists of sub-obligations to facilitate, to promote
23 Tomas Hammarberg, ‘The UN Convention on the Rights of the Child – and How to Make It Work’ (1990)
12(1) Human Rights Quarterly 97–105, 100.
24 Gerison Lansdown, ‘Children’s Rights’, in Barry Mayall (ed), Children’s Childhoods: Observed and Experienced
(Routledge Falmer 1994), 36.
25 Ann Quennerstedt, ‘Children, But Not Really Humans? Critical Reflections on the Hampering Effect of the
“3 p’s”’ (2010) 18 International Journal of Children’s Rights 619–35, 624–5.
26 Ibid., 630.
27 Ibid., 631.
and to provide. Only the sub-obligation to fulfil-provide requires considerable

mobilisation of resources.28
In fact, the Committee on Economic, Social and Cultural Rights (CESCR)

has clarified that the fulfil-provide obligation is triggered only when ‘indi-
viduals or a group are unable, for reasons beyond their control, to realize that
right themselves by the means at their disposal’.29 Thus, ‘[p]rovision, and the
concomitant need for the mobilisation of resources’ corresponds to a very
limited part of socio-economic rights.30
I.13 The CRC is also said to embody general principles of children’s rights as
reflected in various provisions of the treaty. These general principles are
non-discrimination and the right to equality (art. 2); the best interests of the
child (art. 3); right to life, survival and development (art. 6) and respect for
the views of the child, also dubbed the participation principle (art. 12). In fact,
the so-called general principles were first introduced by the CRC Committee
as a guidance on the implementation of the CRC’s various provisions, giving
the four principles the heading of ‘General Principles’ whereas other pro-
visions were grouped under other headings such as ‘Civil rights and freedoms’
or ‘Basic health and welfare’.31 The CRC Committee later also identified
these general principles as general measures of implementation under GC 5.
Abramson has criticised the use of the notion ‘General Principles’ and
suggested ‘Umbrella provisions’ instead. The same author also argues that ‘the
four general principles’ has become a vacuous cliché. Comparing the four
general principles with ‘the trainer-wheels on a child bicycle’ (that is a
simplification for didactic reasons), he laments that ‘leaving the trainers on for
so long’ has led to problems.32
28 Wouter Vandenhole, ‘The Convention on the Rights of the Child’ in Koen De Feyter and Felipe Gomez Isa
(eds), International Human Rights Law in a Global Context (University of Deusto 2009).
29 Committee on Economic Social and Cultural Rights (CESCR), General Comment (GC) No. 14 (2000) on the
right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and
Cultural Rights) (11 August 2000) E/C.12/2000/4, para. 37. (For further details, see, for example, Wouter
Vandenhole, ‘Completing the UN Complaint Mechanisms for Human Rights Violations Step by Step:
Towards a Complaints Procedure to the International Covenant on Economic, Social and Cultural Rights’
(2003) 21 Netherlands Quarterly of Human Rights 423–62; Eibe Riedel, Gilles Giacca and Christophe Golay
(eds), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (Oxford
University Press 2014) 20.)
30 Wouter Vandenhole, ‘Distinctive Characteristics of Children’s Human Rights Law’ in Eva Brems, Ellen
Desmet and Wouter Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape:
Isolation, Inspiration, Integration? (Routledge 2017) 24.
31 CRC Committee, ‘General Guidelines Regarding the Form and Content of Initial Reports to be Submitted
by States Parties under Article 44, Paragraph 1 (A), of the Convention’, CRC/C/5, 30 October 1991,
para. 13.
32 Bruce Abramson, Article 2: non-discrimination (A Commentary on the United Nations Convention on the
Rights of the Child, Martinus Nijhoff 2008) 64–5.
The two children’s rights specific principles among the general principles I.14
are the best interests of the child and the right to life, survival and develop-
ment.33 The principle of the best interests of the child far predates the CRC
and has a long history, particularly in family law courts in the US legal
system.34 Although the principle of best interests does not have a universal
definition, the CRC Committee has noted that the best interests rule requires
states to prioritise children’s interests when they are balancing different
interests.35 The substantive content of this prioritisation, on the other hand, is
not well-defined. Zermatten considers, for instance, that the principle of
survival and development may provide guidance on how the best interests
principle can be put into action in concrete terms.36
The focus on a child’s survival and development is a central tenet of the CRC, I.15
which is heavily influenced by the developmental vision based on a ‘fictitious
universal child’.37 The primarily biological model of ‘a gradually maturing
organism’ is said to underlie the way in which the CRC sketches the child.38
The developmental model is made explicit in art. 6 on right to life and survival
and development as well as art. 5 referring to the child’s evolving capacities. In
addition, it influences the rights to an adequate standard of living (art. 27) and
education (arts 28–29).39 Mayall argues that the focus on the child as a
‘becoming’ informed by the developmental model risks monopolising policy,
implementation and academic debates due to its unquestioned uptake.40 The
alternative model proposed, especially by the sociology of childhood approach,
focuses on childhood as a ‘historically and culturally contingent construction’
and on children as active and meaningful social agents in their own right.41
33 John Tobin, ‘Understanding a Human Rights Based Approach to Matters Involving Children: Conceptual
Foundations and Strategic Considerations’ in Antonella Invernizzi and Jane Williams (eds), The Human
Rights of Children: From Visions to Implementation (Ashgate 2011).
34 Lynne Marie Kohm, ‘Tracing the Foundations of the Best Interest of the Child Standard in American
Jurisprudence’ (2008) 10(2) Journal of Law and Family Studies 337–76, 376.
35 Committee on the Rights of the Child (CRC Committee), GC 14 (2013) on the Right of the Child to Have
His or Her Best Interests Taken as a Primary Consideration (Art. 3, Para. 1), para. 40.
36 Jean Zermatten, ‘Best Interests of the Child’, in S Mahmoudi and others, Child-friendly Justice: A Quarter
Century of the UN Convention on the Rights of the Child (Brill Nijhoff 2015) 34.
37 Ashleigh Barnes, ‘CRC’s Performance of the Child as Developing’ in Invernizzi and Williams (eds), The
Human Rights of Children. From Visions to Implementation, 392.
38 Colette Daiute, ‘The Rights of Children, the Rights of Nations: Developmental Theory and the Politics of
Children’s Rights’ (2008) 64(4) Journal of Social Issues 701–23, 708.
39 Gerison Lansdown, The Evolving Capacities of the Child (UNICEF 2005) 19.
40 Berry Mayall, ‘The Sociology of Childhood in Relation to Children’s Rights’ (2000) 8 The International
Journal of Children’s Rights 243–59, 245.
41 Karin Lesnik-Oberstein, ‘Introduction: Voice, Agency and the Child’, in Karin Lesnik-Oberstein (ed),
Children in Culture, Revisited: Further Approaches to Childhood (Palgrave Macmillan 2011) 1.
I.16 Non-discrimination and participation principles inform human rights law

more generally and are not particular to children’s rights law. Many core
human rights conventions include the principle of non-discrimination as a
central element42 and focus on participation rights.43 Tobin has, for instance,
argued for an elevation of two other principles, namely due deference to
parents and evolving capacities of the child, both found in art. 5 to the status
of general principles to guide the implementation of the CRC.44 Evolving
capacities has been considered a balancing principle that allows children to be
accorded more protection when they are younger and more active exercise of
their rights as they get older.45
I.17 Hanson and Lundy note that despite the frequent reference to arts 2, 3, 6 and
12 as the ‘general principles’, ‘it is not always the whole of the Article that is
engaged’.46 For instance, the focus is generally on the first paragraphs of arts 2,
3 and 12.47
I.18 The CRC Committee’s practice of referring to the so-called general principles
within its general comments (GCs) has also been uneven. GCs 6, 7, 9, 10, 12,
14, 16, 17, 18, 19 and 20 of the CRC Committee refer to or dedicate a section
to the general principles. On the other hand, there is no mention of the
general principles in GCs 8, 11, 13 and 23. Other GCs offer alternative
formulations. For instance, the 2013 GC 15 refers to ‘Principles and premises
for realizing children’s right to health’, where it makes a reference to ‘The
indivisibility and interdependence of children’s rights’ and to ‘Evolving capaci-
ties and the life course of the child’ in addition to the general principles.48 The
2017 GC 21 defines a child rights approach in line with the UNICEF
42 See: arts 24 and 26 ICCPR, arts 2 and 10 ICESCR, arts 1, 2 and 5 Convention on the Elimination of All
Forms of Racial Discrimination; arts 1 and 2 Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW); art. 5 Convention on the Rights of Persons with Disabilities, art. 7
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families.
43 See: arts 19 and 25 ICCPR; arts 8, 13 and 15 ICESCR; art. 5 Convention on the Elimination of All Forms
of Racial Discrimination; art. 11 Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW); arts 29–30 Convention on the Rights of Persons with Disabilities; art. 42 International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
44 Tobin, ‘Understanding a Human Rights Based Approach to Matters Involving Children’, 72. Compare Van
Bueren, who argues that the evolving capacities of the child is a new principle of interpretation in
international law that underpins the CRC, see Geraldine Van Bueren, The International Law on the Rights of
the Child (Martinus Nijhoff 1998) 45–51.
45 Lansdown, Evolving Capacities of the Child, 3.
46 Karl Hanson and Laura Lundy, ‘Does Exactly what it says on the Tin? A Critical Analysis and Alternative
Conceptualisation of the so-called “General Principles” of the Convention on the Rights of the Child’
(2017) 25(2) International Journal of Children’s Rights 285–306, 292.
47 Ibid.
48 CRC Committee, General comment (GC) No. 15 (2013) on the right of the child to the enjoyment of the highest
attainable standard of health (art. 24) (17 April 2013) CRC/C/GC/15.
10
definition as being guided by ‘child rights standards and principles from the
Convention and other international human rights instruments ‘…’ particu-
larly: non-discrimination; the best interests of the child; the right to life,
survival and development; the right to be heard and taken seriously; and the
child’s right to be guided in the exercise of his or her rights by caregivers,
parents and community members, in line with the child’s evolving capaci-
ties’.49 GC 22 refers to the so-called general principles as ‘overarching
principles’.50 Hanson and Lundy’s review of a number of Concluding Obser-
vations by the CRC Committee has led the authors to conclude that there is
considerable overlap in the Committee’s treatment of state obligations linked
to the so-called ‘general principles’. In fact, while the four arts 2, 3, 6 and 12
are listed separately under a sub-heading of general principles, they are treated
‘with similar issues and phrasing reoccurring throughout’.51 This may carry the
risk of confounding the content and even discounting the various obligations
under these different articles as they might end up treated only as parts of a
broader whole.
In sum, the four general principles serve an indisputable didactic purpose, but I.19
there is growing need for consistent language and a clear theory: On which
grounds can general/overarching/umbrella principles be identified? What role
do they play in the interpretation and application? What is their legal status?
A critical engagement with the notion of ‘general principles’ is necessary and
useful to discern what relevance overarching or general principles may have
with respect to the realisation of children’s rights globally and the implemen-
tation of the CRC in policy-making, litigation as well as the elaboration of
new normative frameworks to respond to contemporary challenges such as the
advances in information and communication technologies or medical tech-
nologies or the rise of non-state actors as global political and economic players.
1. A Multi-tiered Approach
Ordinarily, human rights law as codified in international treaties regulates the I.20
relationship of states to individuals and vice versa. The same is true for
children’s rights law as codified in the CRC, with one difference: children’s
rights law designates a multi-tiered approach, where parents and caregivers of
49 CRC Committee, GC 21 (2017) on children in street situations (21 June 2017), CRC/C/GC/21GC 21,
para. 11(b).
50 CRC Committee, Joint GC 3 (2017) of the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child
on the general principles regarding the human rights of children in the context of international migration
(16 November 2017) CMW/C/GC/3-CRC/C/GC/22, para. 19.
51 Hanson and Lundy, ‘Does Exactly what it says on the Tin?’, 294.
11
children feature at a middle tier between individual children and the state.
Thus, both parents or caregivers and states have children’s rights duties, as is
also recognised in the CRC: parents or legal guardians ‘have the primary
responsibility for the upbringing and development of the child’ while states
have an obligation to give them ‘appropriate assistance ‘…’ in the performance
of their child-rearing responsibilities and [to] ensure the development of
institutions, facilities and services for the care of children’. (art. 18.2 CRC) On
the whole, the CRC is not clear on the division of duties between the
parents/legal guardians and the state.52 The ‘hierarchical’ approach of art. 18
CRC that creates two levels of duties (parental and state) ‘for children’ has
been criticised for entrusting to parents power over how children may or may
not enjoy their children’s rights depending on parental sensitivities or views.53
I.21 Vandenhole has suggested that the CRC may be read to surpass a vertical state
to individual relationship, even with the insertion of parents/legal guardians as
an intermediary level within, to ‘create space for bringing in other duty-bearers
than the state in human rights law’.54 Different actors are recognised in various
articles of the CRC as having ‘responsibilities, rights and duties’: Art. 5 CRC
points to ‘members of the extended family or community as provided for by
local custom, legal guardians or other persons legally responsible for the child’
in addition to parents, and art. 27 on the right to an adequate standard of
living points to a division between the primary responsibility parents have
within their financial capabilities and auxiliary obligation of the state to ensure
that primary responsibility is fulfilled. Eide links such division of primary and
auxiliary responsibilities in the CRC to the imagery of an ideal setting for the
childhood-long upbringing as ‘a family with the will and the capability to care
for the child during its many years, starting with the pregnancy and from birth
to full maturity at the age of eighteen’.55 Especially with respect to the right to
adequate standards of living, the ability of parents to ensure this right for their
children depends inextricably on their financial and non-financial capabilities.
Whether parents in turn have the requisite capabilities is affected by many
factors and many actors, including whether their own economic and social
rights are respected not only in general but also with respect to when they
work to ensure financial capabilities. The state’s auxiliary obligation under art.
27 is meant to assist parents who are unable to ensure the conditions necessary
52 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’, 2.
53 Barnes, ‘CRC’s Performance of the Child as Developing’, 405.
54 Vandenhole, ‘Distinctive Characteristics of Children’s Human Rights Law’, 30.
55 Asbjørn Eide, Article 27: The Right to an Adequate Standard of Living (A Commentary on the United Nations
Convention on the Rights of the Child, Martinus Nijhoff Publishers 2006) 3.
12
for the wellbeing and adequate development of their children.56 Such assist-
ance is of course limited to the available resources of the state in question and
linked in art. 27 to the material needs of children such as nutrition, clothing
and housing.57 Vandenhole believes that the introduction of auxiliary duties
under art. 27 CRC can ‘also be read as opening up the duty-bearer side of
human rights law, in order to include other actors than the state’.58
The CRC and its Protocols enumerate children’s rights obligations that apply I.22
to states and ordinarily, the state in question is understood as the state that has
jurisdiction over the territory that a child is on. Yet:
Globalization, and in particular economic globalization, as a process of dispersion of

power, has made it increasingly difficult to understand and tackle social challenges at a
local or national level alone. These developments challenge the legal concept of
children’s rights as entitlements towards the territorial state, and necessitate the
‘widening of the duty-bearer side of children’s rights’59 if they are to function as a
leverage for social change.60
The CRC, as an instrument, creates the possibility for bringing in duty- I.23
bearers beyond the state.61 There are nascent academic and civil society
discussions on how that possibility may be translated into international law or
its implementation.62 More attention is being paid to children’s rights, for
instance in the context of the debates on business and human rights63 through
non-binding initiatives such as the OECD Guidelines on Multinational
Enterprises (MNE), the International Labour Organization (ILO) MNE
Declaration or the Children’s Rights and Business Principles initiative, but the
overarching conceptual framework of what the children’s rights duties of
non-state actors are and how they are to be shared with states is still to be
clarified.
56 Ibid., 3 and 26.

57 Ibid., 2.
58 Vandenhole, ‘Children’s Rights from a Legal Perspective: Children’s Rights Law’, 27.
59 Wouter Vandenhole, Gamze Erdem Türkelli and Rachel Hammonds, ‘New Human Rights Duty-Bearers:
Towards a Re-conceptualisation of the Human Rights Duty-Bearer Dimension’ in Anja Mihr and Mark
Gibney (eds), The SAGE Handbook of Human Rights (Sage 2013).
60 Vandenhole, ‘Children’s Rights from a Legal Perspective: Children’s Rights Law’, 35–6.
61 Ibid.
62 See for instance, Erdem Türkelli, Children’s Rights and Business: Governing Obligations and Responsibility
(Cambridge University Press Forthcoming 2020).
63 Erdem Türkelli, ‘Children’s Rights in Business and Human Rights: from the Sidelines to the Centre Field?’
in Brems, Desmet and Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape:
Isolation, Inspiration, Integration?
13
I.24 The CRC Committee recognises in its GC 16 on state obligations regarding

business activity that ‘duties and responsibilities to respect the rights of
children extend in practice beyond the state and state-controlled services and
institutions and apply to private actors and business enterprises’64 but has thus
far been reluctant to interpret CRC’s provisions in light of the obligations of
non-state actors (individual or institutional) in the context of specific rights.65
CRC Committee’s GC 15 on the Enjoyment of the Highest Attainable
Standard of Health is an outlier as it points to non-state actors, including inter
alia health service companies, pharmaceutical companies, private health insur-
ance companies, mass media organisations and researchers as having specific
duties with regards to children’s right to health.66
2. Children’s rights as human rights
I.25 Children’s rights refer, as many scholars reiterate time and again, to the
human rights of children; namely, ‘fundamental claims for the realization of
social justice and human dignity for children’.67 Scholarship from general
human rights law as well as litigation and social movements allow us to draw
insights that are equally pertinent to children’s rights law.68
I.26 There are various conceptions of human rights as well as numerous critiques
that remain equally valuable when talking about the human rights of children.
Marie-Bénédicte Dembour conceptualises four schools of thought on human
rights as ‘Weberian ideal-types’:69 natural, deliberative, protest and discourse
schools. In reality, variations in the conceptualisation of human rights mean
that ideal-types often dissolve into hybrids. The natural school of human
rights, which Dembour believes to be at the ‘heart of the human rights
orthodoxy’, views rights as inherent: ‘human rights as those rights one
64 CRC Committee, GC 16 (2013) on State obligations regarding the impact of the business sector on children’s rights
(17 April 2013) CRC/C/GC/16, para. 8.
65 This is in contrast, for instance, to the CESCR, which has been outspoken in its various general comments
on the obligations of actors other than States (See: CESCR, GC 21: Right of Everyone to Take Part in
Cultural Life (Art. 15, Para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights, UN
Doc (2009) E/C.12/GC/21/Rev.1 paras 73–76; CESCR, General Comment No. 19: The Right to Social
Security (Art. 9) (2008) UN Doc E/C.12/GC/19 paras 82–84; CESCR, The Right to Work. General Comment
No. 18: Article 6 of the International Covenant on Economic, Social and Cultural Rights (2006) UN Doc
E/C.12/GC/18, paras 52–54.
66 CRC Committee, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest
attainable standard of health (art. 24), 17 April 2013, CRC/C/GC/15, paras 75–85.
67 Reynaert and others, ‘Introduction: A critical Approach to Children’s Rights’, in Vandenhole and others,
(eds), Routledge International Handbook of Children’s Rights Studies, 5.
68 Ibid., 5–7.
69 Marie-Bénédicte Dembour, ‘What Are Human Rights? Four Schools of Thought’ (2010) 32 Human Rights
Quarterly 1–20, 4.
14
possesses simply by being a human being’.70 Because they are inherent, rights
exist independently of social or legal recognition.71 The deliberative school, on
the other hand, focuses on the societal adoption of human rights norms as the
point of existence of those rights. It is only when societies embrace human
rights norms legally and socially, that they become meaningful.72 The third
school, the ‘protest school’, focuses on the necessity to continuously fight for
human rights and to demand rights on behalf of individuals and groups
experiencing injustice in the form of poverty, marginalisation or oppression.73
Finally, the discourse school questions the idea of human rights as a panacea
to injustice, points to the limitations of human rights while recognising the
importance that human rights language has acquired and some of the benefits
accrued thanks to that language.74 For the discourse school, the legitimate
claims surrounding emancipation and redress for injustices may be advanced
more appropriately by other means.75 It should be noted that, while Dembour
does not undertake an analysis based on children’s rights, traces of ideas from
the four schools of thought may also be discerned in the field of children’s
rights.
The idea that rights are possessed inherently by children by virtue of being I.27
human beings underlies much of the discourse from agencies and institutions
that work on children’s rights or with children. The Preamble of the CRC
starts with the ‘recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family [as] the foundation of
freedom, justice and peace in the world’, in line with the natural school views
on human rights. The idea of social and legal recognition as an important
driver in making rights meaningful that is put forth by the deliberative school
is also a part of the push to have children’s rights codified into international
law and the frequent mention that the CRC is the most widely ratified human
rights treaty. In addition, children’s rights from below and living rights bridge
the deliberative and protest schools by inspecting ‘children’s rights as a living
practice’, especially from an anthropological perspective.76 The traces of the
protest school may be found in the idea of children’s rights as empowerment77
70 Ibid., 2.
71 Ibid., 3.
72 Ibid.
73 Ibid.
74 Ibid., 4.
75 Ibid.
76 Geraldine André, ‘Anthropologists, Ethnographers and Children’s Rights: Critiques, Resistance and
Powers’ in Vandenhole and others (eds), Routledge International Handbook of Children’s Rights Studies, 120.
77 Katherine H Federle, ‘Rights Flow Downhill’ (1994) 2 International Journal of Children’s Rights 343–76.
15
and as liberation.78 Wall argues that the three approaches are not only
mutually inclusive but also complementary. According to Wall, ‘top-down,
developmental, and bottom-up rights are really different sides of a holistic and
dynamic human rights circle’.79 Finally, some scholars have taken issue with
the usefulness of children’s rights for children’s wellbeing and suggested that
other concepts, such as duties incumbent on adults, may be better at achieving
positive results for children.80
I.28 Technically, children’s rights as human rights are a part of the global UN
human rights system as well as the various regional human rights systems.
Within the nine core UN human rights treaties, there are specific references to
children or particular issues of central interest to children. The International
Covenant on Civil and Political Rights (ICCPR) prohibits death penalty for
persons under the age of 18 (art. 6.5), accords special attention to fair trial
guarantees for juveniles (art. 14.1 and 14.4) and ensures the right to protection
without discrimination as well as the right to name and nationality for every
child (art. 24). The ICESCR creates obligations to provide special protection
and assistance to all children, including protection from economic and social
exploitation (art. 10.3). Article 29 of the Convention on the Protection of the
Human Rights of All Migrant Workers and Members of their Families
(CMW) also reiterates the right to a name, registration at birth and a
nationality for children, in line with art. 24 ICCPR. Art. 30 CMW focuses on
the right to education of children of migrant workers and art. 45.2–4 CMW
entails the equal rights of children of migrant workers to integration in the
local school system and to facilitation of learning in their mother tongue.
Children-specific protection measures are envisaged under Article 7 of the
Convention on the Rights of Persons with Disabilities (CRPD) for children
with disabilities as well as under Article 25 of the International Convention
for the Protection of All Persons from Enforced Disappearance (ICED) for
children affected by enforced disappearance of one or both of their parents or
legal guardians.81 On the other hand, the specific rights and protections
accorded to children under the CRC are also relevant for the broader human
rights field. For instance, the UN Human Rights Committee has referenced
78 John Caldwell Holt, Escape from Childhood: The Needs and Rights of Children (Ballantine Books 1974);
Richard Farson, Birthrights: A Bill of Rights for Children (MacMillan 1974).
79 John Wall, ‘Human Rights in Light of Childhood’ (2008) 16 International Journal of Children’s Rights
523–43, 541.
80 Onora O’Neill, ‘Children’s Rights and Children’s Lives’ (1988) 98(3) Ethics 445–63 and Barbara Arneil,
‘Becoming versus Being: A Critical Analysis of the Child in Liberal Theory’, in David Archard and Colin M
Macleod (eds), The Moral and Political Status of Children (Oxford University Press 2005).
81 On the interplay between the CRC and other UN human rights treaties, see Brems, Desmet and
Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape: Isolation, Inspiration,
Integration?.
16
art. 37 CRC as a key provision in an almost universally ratified treaty that is ‘a

valuable source in informing the interpretation of the [ICCPR]’ in the case of
life sentences imposed on juvenile offenders.82
Among the regional human rights systems, the African regional system is the I.29
only one that has a general children’s rights convention similar to the CRC.
The 1990 African Charter on the Rights and Welfare of the Child
(ACRWC) contains provisions on all aspects of children’s rights, comparable
to the CRC, but sensitive to the African context, for instance, through
including references to ‘positive African morals, traditional values and cultures’
as well as ‘the promotion and achievement of African Unity and Solidarity’
within the aims of education (art. 11.2). The African Committee of Experts
on the Rights and Welfare of the Child (ACERWC) acts as the monitoring
body and has thus far rendered six decisions on ten complaints.83 The African
regional system’s flagship human rights document, the African Charter on
Human and Peoples’ Rights also includes a provision on the protection of
children’s rights ‘as stipulated in international declarations and conventions’,
which also thus makes an implicit reference inter alia to the CRC (art. 18).
The Inter-American system does not have a children’s rights instrument but I.30
contains children-specific provisions similar to the ICCPR in the 1969
American Convention on Human Rights: rights of the family (art. 17),
children’s right to a name (art. 18), children’s right to protection (art. 19) and
to a nationality (art. 20). The 1988 Protocol of San Salvador (Additional
Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights) contains a general children’s rights
clause (art. 16) on the right to grow up under the protection and responsibility
of parents, non-separation from mother, and the right to free and compulsory
education. In addition, children’s specific rights under the protection rights of
families such as to adequate nutrition (art. 15.3(b)) are enumerated. The treaty
is monitored by a dual mechanism through the Inter-American Commission
and the Inter-American Court, which can also receive individual complaints
and has decided some landmark cases of global significance with respect to
children’s rights.84
82 Bronson Blessington and Matthew Elliot v. Australia (UN HRC) 2014 para. 7.11.
83 For the specific cases, see: ACERWC, Table of Communications, https://www.acerwc.africa/table-of-
communications/ [last accessed 29 April 2019]. (Three complaints were deemed inadmissible while one
complaint was still pending at the time of writing.)
84 The children’s rights case law of the Organization of American States (OAS) through the Inter-American
Commission and the Inter-American Court may be found at: http://www.oas.org/en/iachr/children/ [last
accessed 6 April 2019].
17
I.31 The pan-European human rights system rests on two pillars: the 1950
Convention for the Protection of Human Rights and Fundamental Freedoms,
dubbed the European Convention on Human Rights (ECHR) and the 1996
Revised European Social Charter (RESC). While the ECHR does not have
any child-specific provisions or references to children’s rights, the European
Court of Human Rights (ECtHR), which monitors compliance with the
ECHR routinely deals with children’s rights issues. The RESC, on the other
hand, does contain specific children’s rights provisions on the right of children
to protection, especially in work (art. 7.10) as well as the right of children to
social, legal and economic protection (art. 17). The European Committee of
Social Rights (ECSR), which monitors compliance with the RESC, has also
handled collective complaints on alleged violations involving children’s rights.
Treaties on thematic issues concerning children have also been adopted
through the Council of Europe and include the 1996 European Convention
on the Exercise of Children’s Rights, the 2007 Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse and the 2008
European Convention on the Adoption of Children (Revised). At the Euro-
pean Union (EU) level, the EU Charter of Fundamental Rights, adopted in
2000 and readopted in 2007 and binding for all EU Member States, contains
two children’s rights clauses: art. 24 as a general children’s rights provision and
art. 32 as a provision prohibiting child labour and providing protection at
work.
I.32 Case law from regional human rights systems features in this Commentary
with respect to the interpretation of substantive provisions of the CRC by
regional human rights courts and global or regional monitoring bodies. Of
course, the usefulness and limits of litigation in generating social change
should be assessed candidly. Nolan has found, for instance, that although not
completely non-existent, the transformative impact of judicial intervention is
limited with regard to socio-economic rights of children. Of course, more
empirical work is needed to draw more conclusive insights from the practice of
courts and the general usefulness of litigation.85
I.33 The body of children’s rights case law at the regional and global human rights
systems is uneven in its reach with some issues being rather extensively covered
and others completely invisible. The Commentary also reflects this real-life
situation: case law is covered in detail whenever available from all regional
systems in existence as well as from UN human rights treaty bodies in some
chapters while it is absent from others.
85 Aoife Nolan, Children’s Socio-Economic Rights, Democracy and the Courts (Hart Publishing 2011), 258–9.
18
3. Situating the CRC in international law
The developments in children’s rights law have taken place alongside develop- I.34
ments in other sub-fields of the law such as labour law, criminal law,
environmental law and law on development cooperation, to name a few. The
developments in these various fields have a strong bearing on how substantive
children’s rights are understood. For instance, the body of international labour
law developed under the auspices of the ILO has by and large defined debates
on child labour and the state obligations. Humanitarian law principles have
strong links to debates on children in armed conflict. Likewise, criminal law
instruments have a bearing on issues linked to child sexual abuse and
exploitation as well as children in armed conflict. The issues of international
cooperation that are found in the CRC and its Optional Protocols (OPs) are
affected by legal frameworks that govern development cooperation such as the
Organization for Economic Cooperation and Development (OECD) Devel-
opment Assistance Committee rules and procedures.
Children and environment, while by-and-large omitted from the CRC, as an I.35
issue is gaining more importance in an era where the impacts of climate
change are imminent and action urgent to halt its catastrophic fallout on the
world and on communities.86 The vitality of the issue to children is well
evidenced given the increasing involvement of children as activists in calling
for drastic change or in becoming claimants in climate change litigation, by
citing their rights to a healthy environment (See Commentary on art. 22
CRC). From the viewpoint of environmental law, the ‘developmental and
environmental needs of present and future generations’ were recognised as
early as 1992.87
Children’s rights have found themselves incorporated into various develop- I.36
ment agendas. The eight Millennium Development Goals (MDGs) which
hailed a new development era in the new millennium included two goals
that were directly linked to children’s rights: MDG 2 on achieving universal
primary education and MDG 4 on reducing child mortality. Other goals on
eradicating extreme poverty and hunger (MDG 1), promoting gender
equality (MDG 3), improving maternal health (MDG 5), combatting
86 These are evidenced by the findings of the October 2018 report of the UN Intergovernmental Panel on
Climate Change: Intergovernmental Panel on Climate Change, Global warming of 1.5°: An IPCC Special
Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas
emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable
development, and efforts to eradicate poverty, 2018.
87 UN GA, Rio Declaration on Environment and Development A/CONF.151/26 (Vol. I), 1992, Principle 3.
19
HIV/AIDS, malaria and other diseases (MDG 6) and ensuring environ-

mental sustainability (MDG 7) also contained elements linked to children’s
rights to an adequate standard of living and health as well as to the
principle of non-discrimination.
I.37 The global framework currently governing development policy, namely the
2030 Agenda and the accompanying 17 Sustainable Development Goals
(SDGs), also include targets on children’s rights issues linked to the right to
education (SDG 4) including both primary and secondary education, the
right to health including nutrition (SDG 2), clean water and sanitation
(SDG 6), and clean environment (SDG 11), the right to adequate
standards of living through the eradication of poverty (SDG 1), affordable
energy (SDG 7) and affordable and safe housing (SDG 11) as well as
protection from exploitative labour (SDG 8). Resolution 34/16 of the
Human Rights Council of 24 March 2017 on a children’s rights-based
approach to the implementation of the 2030 Agenda for Sustainable
Development, calls upon states parties to mainstream children’s rights into
‘all legislation, policies, programmes and budgets … aimed at implementing
the 2030 Agenda’ (para. 4), to pay special attention to children ‘in
marginalized and vulnerable situations’ (para. 5) and encourages them ‘to
promote a child rights-based approach in the implementation of the 2030
Agenda’ (para. 6).88 One possible point of intersection in states’ implemen-
tation of their children’s rights obligations under international law and the
implementation of their commitments to sustainable development lies in the
development of child rights-sensitive indicators at the local, regional and
national levels for tracking progress.89 Of course, child rights-sensitive
indicators alone are not sufficient in tracking progress and performance and
should be coupled with the collection of ‘comprehensive and comparable
disaggregated data and information on children’.90 Criticism has been
voiced on the SDGs from a children’s rights perspective for at least two
reasons. One, the SDGs apply too much a linear growth model, in which
development is still seen as linear and mimicking the Western development
pattern.91 Second, investment-based thinking features prominently: children
are seen as becoming rather than as being.92
88 UN Human Rights Council, ‘Resolution 34/16. Rights of the child: protection of the rights of the child in
the implementation of the 2030 Agenda for Sustainable Development’ (24 March 2017) A/HRC/34/L.25.
89 Ibid., para. 12.
90 Ibid., paras 13 and 15.
91 Björn Hettne, Development Theory and the Three Worlds: Towards an International Political Economy of
Development (Longman Scientific & Technical 1995).
92 Ansell, ‘The Convention on the Rights of the Child: Advancing social justice for African children?’, 242.
20
C. REALISATION OF CHILDREN’S RIGHTS AND THE IMPLEMENTATION OF THE CRC
C. REALISATION OF CHILDREN’S RIGHTS AND THE IMPLEMENTATION OF

THE CRC
The first step in the implementation of the provisions under the CRC and its I.38
Protocols is the adaptation of domestic legal frameworks to respect, protect
and fulfil children’s rights. (See Commentary on art. 4 CRC) Depending on
whether a State Party has a monist or dualist legal system, the CRC may be
directly incorporated into a State Party’s domestic legal system or may need to
be transposed into domestic law by legislation. Thus, the fact of a treaty’s
ratification may not always automatically equate to the ability to invoke this
treaty domestically. Incorporation into domestic law is necessary in dualist
systems for the treaty to be invokable in domestic law. There is no such need
in monist systems and treaties are considered to be directly applicable, which
‘does not mean that it can also be directly invoked by individuals in legal
proceedings’.93 In fact, provisions may need to fulfil other criteria in order to
have such ‘direct effect’, such as ‘a clear and unequivocal meaning’.94
The implementation of the CRC at the domestic level is tracked on the I.39
international arena by the CRC Committee, which issues concluding obser-
vations on a given State Party’s periodic report, the first of which is to be
submitted two years after ratification and every five years subsequent to that.
Under the simplified reporting procedure introduced for states reporting from
September 2019 onwards, the CRC Committee sends the State Party a
request containing up to 30 questions, known as ‘List of Issues Prior to
Reporting (LOIPR)’. The replies to the LOIPR are considered the State
Party’s report to the Committee.95 (See Commentary on art. 44 CRC)
The CRC Committee collaborates with UN specialised agencies and bodies I.40
and these institutions may be invited ‘to provide [the CRC Committee] with
expert advice (…) in areas falling within their respective mandates’.96 In
addition, relevant stakeholders such as NGOs, National Human Rights
Institutions (NHRIs), children’s own organisations, academics and researchers
have been invited to provide information to the Committee on the situation of
children in a given reporting State Party either in general or in thematic
93 Vandenhole, ‘Children’s rights form a legal perspective: Children’s rights law’, 30.
94 Ibid.
95 CRC Committee, Simplified Reporting Procedure: Information note for States parties (2017).
96 CRC Committee, ‘Working Methods’, https://www.ohchr.org/Documents/HRBodies/CRC/Working
MethodsCRC.doc [last accessed 6 April 2019].
21
areas.97 The state periodic reports, as well as the Concluding Observations of

the CRC Committee are made public.98 (See Commentary on art. 45 CRC)
I.41 Beyond the CRC Committee, the implementation of children’s rights is

tracked by studies and thematic reports undertaken by the Special Rapporteur
on the sale and sexual exploitation of children, Special Representative for
Children and Armed Conflict and Special Representative on Violence against
Children.99 UNICEF’s Innocenti Research Centre undertakes major thematic
research projects and publishes research papers on children’s rights-related
issues.100 In addition, the Centre publishes an annual ‘Innocenti Report Card’,
focusing on different themes linked to children’s wellbeing in industrialised
countries.101 Child Rights International Network (CRIN) runs a website that
tracks the implementation of the substantive rights under the CRC, providing
a Legal Database that contains relevant international and regional children’s
rights standards, domestic legislation from States Parties as well as a case law
database of legal complaints on children’s rights violations at the international,
regional and national levels.102
I.42 Another additional complexity lies in the implementation of the recom-

mendations of monitoring bodies based on their findings with respect to state
performance, because these recommendations are not legally binding unless
the monitoring bodies in question are international courts.103 The CRC as an
international treaty establishes a remarkably comprehensive legal framework
on children’s rights buttressed by a monitoring system that allows for a
dynamic interpretation of its norms and effective evaluation of state perform-
ance. In practice, however, the system on paper does not correspond to the
97 Ibid.
98 The UN Treaty Body Database allows users to access these documents and documents from other UN
Human Rights Treaty Bodies: https://tbinternet.ohchr.org/SitePages/Home.aspx [last accessed 6 April
2019].
99 The work of the Special Rapporteur and Special Representatives may be found online. (Special Rapporteur
on the sale and sexual exploitation of children: https://www.ohchr.org/EN/Issues/Children/Pages/
ChildrenIndex.aspx; Special Representative for Children and Armed Conflict: https://childrenandarmed
conflict.un.org/about-us/mandate/history/; Special Representative on Violence Against Children: https://
violenceagainstchildren.un.org) [last accessed 6 April 2019].
100 UNICEF Innocenti Research Centre, https://www.unicef-irc.org, [last accessed 6 April 2019].
101 UNICEF Innocenti Research Centre, https://www.unicef-irc.org/publications/series/research-report/, [last
102 The CRIN Legal Complaints database may be found at https://www.crin.org/en/home/law/complaints [last
103 Vandenhole, ‘Children’s Rights from a Legal Perspective: Children’s Rights Law’, 38. (Schabas challenges
this binding versus non-binding dichotomy in designating the significance of the recommendations of
monitoring bodies: William A Schabas, ‘On the Binding Nature of the Findings of the Treaty Bodies’ in M
Cherif Bassiouni and William A Schabas (eds), New Challenges for the UN Human Rights Machinery: What
Future for the UN Treaty Body System and the Human Rights Council Procedures? (Intersentia 2011).
22
resulting situation in practice, where many principles embodied by the CRC

remain insufficiently implemented and the human rights of children in-
adequately realised.104
The concern with compliance and implementation, or more acutely, the I.43
so-called ‘implementation gap’ is an important thread in the legal literature
on children’s rights. In fact, for many scholars as well as institutions
working on children’s rights, the problems linked to the realisation of the
human rights of children are linked to the unsatisfactory implementation of
standards legally codified in the CRC and its Protocols as opposed to the
standards themselves.105 The assumption that children’s rights in their
current legal framing always offer the best outcomes for children, while
being put to test by a strand of critical interdisciplinary scholarship in
children’s rights, remains very much mainstream.106 The critical challenge
to this mainstream assumption addresses three distinct issues of how legal
norms have been made, what role legal norms play in bringing about social
change and finally, whether existing legal norms are able to cope with the
changing global socioeconomic landscape.107
First, the critical challenge that calls for ‘Children’s Rights from Below’ takes I.44
issue with the top-down and adult-driven approach that characterised the
elaboration of legal norms on children’s rights.108 The ‘children’s rights from
below’ approach seeks to contextualise and localise the meaning of children’s
rights, including their legal meaning, in different social and cultural con-
texts109 and accords importance to ‘living rights’, which children demand
based on their real-life experiences.110 Liebel argues that the divergence
104 Vandenhole, ibid., Simmons has empirically established some impact of CRC (and OPAC) ratification in
the areas of child labour in middle-income countries and of child recruitment in armed forces, but not with
regard to immunisation (Beth A Simmons, Mobilizing for Human Rights: International Law in Domestic
Policies (Cambridge University Press 2009) 307–48.)
105 Vandenhole, ibid., 38–9.
106 Ibid.
107 Ibid.
108 Liebel and others Children’s Rights from Below: Cross-cultural Perspectives.
109 Ibid.
110 Karl Hanson and Olga Nieuwenhuys (eds), Reconceptualizing Children’s Rights in International Development:
Living Rights, Social Justice, Translations (Cambridge University Press 2012). ‘Living rights’ discussions have
taken place principally in relation to child labour/child work as well as child soldiering and the so-called
harmful traditional practices, to a more restricted extent. For more background on living rights in relation to
child labour, see: Karl Hanson and Arne Vandaele, ‘Translating Working Children’s Rights into Inter-
national Labour Law’ in Hanson and Nieuwenhuys, ibid.; Manfred Liebel, ‘Do Children have a Right to
Work? Working Children’s Movements in the Struggle for Social Justice’ K. Hanson and O. Nieuwenhuys
(eds), Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Trans-
lations (Cambridge University Press, 2009) 225–49; in relation to child soldiering, Hanson, ‘International
Children’s Rights and Armed Conflict’ (2011) 5 Human Rights & International Legal Discourse 40; and
harmful traditional practices, Vandenhole, ‘Localising the Human Rights of Children’ in Liebel and others,
23
between children’s interests that are ‘diverse, rooted in the lives of children,
different from culture to culture and from child to child ‘…’ [and] changing
constantly in space and time’ and children’s rights that are ‘general and
generalising, usually far removed from’ children’s experiences, feelings and
opinions is a historical and systemic product.111 What underlies this history is
the formulation of legal rights under the CRC not ‘by, but for children’ in line
with the protectionist streaks found in the two previous declarations as well as
the necessity of expressing children’s interests in the ‘abstract and generalised’
language of legal rights to render to encompass the interests of all children and
to render them valid anywhere in the world.112 As long as children remain
unable to partake in the codification of their rights to bridge the apparent
divide between children’s real-life experiences and their legal rights, Liebel
suggests an interim panacea: ‘those rights which are not (yet) legally recognised
as international conventions or national laws, should at least be recognised
socially as children’s rights. This is especially true of such rights that children
expressly want, invent, or even formulate themselves’.113 In fact, children
themselves are found to be concerned not just about protection necessarily but
also about ‘their rights while in employment, education, the need for trans-
port, access to health’ and beyond, without necessarily considering the right to
protection as the most topical concern.114
I.45 Secondly, a critical appraisal necessitates questioning the assumption that

standards as embodied in legislation and litigation will translate into social
change and necessarily alter attitudes preventing the full realisation of chil-
dren’s rights. In fact, social attitudes that condone discriminatory or patriar-
chal practices towards children may be resistant to change even in the face of
extensive legislative reform, creating limitations on the role of law in instigat-
ing social change.115 Based on a literature review, Corradi and Desmet
‘Localising the Human Rights of Children’ in Liebel and others (eds), Children’s Rights from Below:
Cross-cultural Perspectives.
111 Liebel, ‘Welfare or Agency? Children’s Interests as Foundation of Children’s Rights’ (2018) 26 International
Journal of Children’s Rights 597–625, 609.
112 Ibid., 609–10.
113 Ibid., 611.
114 Tom Cockburn, Rethinking Children’s Citizenship (Palgrave Macmillan 2012) 224.
115 One notable case is explored in the commentary of art. 19 on corporal punishment where a group of Swedish
parents take the Swedish government to the European Commission of Human Rights after the introduction
of legislation in Sweden banning the use of corporal punishment, arguing that the State is impinging upon
the rights of parents to educate their children in the manner they deem appropriate. Research has
demonstrated in fact that legal reform banning corporal punishment did not automatically and unequivocally
change public attitudes or translate into decreased support for corporal punishment in Sweden (H Roberts
and I Roberts, ‘Smacking’ (2000) 26(4) Child: Care, Health and Development 259–62).
24
concluded that the interaction of normative orders with socioeconomic con-

ditions is often decisive for the realisation of children’s rights. Children’s
rights realisation will often require a change in power relations.116
Thirdly, the existing children’s rights legal framework should be put to critical I.46
test in order to uncover children’s rights protection gaps, especially arising
from the increasing involvement of non-territorial states and non-state actors
in the global economic landscape. As Den Heijer and Lawson point out, the
concept of jurisdiction is closely linked to the concept of sovereignty under
public international law, denoting the confines of a state’s right to regulate the
conduct of other actors and has traditionally been understood as territorial.117
In human rights law, more specifically, the duties owed by States Parties to
individuals may be considered to be delimited by jurisdiction. Den Heijer and
Lawson assert that ‘jurisdiction under human rights law is not about whether a
state is entitled to act, but primarily about delineating as appropriately as
possible the pool of persons to which a state ought to secure human rights’.118
Art. 2 CRC refers to jurisdiction but does not tie jurisdiction to territory I.47
(compare to the ICCPR). The legislative history demonstrates that the initial
draft for the CRC made a reference to children ‘in [States Parties’] territories’.
During the Technical Review, UNICEF suggested the inclusion of a reference
to jurisdiction, since jurisdiction was broader in terms of coverage and was
included in the ICCPR in addition to territory.119 It is also telling that art. 4,
which espouses the general obligation of States Parties to undertake all
appropriate measures to implement rights contained in the CRC does not
refer to jurisdiction or to territory.120
The Optional Protocol on the Involvement of Children in Armed Conflict I.48

(OPAC) and the Optional Protocol on a Communications Procedure (OPIC)
likewise refer to implementation within the jurisdiction of States Parties
without referring to territorial jurisdiction.121 Under its art. 4.2, the Optional
Protocol on the Sale of Children, Child Prostitution and Child Pornography
116 Giselle Corradi and Ellen Desmet, ‘A Review of Literature on Children’s Rights and Legal Pluralism’
(2015) 47 The Journal of Legal Pluralism and Unofficial Law 226–45, 235, 272–4.
117 Maarten den Heijer and Rick Lawson, ‘Extraterritorial Human Rights and the Concept of Jurisdiction’, in
Malcolm Langford, Wouter Vandenhole, Martin Scheinin and Willem van Genugten (eds), Global Justice,
State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cam-
bridge University Press 2013) 155.
118 Ibid., 163.
119 OHCHR, ‘Legislative History of the Convention on the Rights of the Child, Volume I’, 329.
120 Türkelli, Children’s Rights and Business: Governing Obligations and Responsibility.
121 OPAC, art. 6 and OPIC, arts 4 and 5.
25
(OPSC) allows States Parties to establish their extraterritorial criminal juris-

diction over offences enumerated in the OPSC on two conditions: if the
victim is a national of that state (passive personality principle) or if the alleged
offender is a national or a habitual resident of that state (active personality
principle).122 This provision is considered to be a catalyser for domestic
legislation by States Parties ‘making it an offence for their nationals to carry
out sexual offences against children abroad’.123 The reference to jurisdiction in
art. 4.2 OPSC is in line with the meaning of the term under public
international law, which denotes the power to regulate and not specifically
human rights law, which denotes an obligation to regulate instead.124
I.49 In fact, in response to the serious systematic child sexual abuse revelations
within the ranks of the Catholic Church around the globe, the CRC
Committee’s 2014 Concluding Observations on the periodic report of the
Holy See argued that the jurisdiction of the Holy See comprised not only its
own territory but also extended to persons and institutions under its authority:
The Committee is aware of the dual nature of the Holy See’s ratification of the
Convention on the Rights of the Child as the Government of the Vatican City State
and also as a sovereign subject of international law having an original, non-derived
legal personality independent of any territorial authority or jurisdiction. While fully
aware that bishops and major superiors of religious institutes do not act as representa-
tives or delegates of the Roman Pontiff, the Committee notes that subordinates in
Catholic religious orders are bound by obedience to the Pope, in accordance with
Canons 331 and 590 of the Code of canon Law. The Committee therefore reminds
the Holy See that in ratifying the Convention, it made a commitment to implement it
not only within the territory of Vatican City State, but also, as the supreme power of
the Catholic Church, worldwide through individuals and institutions under its
authority.125
I.50 As far as states are concerned, the Committee has thus recognised that
jurisdiction may be constituted more broadly than a state’s own territory and
obligations to implement the rights of the child may extend beyond that
territory to places and situations where it exerts authority. Of course, this
122 For an illustration of how the duty-bearer side of children’s rights may be broadened by using the provisions
in the OPSC, see: Erdem Türkelli, ‘Putting an End to Victims Without Borders: Child Pornography
(Committee on the Rights of the Child)’ in Mark Gibney and Wouter Vandenhole (eds), Litigating
Transnational Human Rights Obligations: Alternative Judgments (Routledge 2014).
123 M Langford, F Coomans, and F Gómez Isa, ‘Extraterritorial Duties in International Law’ in Langford and
others, Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in
International Law, 102.
124 Cedric Ryngaert, ‘The Concept of Jurisdiction in International Law’, in Alexander Orakhelashvili (ed),
Research Handbook on Jurisdiction and Immunities in International Law (Edward Elgar 2015) 54.
125 CRC Committee, Concluding observations on the second periodic report of the Holy See (25 February
2014) CRC/C/VAT/CO/2, para. 8.
26
D. NEW ISSUES AND AMBIGUITIES
interpretation of public international law remains exceptional and the Com-

mittee has thus far only used it in this specific case, with respect to the Holy
See.
The duty to cooperate internationally is another issue that spans extra- I.51
territorial dimensions. The CRC points to a duty of international cooperation
in the context of economic, social and cultural rights (art. 4) as well as more
specifically with respect to access to information (art. 17), right to protection
and humanitarian assistance (art. 22), right to health (art. 24), the right to
education (art. 28) and for the implementation of the CRC itself. (art. 45)
The three OPs to the CRC also place an emphasis on international
cooperation in their effective implementation, especially with respect to
prevention, recovery, rehabilitation and reintegration of child victims
(OPAC art. 7, OPSC art. 10) as well as for knowledge sharing (OPIC, art.
15).126 Although the CRC contains ‘no general and undifferentiated legal
obligation to cooperate internationally for development (in particular with
regard to children)’, there is the indication that implementation of CRC’s
economic, social and cultural rights rests on shared responsibility for develop-
ment, as has also been acknowledged by the CRC Committee.127
1. New issues and gaps
The three decades that have elapsed since the proclamation of the CRC have I.52
brought new topical issues to the debate such as the rights of children in
migration, children in street situations, adolescents, LGBTQI+ children,
children in surrogacy situations and children as a part of the broader discussion
on sustainability. One case in point is ‘children and the environment’, which is
a striking omission in the CRC, a reference in passing in art. 29 CRC
notwithstanding. There is now undoubtedly an increasing awareness of the
additional impact of environmental pollution in all its forms on children.
Likewise, climate change128 and its long-term impacts disproportionately
126 See Michael Nyongesa Wabwile, Legal Protection of Social and Economic Rights of Children in Developing
Countries: Reassessing International Cooperation and Responsibility (University of Leicester 2010); Wouter
Vandenhole, ‘Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate
Internationally for Development?’ (2009) 17 International Journal of Children’s Rights 23–63.
127 Vandenhole, ibid., 61.
128 Karin Arts, ‘A Child Rights Perspective on Climate Change’ in M A Mohamed Salih (ed), Climate Change
and Sustainable Development: New Challenges for Poverty Reduction (Edward Elgar 2009).
27
affect children. Nonetheless, with the exception of some attention to inter-

generational justice, the take-up of sustainable development principles, includ-
ing those linked to the environment, in children’s rights is slow and uneven.129
In addition, new challenges to the implementation of the CRC have arisen
with technological advances such as the widespread use of information and
communication technologies (ICT) giving rise to benefits for children as well
as new risks of exploitation and abuse as well as new and successful methods of
assisted reproduction or procedures such as gene editing.
I.53 Art. 45(c) CRC speaks to the need to deal with new problems or develop-
ments which are not covered by the Convention. This need to interpret the
provisions of the CRC and its Protocols in light of recent developments is
reflected in the various Days of General Discussion held on thematic issues as
well as the GCs of the CRC Committee that have been issued in the last
decade. These thematic areas have included the impact of business on
children’s rights, rights of adolescents, children in street situations, children in
migration, digital media and children, and children and the environment. The
CRC Committee’s interpretation of the CRC and the work of regional human
rights has by and large caught up with the developments in children’s rights
although many of these issues remain blind spots in the CRC itself. Although
many of the issues were not dealt with explicitly in the CRC’s provisions, the
legal approach based on children’s rights has been formed by interpreting the
CRC in a teleological fashion.
2. Ambiguities: limitations and derogations
I.54 The CRC continues to face some challenges in order to mature into a solid
legal instrument. Unlike many other human rights treaties, the CRC does not
contain general provisions on the permissibility of limitations nor on deroga-
tion in times of emergency. Some specific provisions on civil rights such as arts
13 (freedom of expression), 14 (freedom of thought, conscience and religion)
and 15 (freedom of association and peaceful assembly) do have a limitations
clause but others (in particular art. 16 on the right to private life) do not. The
limitation clause in arts 13–15 is very similar to the one typically found in
other human rights treaties. It allows for restrictions or limitations that meet
the requirements of legality (‘provided by law’), legitimacy (serve a legitimate
aim as listed in each specific provision, such as public order, public health or
129 The Special Rapporteur on human rights and the environment, John Knox, includes in his 2018 report on
children’s rights educational and procedural rights of children, as well as heightened obligations for States to
pursue precautionary measures to protect children against environmental harm, see Report of the Special
Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable development (24 January 2018) A/HRC/37/58 paras 71–72.
28
morals, or the fundamental rights and freedoms of others), and necessity/

proportionality. This leaves many questions for interpretation: does the CRC
contain stricter standards than other human rights treaties with similar
provisions or rights? Were these kinds of provisions left out on purpose, or
rather accidentally? Can none of the rights in the CRC be derogated from in
times of emergency?
A reading of the CRC in harmony with international human rights law I.55
suggests the following with regard to derogation. First, given the absolute
nature of the right to life and the prohibition of torture in general human
rights law, the right to life as guaranteed in art. 6.1 CRC and the prohibition
of torture as contained in art. 37(a) CRC are equally absolute, with no
possibility for derogation. Likewise, the prohibition on punishment without
law in art. 40.2(a) CRC and the prohibition of slavery or servitude which may
be read into art. 32.1 CRC can be assumed to be non-derogable (compare art.
4 ICCPR; art. 27 of the American Convention on Human Rights (ACHR);
art. 15 ECHR). The derogation clauses in the three mentioned treaties do not
hold an identical list of non-derogable provisions though, whereby art. 4
ICCPR ‘exceeds the small catalogue of just four essential rights in art. 15 para.
2 ECHR, but ‘…’ lags behind the extensive catalogue of art. 27 para. 2
ACHR’.130 A harmonious reading with art. 4 ICCPR would as a minimum
add the freedom of thought, conscience and religion (art. 14 CRC),131 and
arguably extend to the right to liberty and the right to a fair trial (art. 37(b)–(d)
and art. 40 CRC).132 It is questionable whether such a reading in line with art.
27 ACHR could also be said to be mandatory, since the latter is only a
regional treaty. In such an expansive reading, the right to a name and
nationality (art. 8 CRC), and more generally protection rights of children (in
analogy with art. 19 ACHR on the right to measures of protection of minors)
would all be non-derogable. It is unclear whether derogations from ESC
rights are permissible under the ICESCR, which does not contain a deroga-
tion clause either. Müller has suggested that the Committee on Economic,
Social and Cultural Rights may allow for derogation from labour rights.133
As to limitations, a harmonious reading with international human rights law I.56

results in a long list of CRC rights as relative rights. Since art. 4 ICESCR
130 Angelika Siehr, ‘Derogation Measures under Article 4 ICCPR, with Special Consideration of the ‘War
Against International Terrorism'’ (2004) 47 German Yearbook of International Law 545–93, 557.
131 See also Human Rights Committee, General Comment No. 29: States of Emergency (Article 4) (31 August
2001) UN Doc. CCPR/C/21/Rev.1/Add.11.
132 Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights.
Cases, Materials, and Commentary (Oxford University Press 2004) 627–30.
133 Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9
Human Rights Law Review 557–601, 597.
29
applies to all ESC rights in the Covenant,134 all parallel provisions in the CRC
can be said to contain relative rights, including art. 24 (right to health), art. 26
(right to social security), art. 27 (right to an adequate standard of living) and
art. 28 CRC (right to education). It should be noted, however, that the
ICESCR is stricter in relation to limitations than the ICCPR, since it only
recognises one legitimate aim, that is, the promotion of general welfare. The
CRC Committee has accepted retrogressive measures, but only as temporary
measures in times of economic crisis.135 Given their exceptional and tempor-
ary nature, these retrogressive measures are more akin to derogations than to
limitations. So far, the Committee has not taken a position on the permissi-
bility of limitations to ESC rights in the CRC. The same goes for civil rights
that are subject to limitations in the ICCPR or the ECHR: whereas the CRC
Committee has been silent on this question so far, a harmonious reading with
international human rights law would result in accepting limitations for the
right to private life or the right to information (arts 16–17 CRC). The
permissibility of limitations remains nonetheless unclear for a number of more
CRC specific rights. For instance, is the protection against all forms of
violence in art. 19 CRC subject to limitations? If it is considered to be closely
related to the prohibition of torture, it may well be argued to be absolute rather
than relative.
I.57 Another issue that has not yet been satisfactorily addressed is whether children
can waive (some of their) rights under the CRC. In general human rights law,
rights holders can waive some of their rights under certain conditions. A
waiver of rights is not deemed acceptable by the ECtHR if it runs counter to
an important public interest, such as non-discrimination on grounds of ethnic
origin. So, could children, as an expression of their self-determination,136
waive certain CRC rights? Lansdown suggested they cannot, not so much
because of lack of capacity, but because of the public interest involved:
‘Children, however competent, cannot elect to deny their own rights, as these
are, or should be, universal protections extending to all children.’137 It is
debatable whether each and every right under the CRC is of such a public
interest that no waiver can be allowed in an individual case.
134 Ibid.
135 CRC Committee, General comment No. 19 (2016) on public budgeting for the realization of children’s rights
(art. 4) (20 July 2016) CRC/C/GC/19, para. 31.
136 Jorgen Aall, ‘Waiver of Human Rights. Setting the Scene (Part I/III)’ (2010) 28 Nordic Journal of Human
Rights 300–370.
137 Lansdown, The Evolving Capacities of the Child, 38.
30
E. CONTEXTUALISATION: CHILDREN’S RIGHTS BEYOND THE LEGAL FIELD
Two schools of thought or approaches to children have informed the CRC. I.58
On the one hand, there is the view that children need special protection and
priority care. That was the almost exclusive theme of the 1924 and 1959
Declarations, which should be understood in light of the two World Wars.
On the other hand, there are proponents of recognising children as autono-
mous individuals and ‘fully-fledged beneficiaries of human rights’.138 The
CRC has therefore been hailed as a ‘paradigm shift’139 from paternalism to the
acknowledgement that children are both ‘becomings’ and ‘beings’. This read-
ing has been criticised from at least two perspectives. Some have argued that
the CRC has failed to introduce that paradigmatic shift, and keeps focusing
on the developing child, that is as ‘becomings’.140 Compared to other major
struggles for emancipation, it has been argued that children’s rights have failed
to debunk the ideology of development:
Jenks argues that while social sciences have critically addressed and debunked
dominant ideologies of, for example, capitalism in relation to social class, colonialism
in relation to race, and patriarchy in relation to gender, the ideology of development in
relationship to childhood had remained relatively intact.141
Children have been construed as developing in a similar linear way as

developing countries, in terms of growth stages. Similar ideas of the child have
informed Piaget’s developmental psychology and Parsons’ functionalist
socialisation model. Childhood is a transitional stage, that is not considered
valuable in and out of itself. Children are typically depicted as human
becomings rather than human beings.142 This idea of linear growth and
becoming (‘developmentalism’) has been challenged in childhood studies in
particular. Vanobbergen summarises Jenks’ and James’ and Prout’s alternative
paradigm as follows:
(1) Childhood is understood as a social construction and thus provides a framework

for the interpretation of the first years of life, (2) childhood cannot possibly be
138 Ibid., 27.

139 Michael Freeman, ‘The Value and Values of Children’s Rights’ in Invernizzi and Williams, The Human
Rights of Children. From Visions to Implementation, 27; Invernizzi and Williams, ‘Introduction. Human
Rights of Children: From Visions to Implementation?’ in Invernizzi and Williams, ibid., 7.
140 See, for example, Noam Peleg, ‘Time to Grow Up: The UN Committee on the Rights of the Child’s
Jurisprudence of the Right to Development’ in Freeman (ed), Law and Childhood Studies: Current Legal Issues
vol. 14 (Oxford University Press 2012) 371–91.
141 Barnes, ‘CRC’s Performance of the Child as Developing’, 396–7.
142 Bruno Vanobbergen, ‘Children’s Rights and Childhood Studies. From Living Apart Together Towards a
Happy Marriage’ in Vandenhole and others (eds), Routledge International Handbook of Children’s Rights
Studies, 64–5.
31
considered as a natural or universal characteristic among a group of people, but rather

appears as a specific structural and cultural component within diverse societies,
(3) children’s social relations and cultures are worth studying in themselves, independ-
ent of the perspective and concerns of adults, and (4) children are active in deter-
mining their social life, the life of those they live together with and the society in
which they reside, and are consequently not the passive subjects of social structures
and processes.143
I.59 The two approaches are nowhere more divergent than when debating the issue
of ‘vulnerability’. Even the terminology when referring to children who may be
considered in need of protection is hotly disputed. Depicting children as
vulnerable is problematic. For some, vulnerability is an inherent human
characteristic, not specific to children.144 For others, the notion needs to be
deconstructed.145 Focusing on children’s needs or vulnerability has the com-
pounding effect of reinforcing their dependency on adults and their perceived
powerlessness.146 Recognising children as ‘beings’ as opposed to ‘becomings’
shines a much-needed light on children’s agency, self-determination and
resilience.147
I.60 Contextualisation and recognition of children as agents is also relevant with

respect to the issues that cut across different rights considerations such as
participation, best interests, health, education and others. An example is early
or forced marriages, sometimes referred to as child, early or forced marriages.
Global campaigns to end marriage of persons under the age of 18 refer to such
marriages as serious violations of human rights.148 The CRC does not refer to
the issue of marriage but the CEDAW and CRC Committees have included
it within the definition of ‘harmful traditional practices’ in the CRC and
CEDAW Committees Joint General Recommendation/Comment 31/18.
(See also Commentary on art. 24 CRC on the right to health) Nonetheless, in
the various international instruments, the accent is first and foremost on ‘free
and full consent’ (art. 16.2 UDHR, art. 1.1 Convention on Consent to
Marriage, Minimum Age for Marriage and Registration of Marriages and art.
143 Ibid., 66.

144 Jonathan Herring, ‘Vulnerability, Children, and the Law’ in Freeman, Law and Childhood Studies: Current
Legal Issues Vol. 14.
145 Kristen E Cheney, ‘Deconstructing Childhood Vulnerability: An Introduction’ (2010) 2 Childhood in Africa
4–7.
146 Katherine H Federle, ‘Review Essay: Rights, Not Wrongs’ (2009) 17 International Journal of Children’s
Rights 321–9, 324.
147 Vandenhole, ‘Defence for Children International (DCI) v Belgium (Complaint No 69/2011) ECSR 23
October 2012’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Rewriting Children’s Rights
Judgments: From Academic Vision to New Practice (Hart Publishing 2017), 573–7; Erdem Türkelli, ‘Commen-
tary on DCI v. Belgium (European Committee on Social Rights)’ in ibid., 549–58.
148 See, for instance: UNICEF, ‘Child marriage’, March 2018, https://data.unicef.org/topic/child-protection/
child-marriage/.
32
16.1(b) CEDAW). Of course, full and free consent presupposes that the
person giving such consent is a mature and capable individual. Art. 16.2
CEDAW echoes Article 2 of the 1962 Convention on Consent to Marriage
and states that ‘the betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be taken to specify a
minimum age for marriage and to make the registration of marriages in an
official registry compulsory’. In the joint general comment, there is no
indication that this minimum age should be 18 although the CRC Commit-
tee’s Concluding Observations on States Party periodic reports have noted
that this age should be no lower than 18.149 On the other hand, the reality is
that girl children are disproportionately impacted, frequently married without
their free and full consent to much older men, resulting in negative health,
educational and social outcomes as recognised in the CRC and CEDAW
Committees Joint General Recommendation/Comment 31/18. In this
respect, State Parties must strike a balance between the maturity of a child and
their wishes with protections afforded to children who are seen as ‘vulnerable’,
taking into account the cultural and social contexts that may differ across
countries.
Sandberg admits that the CRC Committee identifies particular groups/ I.61
subgroups of children as vulnerable, in order to have states identify and
implement special measures for these groups.150 She also warns of the risk
of not identifying children in particular vulnerable situations: they may be
simply overlooked.151 The use of ‘children in vulnerable situations’ or
‘children prone to marginalisation’ is increasingly considered preferable over
‘vulnerable children’.
Rather than doing away with vulnerability, the real question may be how to I.62
balance vulnerability and agency. Lansdown provides the bridging narrative of
childhood as a ‘period of relative vulnerability’,152 noting that such vulnerabil-
ity is linked much more to the effects of ‘their lack of power and status with
which to exercise their rights and challenge abuses’ as opposed to any inherent
lack of capacity.153 The ECtHR talks about ‘circumscribed autonomy’: ‘[t]hey
lack the full autonomy of adults but are, nevertheless, subjects of rights …’.154
149 See for instance, CRC Committee, Concluding observations on the combined third to fifth periodic reports
of the United Republic of Tanzania, 3 March 2015, CRC/C/TZA/CO/3-5, para. 24. (The Committee also
invoked Tanzania’s obligations under the African Charter on the Rights and Welfare of the Child.)
150 Kirsten Sandberg, ‘The Convention on the Rights of the Child and the Vulnerability of Children’ (2015) 84
Nordic Journal of International Law 221–47, 229.
151 Ibid., 237.
152 Lansdown, The Evolving Capacities of the Child, 31.
153 Ibid., 32.
154 M and M v. Croatia (application no. 10161/13) ECt.HR (Judgment) 3 September 2015, para. 171.
33
Honwana has introduced the notion of ‘tactical agency’ with regard to child
soldiers, in a similar attempt not to depict children as exclusively vulnerable.155
CRC Committee’s GC 2 notes, for instance, that the vulnerability experi-
enced by children is not only a result of their inherent ‘developmental state’ but
also a result of their constructed lack of political, social and judicial voice due
to limited or inexistent opportunities to have their opinions taken into
account.156 In sum, what Ensor and Gozdźiak note for migrant children is also
true more generally:
Focusing exclusively on children’s weakness, on the one hand, may harm their
self-esteem and undermine their efforts to overcome the challenges they might face.
An excessive emphasis on resilience and coping, on the other hand, could obscure
individual vulnerabilities or even result in blaming those individuals who appear more
vulnerable for their failure to cope.157
I.63 In fact, resilience and vulnerability coexist and this coexistence requires a
holistic approach to children’s rights that takes both vulnerabilities experi-
enced by children and their agency and resilience into account.
I.64 Sociological and ethnographic work into childhood has also made clear that
‘childhood cannot be totally separated from other variables: class, gender,
ethnicity, disability, sexual orientation (though this is less discussed)’.158 This
shows the importance of the fairly recent debate on intersectionality in
children’s rights law. Intersectionality is particularly an issue under art. 2 CRC
on non-discrimination but is also important in the context of specific pro-
visions of the CRC that have a ‘sectional’ focus such as on children with
disabilities, refugee children and children in alternative care. Childhood
Studies has warned about the dangers of fragmenting the child in its various
identities. Not only the child may be fragmented in his or her identities,
childhood may as well. There is an important discussion within childhood
studies, that is also of particular relevance to children’s rights, that is, whether
to recognise a plurality of childhoods or to stick to the ‘one childhood’
thesis.159
155 Alcinda Honwana, ‘Innocent and Guilty. Child-soldiers as Interstitial and Tactical Agents’ in Alcinda
Honwana and Filip De Boeck (eds), Makers and Breakers: Children and Youth in Postcolonial Africa (James
Curry 2005) 32.
156 CRC Committee, General comment No. 2 (2002): The Role of Independent National Human Rights
Institutions in the Promotion and Protection of the Rights of the Child, 15 November 2002, CRC/GC/
2002/2, para. 5.
157 Marisa O Ensor and Elżbieta M Goździak, ‘Migrant Children at the Crossroads: Introduction’ in Marisa O
Ensor and Elżbieta M Goździak (eds), Children and Migration: At the Crossroads of Resiliency and Vulnerabil-
ity (Palgrave Macmillan UK 2010) 7.
158 Freeman, ‘Introduction’ in Freeman (ed), Law and Childhood Studies: Current Legal Issues Volume 14 , 5.
159 Ibid., 7–8.
34
Corradi and Desmet note, based on their study of the literature, that the I.65
interrelationship of ‘global children’s rights standards’ with ‘local norms and
practices’, has taken place either through the use of global standards or local
norms as starting points.160 In addition, while traditional legal conceptions
continue to presume the ‘key role of state law’, it is neither found to be ‘the
most dominant normative order determining children’s fate, nor necessarily
the most supportive one of children’s rights’.161 As such, ‘any children’s rights
strategy needs to be grounded in a deep understanding of children’s realities
and the normative orders at play’, which has led Corradi and Desmet to
conclude that ‘more sustained ethnographic fieldwork’ is needed to uncover
such realities.162
Anthropology’s ‘renewed interest in children … is especially motivated by the I.66

desire to document and analyse their lifeworlds, the ways in which they
perceive social life, as well as their ability for resistance and symbolic creativ-
ity’.163 A fine example of the study of the lived experiences of children’s rights
can be found in a collection on Africa, in which it is argued that ‘for children’s
rights to be realized in Africa there is a need to work with the cultural values
that remain important to communities instead of work against them or
overlook their existence’.164 This raises the challenging universality versus
particularity debate.165 There are basically two schools: those who argue that
the CRC is universal and inclusive (and/or has the ability to accommodate
cultural difference), and those who suggest that more is needed to achieve that
inclusiveness and hence universalism.166 In this context, Quennerstedt has
suggested to deal with the CRC as a political document rather than as a legal
instrument.167 Rights cannot be seen as ‘pre-political’: they are ‘open to
renegotiation and reinterpretation’.168 Children as rights holders are not seen
as abstract humans, but as humans ‘embedded in specific social and status
circumstances’.169
160 Corradi and Desmet, ‘A Review of Literature on Children’s Rights and Legal Pluralism’, 239.
161 Ibid.
162 Ibid.
163 André, ‘Anthropologists, ethnographers and children’s rights: Critiques, resistance and powers’, 125.
164 Afua Twum-Danso Imoh, ‘Realizing children’s rights in Africa: An introduction’, 13.
165 Marie-Bénédicte Dembour, Who Believes in Human Rights?: Reflections on the European Convention (Cam-
bridge University Press 2006).
166 See a number of contributions: in Afua Twum-Danso Imoh and Nicola Ansell (eds), Children’s Lives in an
Era of Children’s Rights: The Progress of the Convention on the Rights of the Child in Africa (Routledge 2014).
167 Quennerstedt, ‘Transforming Children’s Human Rights-From Universal Claims to National Particularity’
in Freeman (ed), Law and Childhood Studies : Current Legal Issues Volume 14, 105.
168 Ibid., 107.
169 Ibid., 106.
35
I.67 In her theoretical approach to the process of transformation and contextual-

isation, she borrows from Benhabib the notion of democratic iterations, that is
the processes of ‘re-creation and re-interpretation of meaning that takes place
in public conversations in various arenas, for example law, policy, and
culture.’170 Merry and Levitt have introduced the notion of vernacularisation
of human rights to highlight a similar process of recreation at the micro-level:
they emphasise the social role of the vernaculariser as a key factor171 on the
continuum of replication and hybridisation.172 Kaime puts an accent on
‘concrete opportunities for participation’ in children’s rights agenda-setting as
a driver, noting that their denial ‘only serves to alienate many capable
individuals from the process of “vernacularizing” children’s rights’.173 When
children and their parents have these opportunities, families and communities
are ‘empower[ed] ‘…’ to take on the challenge of promoting and protecting
children’s rights’.174 From a legal perspective, the thorny question is whether
and which red lines there are for these democratic iterations and vernacular-
isation processes.
I.68 Child citizenship is a notion that is quite often linked to children’s rights
outside the legal community. The underlying idea is that of membership of
children of a political community, in which they have rights and responsibil-
ities.175 Child citizenship should not be reduced to voting and election. In an
edited volume on children and citizenship, Lister submits that ‘a child-
sensitive theorization and practice of citizenship’ is needed.176 She identifies
membership, rights, duties, and equality as the four building blocks of
citizenship, and submits that ‘some of the building blocks of citizenship are
more compatible with childhood than others’.177 Lister concludes that chil-
dren’s ‘participation as political and social actors’, their recognition and rights
other than participation rights is at stake in the notion of child citizenship.178
But she also warns for the ‘adult template’ underpinning (traditional) mean-
ings of citizenship, in addition to the ‘male template’.179 Cockburn argues that
170 Ibid., 108.

171 Peggy Levitt and Sally Merry, ‘Vernacularization on the Ground: Local Uses of Global Women’s Rights in
Peru, China, India and the United States’ (2009) 9 Global Networks 441–61, 444.
172 Sally Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006) 108 American
Anthropologist 38–51, 44–6.
173 Kaime, ‘“Vernacularising” the Convention on the Rights of the Child: Rights and Culture as Analytic
Tools’, 650.
174 Ibid.
175 Constance Flanagan, Teenage Citizens: Political Theories of the Young (Harvard University Press 2012) 2.
176 Ruth Lister, ‘Unpacking Children’s Citizenship’ in Antonella Invernizzi and Jane Williams (eds) Children
and Citizenship (SAGE Publications 2008) 9.
177 Ibid., 10.
178 Ibid., 11–13.
179 Ibid., 14.
36
F. OUR APPROACH
‘it is necessary to reclaim children’s right to be considered citizens’ by

‘challeng[ing] previous constructions of children that have served to exclude
them from being considered worthy or capable of having responsibilities or
laying claim to rights’.180
Engagement with disciplines beyond the law is beneficial in a legal commen- I.69
tary such as the present one because it allows an appraisal of legal norms
embodied in the CRC and its OPs against the backdrop of political, social,
economic and anthropological realities as well as the plethora of children’s
experiences across the globe. Such an engagement may also allow for ‘ques-
tioning, often disciplinary-specific, assumptions and constructions’ and thus
enhance a critical analytical approach to the legal discipline through the use of
‘insights and methodologies developed in other disciplines’.181
F. OUR APPROACH
The present Commentary seeks to first provide a legal interpretation of each I.70
article of the CRC as well as its three OPs, focusing on the substantive rights
and obligations contained therein and is therefore based first and foremost on
the text of the CRC and its Protocols. In addition, the travaux préparatoires
are consulted in cases where the intentions of the drafters are important in
interpreting a provision, especially in the cases of contentious issues. Particu-
larly contentious points resulting in long negotiations included the definition
of the child (art. 1), the right of the child to express his or her views (art. 12),
right to freedom of expression (art. 13), right to freedom of thought,
conscience and religion (art. 14), role of mass media (art. 17), adoption (art.
21), the right to education (art. 28) as well as children in armed conflict (art.
38).182 When analysing the travaux préparatoires, the input from UN depart-
ments and agencies such as UNICEF, UNESCO and WHO during the
technical review in 1988 were taken into account in addition to the perspec-
tives taken by negotiating state representatives. In assessing the travaux
préparatoires, it is worth noting the considerable influence of the representa-
tives from the United States on the language adopted in the treaty during the
negotiations, even though the US did not eventually ratify the treaty.
180 Cockburn, Rethinking Children’s Citizenship, 6.

181 Desmet and others, ‘Conclusion: Towards a Field of Critical Children’s Rights’, in Vandenhole and others,
Routledge International Handbook of Children’s Rights Studies, 422.
182 OHCHR, ‘Legislative History of the Convention on the Rights of the Child, Volume I, xli.
37
I.71 The approach to legal interpretation espoused by the authors stays true of
Article 31 of the Vienna Convention on the Law of Treaties (1969), which
states:
Article 31. General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
I.72 In distinguishing the ‘object and purpose’ of the CRC and its OPs, the
Commentary also takes note of semantic distinctions in modal verbs used in
the treaty to infer the type of obligation contained therein. For instance, ‘shall’
used to describe obligations contained in articles is understood to denote ‘as
[must], a mandatory intent even if the latter is used above all to establish
requirements or conditions’.183 Williams notes that should is also used in
prescriptive texts, such as international treaties, ‘for example when enunciating
general guidelines and principles which often have strongly moral or ethical
overtones’ and references art. 27.2 CRC as an example: ‘The benefits should,
where appropriate, be granted, taking into account the resources and circum-
stances of the child and persons having responsibility for the maintenance of
the child, as well as any other consideration relevant to an application for
benefits made by or on behalf of the child.’ [original emphasis]184 Williams
posits that the use of the ‘medium-strength’ modal verb ‘should’ is informed by
183 Germana D’Acquisto and Stefania D’Avanzo, ‘The Role of SHALL and SHOULD in Two International
Treaties’ (2009) 3(1) Critical Approaches to Discourse Analysis across Disciplines 36–45, 40.
184 Christopher Williams, Tradition and Change in Legal English: Verbal Constructions in Prescriptive Texts (Peter
Lang 2007) 128 and 129, respectively.
38
F. OUR APPROACH
the desire to draft international conventions ‘broad enough to cover an almost

infinite range of situations’.185 In this Commentary, CRC provisions that use
the modal verb shall or must are considered to contain a strong obligation for
duty-bearers while provisions using the modal verb should are considered
weak obligations. A strict obligation, on the other hand, is where no discretion
is given to the State Party.
The Commentary relies on GCs of the CRC Committee as well as of other I.73
UN treaty bodies, where relevant, in providing a teleological interpretation of
treaty provisions, especially as regards topical issues that have emerged since
the drafting of the Convention and its Protocols. The GCs provide interpret-
ative guidance on specific provisions of the CRC as well as the content of
specific rights by ‘distil[ling] its considered views on an issue which arises out
of the provisions of the treaty whose implementation it supervises’.186 In
addition, GCs have been used by the Committee to provide guidance on issues
that have not been explicitly referenced in the CRC such as the situation of
children in migration or street situations, state obligations as regards budget-
ing or with respect to business activities.
In cases where there are no other sources of interpretation on an issue, the I.74
authors have looked at the reporting process, primarily the various versions of
the Reporting Guidelines187 which have been revised since the adoption of the
CRC. The Concluding Observations have not been systematically used as
sources of interpretation for the substantive provisions of the CRC or the
Protocols given that Concluding Observations are written in response to a
State Party’s children’s rights performance at a given point in time and that the
agenda items in vogue may have a bearing on what issues are specifically
problematised or flagged in any given assessment of periodic reports. In
contrast to GCs that are written with a view to clarifying issues linked to the
substance of rights or of obligations, Concluding Observations tackle the
185 Ibid., 129.

186 Philip Alston, ‘The Historical Origins of the Concept of “General Comments” in Human Rights Law’, in
L Boisson de Chazournes and V Gowland Debbas (eds), The International Legal System in Quest of Equity
and Universality: Liber Amicorum Georges Abi-Saab (Martinus Nijhoff 2001) 763–76, 763.
187 The most recent guidelines date from 2015: CRC Committee, Treaty-specific guidelines regarding the form
and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the
Convention on the Rights of the Child (3 March 2015) CRC/C/58/Rev.3. The initial reporting guidelines,
issued in 1991 (General guidelines regarding the form and content of initial reports to be submitted by States
parties under article 44, paragraph 1 (a), of the Convention: Convention on the Rights of the Child (15
October 1991) CRC/C/5 and various updates (CRC Committee, General Guidelines Regarding the Form
and Contents of Periodic Reports to be Submitted by States Parties, under Article 44, Paragraph 1 (B), of
the Convention (11 October 1996) CRC/C/58; CRC Committee, CRC Treaty Specific Reporting
Guidelines, Harmonized According To The Common Core Document (1 October 2010) CRC/C/58/
Rev.2) have also been used in the Commentary.
39
question of state performance in implementing the CRC and its Protocols.

With respect to state reporting, the CRC Committee states that:
[t]he treaty-specific report should contain additional information specific to the

implementation of the Convention and its Optional Protocols, taking into account the
relevant general comments of the Committee, as well as information of a more
analytical nature on how laws, legal systems, jurisprudence, the institutional frame-
work, policies and programmes impact on children within the jurisdiction of the State
Party.188
I.75 Where relevant, the Commentary also inspects perspectives from other fields
of law, such as labour law, private law or criminal law and general human
rights law, in providing a concise but comprehensive interpretation of any
given provision. Such perspectives are explored in the context inter alia of
issues such as child labour, child abduction and the sexual exploitation of
children. Insights from other disciplines are included in so far as they bear on
the legal interpretation of a provision or its implementation. Finally, the
Commentary engages with contemporary issues and questions in relation to
respective provisions of the CRC and its Protocols. In order to contextualise
the provisions in the contemporary setting, the Commentary relies on reports
produced by UN Special Rapporteurs, academic literature and grey literature
from intergovernmental organisations as well as non-governmental organ-
isations. The United Nations has a Special Rapporteur on the sale and sexual
exploitation of children, the Office of the Special Representative of the
Secretary General for Children and Armed Conflict and the Office of the
Special Representative of the Secretary General on Violence against Children.
The Special Rapporteur and the two Special Representatives have been
undertaking studies and producing both annual and thematic reports, some of
which illuminate contemporary issues in relation to their mandates such as
surrogacy, cyberbullying, the responsibilities of the private sector, and the
impact of information and communication technologies.
I.76 The basis of the conceptual framework used in this Commentary with respect
to children’s rights obligations is informed by Eide’s tripartite typology of
human rights obligations: respect, protect and fulfil.189 The typology, origin-
ally used in the context of Eide’s work as the then UN Special Rapporteur on
188 CRC Committee, Treaty-specific guidelines regarding the form and content of periodic reports to be
submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child
(3 March 2015) CRC/C/58/Rev.3, para. 13.
189 Asbjørn Eide (UN Special Rapporteur for the Right to Food), The Right to Adequate Food as a Human Right:
Final Report submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23, 1987, 29.
40
F. OUR APPROACH
the Right to Food, is not without critics and criticism.190 Nonetheless, it has
since become a universally recognisable framework that provides a common
metric in communicating with States Parties, UN institutions and agencies,
the civil society as well as academics. In this context, the obligation to respect
is understood as the obligation to abstain from violating a right, commonly
called ‘do no harm’. The obligation to protect is the obligation to prevent third
parties from violating a right, while the obligation to fulfil means an obligation
to ensure the realisation of the right, through provision, facilitation or
promotion.191 The normative content of the tripartite typology of obligations
as expounded by the CESCR as well as the CRC Committee especially with
respect to ESC rights, may be illustrated in Figure I.1 below:
Respect Protect Fulﬁl
Obligaons to facilitate, provide &

Refrain from interfering directly Prevent third pares from promote: Adopt appropriate
legislave, budgetary, judicial,
or indirectly with the interfering with right promoonal and other measures
enjoyment of the right guarantees towards the full-realizaon of the
right
Protect freedoms & Fulﬁl the entlements through

Respect freedoms &
entlements from third pares facilitaon, direct provision or
entlements promoon
or from other threats
Source: Based on CESCR GC 14 para. 33 and CRC Committee GC 15 para. 71.
Figure I.1 The tripartite typology of obligations
The Commentary also makes references to negative and positive obligations. I.77
Negative obligations are understood as obligations to refrain from violating a
right. Positive obligations are understood as obligations to take action through
measures to realise a right.
There are certain limitations of the Commentary. The Commentary seeks to I.78
achieve a comprehensive but succinct treatment of children’s rights law as it is
embodied in the CRC. Therefore, it does not purport to present a literature
190 For an overview of the different typologies as well as a critique, see: Ida Elisabeth Koch, Human Rights as
Indivisible Rights: The Protection of Socioeconomic Demands under the European Convention on Human Rights
(Brill 2009) 14–20.
191 Committee on Economic, Social and Cultural Rights (CESCR), General Comment (GC) 14, The right to
the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4, 2000,
para. 33.
41
review of children’s rights or children’s rights law. It takes first and foremost a
legal technical perspective and purposefully presents the selection of most
notable scholarship, case law and transdisciplinary insights in interpreting the
provisions of the CRC and its OPs.
I.79 Many issues treated in the relevant chapters of the Commentary are cross-
cutting, such as non-discrimination, contemporary challenges to children’s
rights in light of the digital revolution, assisted procreation and migration.
Where the CRC foresees a lead provision with respect to an issue, such as art.
2 on non-discrimination, the Commentary also follows the CRC. When the
issue is not explicitly included in the CRC but has been tied subsequently to
the content of an article, such as migration and its link to refugee children, the
issue is tackled in the Commentary of that article, in this case art. 22 CRC.
Likewise, the chapter on art. 6 CRC is the lead chapter on issues about the
beginning and end of life, including abortion and euthanasia, even though
abortion as an issue features in the chapter on art. 24 on the right to health and
euthanasia is also covered in the chapter on art. 5 CRC in the context of
evolving capacities. The situation of LGBTQI+ children is covered under art.
2 on non-discrimination as well as art. 24 on the right to health, in the context
of right to health information. The issue of children in street situations is
covered in various articles, including art. 19 on protection from violence and
art. 33 on protection from drugs. The issue of children and the environment is
covered in art. 24 in relation to the right to health. As a multifaceted issue,
surrogacy is covered in arts 7, 8 on nationality and identity as well as art. 35 in
relation to the sale of children. The impact of ICTs on access to information is
tackled in art. 17, sexual exploitation through ICTs in art. 34 and cyber-
bullying is tackled in art. 19. In issues linked to armed conflict, the Commen-
tary first sets out the stage through the chapter on art. 38 and offers a more
specific analysis of state obligations linked to OPAC on the chapter on
OPAC. On sexual exploitation of children and sale of children, chapters on
arts 34 and 35 offer a broader legal context around the issues and the chapter
on OPSC analyses additional state obligations under that optional protocol
linked to jurisdiction and prosecution as well as rehabilitation and recovery.
I.80 The Commentary surveys case law from international courts, international
bodies and regional human rights systems but does not delve into domestic
case law given that the opportunities to extrapolate legal interpretative insights
from domestic case law is at best limited due to the particularities of each
domestic jurisdiction with its own rules and procedures.
I.81 Each chapter on a substantive article commences with an overall introductory

summary of the article, moves on to interpret the substance of the article in
42
F. OUR APPROACH
terms of obligations and key issues incorporating the drafting history, inter-
pretation of treaty bodies and case law as relevant. Where pertinent, the
chapter then addresses contemporary legal debates as well as considerations
beyond the law.
While this Commentary can be read cover to cover, it has been conceptualised I.82
as a work that will primarily be consulted. As such, each chapter serves as a
stand-alone commentary on the topic. For this reason, various chapters
reiterate key concepts and issues such as, inter alia, best interests, participation,
progressive realisation, retrogressive measures, balancing of interests. Where
such key concepts and issues have been tackled in multiple chapters, cross-
references have been provided.
The manuscript was drafted over a two-year period, and finalised on and I.83
updated until 1 May 2019. To each chapter, a lead author was assigned. Each
of the chapters was subsequently reviewed by the other two authors. The
authors held regular meetings every two to three months to discuss drafted
chapters and outstanding substantive issues. Consecutive rounds of revisions
were undertaken. Gamze Erdem Türkelli took the lead in drafting the
Introduction, which was co-authored with Wouter Vandenhole. Wouter
Vandenhole authored the commentary on arts 1, 2, 4, 5, 7, 8, 14, 18, 20, 21,
23, 25, 26, 27, 28, 29, 41, 43, 44, 45, 46-51 as well as OPAC. Gamze Erdem
Türkelli authored the Commentary on the Preamble, arts 10, 19, 22, 24, 30,
31, 32, 33, 34, 35, 36, 38, 39, 42 as well as OPSC. Sara Lembrechts authored
the commentary on arts 3, 9, 11, 12, 13, 15, 16, 17. The Commentary on arts
6, 37 and 40 and OPIC were co-authored by Sara Lembrechts and Gamze
Erdem Türkelli. This being said, we, each and all, take full responsibility for
the entire manuscript.
43
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List of abbreviations xiv

Introduction: Three decades of children’s rights law 1

Article 37: Deprivation of liberty, prohibition of torture, degrading and inhuman

EXTENDED TABLE OF CONTENTS

List of abbreviations xiv

Introduction: Three decades of children’s rights law

Article 1: Scope of application

Article 3: Best interests of the child

Article 4: General obligation

EXTENDED TABLE OF CONTENTS

Article 6: The right to life, survival and development

Article 7: Name and nationality

Article 8: Preservation of identity

Article 9: Separation from parents

Article 10: Family reunification

Article 11: Illicit transfer and non-return of children

Article 12: The views of the child

Article 13: Freedom of expression

EXTENDED TABLE OF CONTENTS

Article 14: Freedom of thought, conscience and religion

Article 15: Freedom of association and peaceful assembly

Article 16: The right to privacy

Article 17: Access to appropriate information through media

Article 19: Protection from all forms of violence

Article 20: Children deprived of their family environment

Article 21: Adoption

EXTENDED TABLE OF CONTENTS

Article 22: Asylum seeking and refugee children

Article 23: Children with disabilities

Article 24: Right to health

Article 25: Periodic review of placement

Article 26: Social security

Article 27: Adequate standard of living

Article 28: Right to education

Article 29: Aims of education

Article 30: Rights of children from minorities and indigenous origin

EXTENDED TABLE OF CONTENTS

C. CONTEMPORARY DEBATES 30.10

Article 31: Rest, leisure and play

Article 32: Protection from economic exploitation

Article 33: Protection from drugs

Article 34: Protection from sexual exploitation and abuse

Article 35: Prevention of abduction, sale and trafficking

Article 36: Protection against all other forms of exploitation

Article 37: Deprivation of liberty, prohibition of torture, degrading and inhuman

Article 38: Children in armed conflict

Article 39: Recovery and reintegration of child victims

EXTENDED TABLE OF CONTENTS

B. KEY ISSUES 39.12