因應兒童權利公約(CRC)國內法化後隨之而來的首次國家報告審查，台灣兒童權利公約聯盟3/8-10特別邀請聯合國兒童權利委員會前主席Jaap E. Doek教授來台，教台灣的NGO撰寫CRC替代報告。並針對「兒童權利公約的落實-不同行動者的角色和責任」進行專題演講。Doek教授願意將演講稿件分享給大家，以下是他的演講內容:

The implementation of the UNCRC: Roles and responsibilities for different actors.

Prof. Jaap E. Doek

 

1 Introduction to the UNCRC.

For many centuries children were seen as human beings in need of special care and protection. The first recognition of the rights of the child: The Geneva Declaration adopted by the League of Nations on 26 September 1924 reflects this view, For instance: “The child that is hungry must be fed; the child that is sick must be nursed” and  “the orphan and the waif must be sheltered and succored” and “ the child must be protected against every form of exploitation”. It was the first international document that looked at the needs of children from a rights perspective. After World War II this document was replaced by  the  Declaration of the Rights of the Child adopted in 1959 by the General Assembly of the United Nations.[1] This document  elaborated and expanded in 10 Principles the 1924 Declaration. It not only contains the often cited phrase: “mankind owes to the child the best it has to give” but also presented the principles as RIGHTS. Principle 1 states: “The child shall enjoy all the rights set forth in this Declaration. Every child without any exception whatsoever, shall be entitled to these rights(,,,,,)”. For instance:

Principle 2: The child  (…..) shall be given opportunites and facilities (….) to develop (….) in a healthy and normal manner and in conditions of freedom and dignity”. Furthermore (Principle 4): “The child shall enjoy the benefits of social security. He shall be entiteld to grow and develop in health; to this end , special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post natal care (…)”. And (Principle 7): “The child is entitled to receive education” and: “The best interests of the child shall be the guiding principle of those responsible for his education; that responsibility lies in the first place with his parents”. Finally Principle 10: “The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic in any form”.

However, this Declaration was not a legally binding document.

The UN General Assembly proclaimed the year 1979 as the International Year of the Child. It became a milestone in the development of the rights of the child. It generated a wealth of activities in many countries in the world but most importantly it had a lasting impact due to the proposal of the Polish government to turn the 1959 Declaration into an international binding treaty of the human rights of children. This proposal led to the establishment ( by the then UN Human Rights Commission) of an Open-ended Working Group for the drafting of this treaty consisting of representatives of member States of the UN.,But NGO’s and UN agencies like UNICEF participated in this drafting process that took place between 1979 and 1989.[2]  The result of this work: The United Nations Convention on the Rights of the Child was unanimously adopted by the UN General Assembly on 20 November 1989  ( the date was chosen on purpose: it was 30 years after the adoption of the 1959 Declaration). It became the most succesful Human rights treaty in the history of United Nations: it entered into force within a year after its adoption on 2 September 1990 ( no other treaty ever entered into force that quickly) and an unprecedented number of countries ratified the UNCRC. Today 197 countries have formally committed themselves to full implementation of the rights of the child as enshrined in the UN CRC ( 196 states formally ratified it and Taiwan joined these countries thanks to the decision of its parlement to approve the UN CRC  as a binding instrument: the only country that did till now not ratify the UNCRC: The United States of America).

Before dealing with the roles and responsibilities of different actors in the implementation of this almost universally ratified treaty on the Human rights of children a brief overview of its main characteristics and provisions. It should be noted that there are three Optional Protocols to the CRC: the Optional Protocol on teh involvement of children in armed conflict (OPAC),The Optional Protocol on the sale of children, child prostitution and child pornography(OPSC) and the Optional Protocol on a communications procedure (OPCP).[3]

I will not include them in my presentation because of time constraints but also because they have not been approved by the parlement of Taiwan. However, the content of in particular the OPSC and the OPAC should be taken into account when implementing in Taiwan the articles of the CRC on sexual abuse and sexual exploitation (art.34) and on children in armed conflict (art.38) and farticle 39 on the right of the child victim of these violations of their rights to recovery and social reintegration.

The CRC Committee regularly issues so called General Comments and I shall hereafter refer to some of them. These documents provide guidance and recommendations for the implementation of the UNCRC. Some deal with an article, for instance article 3 para 1 ( GC No 14). article 12 (GC No 12)and article 19 (GC No.13); other deal with implementation of the UNCRC for specific groups of children, for instance, Very young children (GC No 7 on Early Childhood), children with disabilities (GC No 9) and indigenous children (GC No 11). General Comments are authoritative documents which should be take into account when States parties implement the UNCRC.

2. The UNCRC: a brief overview of its content.[4]

2.a. The  UNCRC is  one of the most comprehensive human rights treaties: it covers both civil and political rights and economic, social and cultural rights of children. many of these rights can also be found in the ICCPR and ICESCR. But the added value of the CRC is that they are more elaborated and tailored to the specific needs and development of the child while taking into account the primary responsibilities of parents or other caregivers. Example: Art. 11 ICSECR  recognizes the right of everyone to an adequate standard of living. This is right is confirmed in article 27 UNCRC. But is more specific: the child has the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development and parents have the primary responsibility to secure this standard of living within their abilities and financial capacities. But at the same time the State must take appropriate measures to assist parents to implement this right  and should in case of need provide the material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

2.b. The UNCRC contains many articles in which the child is provided with the right to protection ( art. 19, 20, 21 , 22, 23, 32 – 38; child labour,  use of and trafficking in drugs, sexual abuse and exploitation, abduction, sale and traffic in children, protection against involvement in armed conflict, prohibition of torture, cruel, inhuman and degrading treatment or punishment). But it is more than an international document which entitles children to special care and protection. It is at the same time and equally important as a document which recognizes and respects children as human beings with evolving capacities which allow them to increasingly participate in all matters of concern to them and to exercise their rights. In other words, it is an internationally binding document which provides them with tools of empowerment.

2.c. Structure and content. The UN CRC does not have a specific structure in terms of sections with subheadings. The order of the articles can be partly explained by the fact that the starting point of the drafting was the 1959 Declaration on the Rights of the Child. So the UNCRC started with the order of the 10 Principles of that Declaration. But in the course of the drafting process many more article were added to those 10 principles. In its Guidelines for reporting[5] the CRC Committee has provided a structure by grouping the articles in 11 clusters in order to avoid a reporting article by article and to support the States parties in their reporting. For example, the report should start with information on the cluster Geneal measures of Implementation ( I’ll come back to this one when elaborating on the role and responsibilities of different actors). Other clusters are e.g. General Principles, Civil rights and freedoms, Violence against children,  Family environment and alternative care, Disability, basic health and welfare, Education, leisure and cultural activities and Special protection measures. It goes well beyond the time available for my presentation to deal with all these clusters. But special attention must be given to the General principles because the provisions under this cluster are of critical importance for the implementation of all other articles of the UNCRC.

These provisions are:

Article 2 requiring States parties to respect and ensure the rights in the UNCRC to each child within their jurisdiction without discrimination of any kind. It means that all children on the territory of the State shall enjoy all the rights in the UNCRC irrespective of inter alia  the race, colour, sex, religion, language, national or social origin, disability birth or other status of the child or of her or his parents or legal guardians. This right to non discrimination must be applied to the implementation of all articles of the UNCRC. In many situations the implementation of this right is a challenge. For instance: are children of illegal immigrants in Taiwan ( or any other country) entitled to the enjoyment of all rights in the CRC? Article 2 clearly states that the status of the parents of a child (in this case the status of illegal immigrant) can not be a justification for discrimination. So in principle the answer to this question is YES. However the realisation of rights for this child may encounter different practical barriers.

Article 3, para 1 states that the best interests of the child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare  institutions, courts of law, administrative authorities or legislative bodies. For all actors involved in the implementation of the UNCRC the compliance with this principle is a challenge. In all concrete actions they undertake such as legislation, programmes and policies and court decisions they have to answer the question: what is in the best interests of the child? There is no simple and single answer to this question. Many factors may play a role in the efforts to find an answer and depends on the interpretation and weight of these factors. The CRC Committee has provided guidance for all actors regarding the interpretation and  implementation of the principle of the best interests of the child in General Comment No 14 (2013).[6]  Among others the Committee provide an overview of the elements which should be taken into account when assessing the child’s best interests:

The views of the child, meaning that the child should participate in the assessment of her or his bests interests.

The child’s identity, for example, when considering a foster home or placement for a child due regard shall be paid to the desirability of contnuity in the child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

Preservation of the family environment and maintaining relations. Separation fo a child from her or his parents should only occur as a last resort measure. It should not take place if less intrusive measures could protect the child such as support to the parents in order to restore and enhance thefamily’s capacity to take care of teh child. Poverty should never be the only justification for removal of the child but should bes een as a signal for the need to provide appropriate support to the family.

Care, protection and safety of the child. Applying the best interests principle means assessing the safety and integrity of the child at the current time but also of the possibilty of future risk and harm and other consequences of the decision for the child’s safety.

The child’s right to health and to education are obviously important elements of the assessment of the best interests of the child. All actions taken to implement these rights must be in the best interests of the child, meaning inter alia that they contribute the achieving the highest attainable standard of health and to accessible education of good quality for every child.

As an example of the difficulty of assessing what is in the best interests of the child: the parents of a child (12 years old), his Taiwanese father and his Indonesian mother appear in court because the mother wants to return to Indonesia with the child but the father is against this plan and refuses to give his permission for the return to Indonesia with the child. In his opinion the return to Indonesia is OK but without the child. He should stay in Taiwan with his father. The mother wants the court to overrule the father and give her permission to go to Indonesia with her child. What is in the best interests of this 12 year old boy  is the difficult question the judge has to answer. The factors the cRC Committee mentioned in its General Comment may guide the Judge in heror his decision.

Article 6 recognizes the inherent right of every child to life and requires states parties to ensure to the maximum extent possible the survival and development of the child. All implementation of the rights in the UNCRC must refrain from any action that can endanger the life of a child and contribute to the survival and development of the child. The CRC Committee has paid attention to the meaning of  this article in most of its General Comments and in the country specific Concluding Observations.. For instance in General Comment no.7 on implementing children’s rights in early childhood the Committee refered to article 6 urging States parties to improve perinatal care for mothers and babies, reduce infant and child mortality and create conditions that promote the well-being of all children.[7] But the attention given in Concluding Observations to article 6 covers a lot of different issues like traffic accidents, suicide and topics which should be dealt with under other article and is not as consistent as it should be.[8]

Article 12 provides the child capable of forming her or his views with the right to express those views freely in all matters affecting the child and they should be given due weight in accordance with the age and maturity of the child. Paragraph 2 of this article states that for assuring this right the child must be provided with an opportunity to be heard in any judicial and administrative proceedings affecting the child. This article has been and still is the driving force behind the concept of child participation and thus for the recognition of the child as an important actor for social change.[9]  This concept of participation should also be linked to the  civil rights and freedoms of the child like article 13 on the right to freedom of expression which includes the right to seek, receive and  impart information and ideas of all kind and article 15 on the right of the child to freedom of association and to freedom of peaceful assembly.

However, article 12  does  raise quite a number of questions e.g. when and/or at what age is the child capable of  forming her or his views and to what extent does the age and maturity of the child influences the due weight that should be given to the views of the child? Questions relevant for all actors involved in the implementation of the UNCRC.

The  CRC Committee has provided a detailed legal analysis of article 12 in its General Comment No 12 (2009).[10] In relation to the questions raised  the Committee observed interalia: “ This ( the phrase: “capable of forming her or his views”) means that states parties cannot  begin with the assumptions that a child is incapable of expressing her or his views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity”. Furthermore: “ The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views and discourages States parties from introducing age limits either in law or in practice (…)” (GC No 12 para. 20 and 21). What this means for the practice of e.g.  legal proceedings is explained by the Committee for proceedings regarding divorce and separation. It noted the fact that some jurisdictions, either as a matter of policy or legislation, prefer to state an age at which the child is capable of expressing her or his own views, the Convention however anticipates that this matter be determined on a case-by- case basis, since it refers to age and maturity, and for this  reason requires an invidual assessment of the capacity of the child (GC No. 12, para 51).[11]

Concerning the matter of due weight the Committee is not providing clear guidance because under  the phrase “being given due weight in accordance with the age and maturity of the child” ( para. 28 -30 GC No 12) it states hat this clause refers to the capacity of the child to express her or his views. It suggests that the weight that should be given to the views depends on the level of capacity to understand a particular matter and to express her or his views on this matter in a reasonable and independent manner. In short:  it is not easy to give due weight to the views of the child in accordance with her/his maturity and age. However, the Committee encourages States parties “to introducé legislative measures requiring decision makers in judicialor administrative proceedings to explain the extent of the considerations given to the views of the child and the consequences for the child” (GC no 12 para 33).

All actors who have role and responsibilities in the implementation of the UNCRC  should be aware that this implementation must take place with full respect for these General Principles.

 

3. Different actors and their role and responsiblities in the implementation of the UNCRC.

The implementation of the UNCRC is and remains a matter of the highest priority. Given the nature of this treaty the first responsibility for its implementation is on the governments of states which ratified it.  They are legally bound to take all necessary measures for achieving the realization of the obligations undertaken in the UNCRC. But at the same time the international community recognizes also the role and responsibilities of other actors like specialized UN agencies, national and international Non Governmental Organisations (NGO’s) and other civil society organisations ( e.g. organisations of professionals working with or for children) and increasingly the business sector. In this compilation of different actors the ones that are often overlooked are the parents and the children themselves although they are very important. Thus I will begin this part of my presentation with the role and responsiblities of parents, other caregivers and the child. The importance of their roles can be expressed in the statement: “The implementation of children’s rights starts at home”.

3.a. Parents and children.

Some people are of the view that the convention on the rights of the child undermines  the responsibilities of parents and would allow the State to interfere in a disproportionate manner in the upbringing of children by their parents. This view is used by various groups in the USA as an important argument against ratification of the UNCRC. But this argument can not be justified by the provisions of the UNCRC. On the contrary, the UNCRC fully recognizes the important role and responsiblities of parents for the upbringing of their children and the realization of their rights. The core articles in this regard are article 18, 27 and 5.

Article 18: States parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities  for the upbringing and development of the child. And : The best  interests of the child will be their basic concern. The obligation of the State is to render appropriate assistance to parents ( and legal guardians) in the performance  of their child rearing responsibilities NB! “for the purpose of guaranteeing and promoting the rights set forth in the present Convention”.  This implies the assumption that parents should be play a critical role in the implementation of the rights of their children.

 A concrete example of this role can be found in article 27 in which States parties recognize the right of the child to a standard of living adequate for the child’s pysical, mental, spiritual, moral and social development. Parents ( or others responsible for the child e.g. foster parents) have the primary responsibility to secure, within their abilities and financial capacities the conditions of living necessary for the child’s development. Again there is the responsibility of the State: take approprite measures to assist parents (or others responsible for the child)  to implement this right and provide when necessary material assistance and support, particularly with regard to nutrition, clothing and housing.

Finally article 5 recognizes the responsibility of parents for the implementation of the rights of the child by stating that States parties shall respect the responsibilities, rights and duties of parents ( or others where applicable) to provide the child with appropriate direction and guidance in the exercise by the child of the rights recognized in the UNCRC, in a manner consistent with the evolving capacities of the child. This means that parents shall support the child in the realization of her or his rights allowing the child to engage in a progressive way in the exercise  of her or his rights and make independent decisions in that regard.

In conclusion: when discussing and promoting the implementation of the rights of the child be fully aware of the important role and responsibilities of parents and children themselves.

3.b. Role and responsibilities of the State.

The core obligation of a state party to the UNCRC is to respect, protect and fulfil all the rights enshrined in this international human rights treaty. The obligation to respect appears an many articles of the UNCRC ( e.g. art. 2, 5, 8. 9. 14) and has two aspects: 1. The (negative) obligation to refrain from any unlawful interference and not to condone any infringement of the right concerned; 2 The (positive) obligation to support the exercise of the right. These two obligation also apply to all rights which the State party has to recognize ( e.g. art. 24, 25, 26, 27, 28 and 32).  The obligation to protect (e.g. art. 19, 32 , 33, 34, 36) means interalia that the State should take all feasible measures to prevent the infringement of the right not to be subject to negative actions mentioned in the article concerned and to take the necessary measures to provide child victims of infringements  with access to remedies for redress and  with support for full recovery and resocialisation. The obligation to fulfil is relevant  for all articles of the UNCRC and requires that the State takes all kinds of positive actions to facilitate, promote and provide for the enjoyment of children’s rights. With these core obligations in mind the State can find more specific information about what is expected in terms of actions or measures which should be taken for the implementation of the rights.

But to focus on the implementation process per article is a piece meal approach that results in fragmentised and/or isolated results. Articel 4 UNCRC contains in very  general terms the obligations of the State party: Undertake all appropriate legislative. administrative and other measures for the implementation of the rights recognized in the UNCRC and specifies for the economic, social and cultural rights that these measures should be taken  to the maximum extent of the available resources, and when needed in the framework of international co-operation.

On the basis of this article the CRC Committee has developed a set of general measures of implementation which are elaborated in General Comment No. 5.[12]  General measures of implementation are meant to create an infrastructure or system for an effective and consistent  implementation of the rights of the child. The key measures to achieve that solid infrastructure are:

-         Develop an implement a comprehensive national strategy  or national plan of action for the implementation of the rights of the child. This plan should contain proposals for legislative measures, for allocation of resources and other matters briefly mentioned hereafter. It may also present sectoral plans with measures to addres  e.g. violence against children, sexual abuse and sexual exploitation of children, economic exploitation of children (child labour), trafficking of children and juvenile justice. For the implementation and coordination of all the actions of the strategy many countries have establshed a National committee which also should be charged with the systematic evaluation of the results of the measures taken and adjust the palns when necessary.This activity is known as the self-monitoring by the State of the implementation of CRC.

-         Legislative measures to ensure ful compliance with the UNCRC. This can  be done in different ways., e.g. by amending existing laws or introducing new laws. The report of States parties submitted to the CRC Committee show a wealth of these legislative measures. However, information about the implementation and impact of these legislative measures is often missing. There are many other legislative measures not primarily meant for the implementation of the UNCRC but which may have a negative effect of the enjoyment of children’s rights. It is therefore important that explanatory memoranda to bills changing existing  laws or introducing new ones have a section containing the assessment of the impact the new legislative measures may have on the rights of the child.

-         Allocation of human and financial resources for the implementation of the rights of the child should be clearly identified and visible in the national budget and be  monitored in particular in its relation to the comprehensive national strategy. In this context an observation on the second part of article 4: take measures to implement economic, social and cultural rights to the maximum extent possible of the available resources. This rule introduces , at least implicitly, the concept of progressive realization of these rights which is also recognized in art. 24 para. 4 on the rights to health and in art.28 on the right to education. The UNCRC does not expect that states perform miracles.  However the CRC Committee joins the Committee on  Economic, Social and Cultural rights in asserting: “  even where  the available resources are demonstrably inadequate the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances”.[13]

-         Establishment of an independent National human rights institution with a special unit for monitoring the implementation of the UNCRC or an independent children’s ombudsperson or a children’s rights commissioner. Such entity should promote the righs of the child in various ways and with the participation of children. It also should have the power to receive and investigate complaints on violations of the rights of the child. Further information on the functions and possible activities of these entities can be found in General Comment No. 2 of the CRC Committee.[14]

-         Establish a practice of systematic collection and analysis of statistical data relevant to the implementation of the UNCRC.[15] It is one of the major challenges for the State parties. Many of them cannot produce even basic statistical data meaning inter alia that many measures are not based on solid information on the nature and the scope of the problem they are supposed to address  and  that the effect of their implementation can not be measured.

-         Undertake  or support ongoing training and capacity building of all professionals and volunteers working for or with children in order to promote and strengthen the implementation of the rights of the child.

-         Develop and strengthen, when needed, the co-operation with civil society organisations throughout the process of implementing the rights of the child. Consider and treat them as partners , not as enemies, and respect each others’different role and responsibilities, for instance the State should involve NGO’s in the process of reporting on the implementation of the CRC. NGO’s can provide the State with information about their experiences with (the lack of) implementation of children’s rights. But they should refrain from de facto writing (parts of  the) report . The UNCRC is clear: the responsibility for reporting on the implementation of the UNCRC lies with the State.

-         Equally important: develop a practice of involving children in the implementation process, e.g. by consulting with them about legislative and other measures the State considers to introduce and celebrate with them the international day of the rights of the child every year on 20 November.

These measures are necessary to build a solid foundation for the State ’s efforts to meet its obligations to respect, protect and fulfil the rights of the child. In all these measures the State should be aware of the importance of applying the general principles of the UNCRC.

In addition to these general observations some more specific remarks relevant to the role of the non-state actors which I will present hereafter:

-  in many countries health care , education and social and protective services are provided by the private sector, in particular NGO’s. In 2002 the CRC Committee devoted its Day of General Discussion (DoGD) to the role of private service providers  in implementing children’s rights.[16]  In its recommendations from  this DoGD the Committee reminded States parties that their  legal obligation to respect and ensure the rights of the child includes the obligation to ensure that all non-State actors which provide services to children operate in accordance with the provisions of the UNCRC. Allowing the private sector ( for profit or non-profit) to provide all kinds of services or contracting them for that  purpose does not in any way lessen the obligation of the State to ensure for all children in its jurisdiction the full recognition and realization of the rights in the UNCRC. Thus the Committee recommends the State parties, when contracting out services to a private provider,  to undertake a comprehensive assessment of the quality of this provider and enter into detailed agreements with such provider which includes the requirement of independent monitoring of the services contracted out and implies a regular reporting of the results.

- the business sector also plays an important role in the world of children.

 Its activities can contribute to and/or support the implementation of the rights of the child, e.g. via corporate foundations funding various child rights programmes or projects. But it can also have a negative impact on the enjoyment of the rights of children e.g. via pollution of the environment or economic or other forms of exploitation. The (possible) role of the business sector in the field of children’s rights and the obligation of the State to ensure that this sector operates in full compliance with the UNCRC has been addressed in  General Comment No. 16 (2013) on the  obligation of the State regarding the impact of the  business sector on children’s rights.[17] The observations and recommendations in this General Comment are meant to be a guidance for the States parties on how they should:

1.      Ensure that the activities and operations of the business enterprises do not adversely impact on children’s rights;
2.      Create an enabling and supportive environment for business enterprises to respect children’s rights, including across any business relationships linked to their operations, products or services and across their global operations:
3.       Ensure access to effective remedies for children whose rights have  been infringed by a business enterprise acting as private party or as a state agent.

3.c. The role and responsibilities of non-state actors.

There  are many other actors than the State which have  ( or should have) a role and responsibility in the implementation of children’s rights. The UNCRC does contain a provision dealing with these actors while making a difference between United Nations specialized agencies and other organs  which are entitled to be represented  at the consideration of the implementation of provisions of the UNCRC that fall within their mandate (art. 44, (a))> the meaning of this provision is not clear. The consideration mentioned takes place in a public session of the CRC Committee and can be attended by every body.   Furthermore the CRC Committe may invite these agencies and organs and “other competent bodies” to provide expert advice on the implementation of the UNCRC (art. 44 (a). The history of the drafting of the UN CRC show that the term “competent bodies” was meant for all civil society organisations ( NGO’s and others). However, the developments since the UNCRC entered into force and the CRC Committee started its monitoring activities make these provisions quite obsolete and irrelevant.  The practice of implementing children’s rights at the national and international level show that not only UN specialized agencies, in particular UNICEF, but also civil society organizations have assumed a recognized and valued role and responsibilities in the process of implementation of children’s rights. It is appropriate to state that the UN CRC has the greatest constituency committed to promoting and supporting its implementation. In this context I cannot elaborate in details with the role and responsiblities  and limit myself to some observations regarding UNICEF, NGO’s and the business sector.

An introductory remark: The CRC Committee recognizes that responsibilities to respect and ensure the rights of children extend beyond the State, including individuals, parents, legal guardians and other non-state actors  and refers to the view of the Committee on Economic, Social and Cultural Rights:

“While only Staes are parties to the Covenant and are thus ultimately accountable for compliance with it, all members of society – indiduals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations as well as the private business sector- have responsibilities regarding the realization of the right to health, State parties should therefore provide an environment which facilitates the discharge of these responsibilities”.[18]

This view regarding the responsibilities of non-state actors does of course not only apply to the right to health but to all rights in the UNCRC.

 

  

1.UNICEF.

Unicef is a leading humanitarian and development agency working globally for the rights of every child. It has been and is engaged in the promotion and implementation of the rights of the child in 190 countries around the World.

In around 150 countries in the developing parts of the world UNICEF is active in supporting the government and NGO’s in all areas of the implementation of children’s rights. For instance it supports awareness raising and training programmes, assists governments in their efforts to bring their laws in compliance with the UNCRC, contributes to the development and implementation of health programmes and the enrolment in schools projects together with actions to make schools child friendly and to  the improvement of the child protection system. UNICEF is operating in partnership with civil society organsations as much as possible in a broad range of child-related issues. Together they work with e.g. communities to engage in advocacy and policy reform and to promote child participation.

UNICEF also works  closely with Multi-lateral corporations, national companies and small- and medium-sized businesses on issues like policy and advocay for child rights, promoting corporate responsibility, training and capacity building and humanitarian relief and support of emergency appeals.

UNICEF also contributes to the monitoring of the implementation of the UNCRC by submitting country specific reports to the CRC Committee.

In other words the role of UNICEF in the worldwide efforts to implement the UNCRC has been and still is very critical. It is fair to say that UNICEF’s activities have been and continue to be an invaluable contribution to the progressive realization of the rights of the child.

2. Civil society organisations (CSO’S or NGO’s).

NGO’s were actively participating in the drafting process of the UNCRC through the NGO Ad-Hoc Group established in 1983. They submitted many draft articles to the Open-ended Working Group for consideration and thus contributed significantly to the content of the UNCRC. This involvement continued after the UNCRC entered into force with an active participation in its implementation. In may countries new NGO’s were established for the promotion and implementation of children’s rights and existing NGO’s were and are increasingly using the rights of the child as an inspiration and a guiding and driving force in their activities.

The CRC Committee has engaged NGO’s in its activities right from the beginning based on its view that they should play an important role at the national level in the implementation of the UNCRC within their respective mandates and assume responsibilities in that regard. In the country specific Concluding Observations the Committee systematically recommends States parties to work closely with NGO’s, involve them in legislation and policy development and implementation and to facilitate the work of NGO’s .

The Committee also invites and encourages NGO’s to submit reports in the context of its monitoring activities. Before meeting with a delegation of a State party for the examination of its report the Committee meets with NGO’s ,  UNICEF and others  to discuss their reports. For almost all countries the Committee receives next to the State party report a report of NGO’s, usually a comprehensive report of an alliance of NGO’’s.

In a report prepared for UNICEF in 2010 Nevena Vucovic concluded inter alia:

NGO’s have played a significant role in law reform, training, education. Research and monitoring. Civil society organizations have had a growing influence in State policies, including budgets, as wel as in the child rights coordination activities of governments.

The political environment for NGO’s has improved in many countries. Cooperation with governments and parliaments has generally improved, although exceptions remain. In many settings. Civil society actions in support of  human and children’s rights are under threat.

Civil society ’s contribution to implementation of the CRC is also reflected in broader societal participation in promoting and protecting children’s rights, widened understanding of child rights and in respect for civil society organizations. This is particularly evident in the growing participation of children; it is no longer just adults who advocate and work on children’s behalf. Children are more than advocates: they are agents for change, largely due to civil society efforts.

These conclusions confirm the important role of NGO’s  but they will continue to face old and new challenges such as the chronic lack of sufficient  human and financial resources, the decentralization and privatization of  services including those for children and the risk that these development lead  States to abdicate their responsibility for children, poverty and armed  conflicts, and prejudices and harmful practices deeply rooted in local cultures and norms which challenge the implementation of the rights of the child.[19]

3. The business sector.

The role and responsibilities of the business sector is increasingly an issue of  attention and discussion in the field of human rights, including the  human rights of children.

In its General Comment No 16 (2013) The CRC Committee observed (para 8): “There is no international binding instrument on the business sector’s responsibilities vis-a-vis human rights, However, the Committee recognizes 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. Therefore, all business must meet their responsibilities regarding children’s rights and States must ensure that they do so.” And: “The Committee acknowledges that voluntary actions of corporate responsibility by business enterprises, such as social investments, advocacy and public policy engagement, voluntary codes of conduct, philantropy and other collective actions can advance children’s rights”.

This acknowledgement comes with a warning (para 25): “States are not relieved of their obligations  under the Convention and the Optional Protocols thereto when their functions are delegated or outsourced to a private business or non-profit organization”.

The Committee provides detailed recommendations  on how the States should promote and ensure respect for children’s rights in the activities of business enterprises. For instance: when business consults communities that may be affected by a potential business project it is critical to also seek the views of children and consider them in decisions that affect them.

UNICEF together with The Global Compact and Save the Children has developed 10 Business principles that should guide the business sector in meeting their  responsibilities regarding the rights of the child.[20]

Among these Principles are e.g.:

2.      Contribute towards the elimination of child labour, including in all business activities and business relationships.

Example of good practice: A global furnishing company  has developed a comprehensive  approach to preventing child labour in its supply chain. The action plan emphasizes that responses  to identified instances of child labour should not merely move the children to another  workplace but should enable more viable and sustainable alternatives. Since 2000 the company  has  developed long term partnerships with child rights organization to prevent and eliminate child labour in rural communities, supporting large-scale programmes interalia around school enrolment drives.

4.      Ensure the protection and safety of children in all business activities and facilities.

Example of good practice:  A global hospitality and travel company has implemented, in line with the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism, a comprehensive strategy to combat and raise awareness on this form of sexual exploitation of children. Part of this strategy: specialized child protection training has been integrated into employee training programmes. Travellers are provided  with a dedicated hotline number to report any instances of sexual exploitation or suspicious behaviour.

Also the other Principles e.g. nr 6: Use marketing and advertising that respect and support children’s rights are elaborated and illustrated with an example of good practice.

In Conclusion: The primary responsibility for the implementation of the UNCRC lies with the States parties but the developments since the UNCRC entered into force show that the State is not the only one with responsibilities for this implementation. There are many more and other actors in the field of children’s rights which bear different responsibilities for their implementation. There is a wealth of information on how these responsibilities can be met and of many good examples of the performances of the different actors, parents and children, UN agencies, in particular UNICEF, civil society organizations and the business sector. There  is still along way to go in our efforts to the full realization of the rights of the child. But the large and committed body of different actors justifies the confidence that we are on the right track and that we move progressively to the ultimate goal that all children will fully enjoy their rights.

[1] General Assembly Resolution 1386 (XIV) of 20 November 1959.

[2] For detailed information on this drafting process see S. Detrick (ed.) The United Nations Convention on the Rights of the Child. A guide to the “Travaux Préparatoires” Dordrecht/Boston: M. Nijhoff Publishers 1992 and S. Ek, Legislative History of the Convention on the Rights of the Child Volume I and II. New York and Geneva: United Nations 2007.

[3] The OPCP allows children to file a complaint on a violation of their rights to the CRC Committee ( after having exhausted all national remedies), This Optional Protocol provides this procedure for children in Statest that have ratified it. Unfortunetely Taiwan can not ratified it due to the the fact that it is not a member state of the UN. Its parliament could approve the Protocol but that does not make it possible for children in Taiwan to file a complaint with theCRC Committee. 

[4] See for more information e.g. Nevena  Vucovic Sahovic, Jaap E. Doek, Jean Zermatten, The Rights of the Child in International Law. Rights of the Child in a Nutshell and in Context: all about Children’s Rights. Berne: Stampfli Publishers 2012.w

[5] 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. UN Doc. CRC/C/58/Rev.3, 3 march 2015.

[6] General Comment No 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1). UN Doc. CRC/C/GC/14, 29 May 2013.

[7] General Comment No 7, Implementing child rights in early childhood, UN Doc. CRC/C/GC/7/Rev.1, 20 September 2006.

[8] See Jaap E. Doek, Article 6 CRC and the Views of the CRC Committee, Stellenbosch Law Review Volume 26 (2015) No 2, p. 254 -271.

[9] Many reports, books and articles have been published on child participation.  Ssee for instance Tali Gal & Benedetta Faedi Duramy (eds.), International Perspectives and Empirical Findings on Child Participation. From social exclusion to child-inclusive policies.Oxford New York: Oxford University Press 2015

[10] General Comment No 12  on The right of the child to be heard, UN Doc. CRC/C/GC/12, 1 july 2009.

[11] It should be noted that article 12 does not link the age and maturity of the child to the capacity to form her or hsi own views but to the matter of giving due weight to the views of the child. The weight should be given in accordance withe age and maturity of the child. See also para 30 GC No 12 where the Committee links age and maturity to the capacity to form views without any explanation.

[12] General Comment No. 5 General measures of implementation of the Convention on the Rights of the Child (art. 4, 42 and 44, para 6). UN Doc. CRC/GC/2003/5, 27 November 2003.

[13] See General Comment No 5 para 8 and 9.

[14] General Comment No 2  on the role of independent national human rights institutions in the promotion and protection of the rights of the child. UN Doc. CRC/GC/2002/2, 15 November 2002.

[15] In an Annex to the Treaty-specific guidelines regarding the form and content of periodic reports ( UN Doc. CRC/C/58/Rev.3, 3 March 2015) the CRC Committee specifies per cluster the statistical information and data  which should be include in teh periodic reports.

[16] Theme of the 2002 DoGD The Private Sector as Service Providers and its Role in Implementing Child Rights; see for the report and recommendations of this DoGD the website of the CRC Committee.

[17]  General Comment No 16 (2013) on State obligations reagrding the impact  of the business sector on children’s roghts. UN Doc.CRC/C/GC/16, 17 April 2013.

[18] General Comment No 14 of the Committee on Economic, Social and Cultural Rights on the right to hihest attainable standard of health para 42 quoted in the report of the CRC Committee on the DoGD  2002 on The Private Sector as Service Provider and the Role in Implementing Child Rights, p. 9

[19] Nevena Vuckovic Sahovic, The role of civil society in implementing the general measures of the Convention on the Rights of the Child. Florence: Innocenti Working Paper (IWP 2010-18) June 2010.

[20] Children’s Rights and Business Principles