investing in children’s rights...investing in children’s rights [considerations on the scope of...

Centro de Políticas Públicas y Derechos Humanos

Investing in Children’s RightsConsiderations on the scope ofArticle 4 of the Convention onthe Rights of the Child regardingbudgetary aspects aimed atguaranteeing children’s rights

Investing in Children’s Rights

[Considerations on the scope of Article 4 of the Convention on the Rights of the Child regarding

budgetary aspects aimed at guaranteeing children’s rights]

Javier Mujica Petit


Centre for Public Policies and Human Rights – Peru EQUIDAD

Investing in Children’s RightsConsiderations on the scope of Article 4 of the Convention on the Rights of the Child regarding budgetary aspects aimed at guaranteeing children’s rights

Author:Javier Mujica Petit

Assistance:Jessica Maeda

Design and Layout:Nils Julian Santos Quispe

Published by:Centre for Public Policies and Human Rights – Peru EQUIDAD Macroeconomics, Budget, and Human Rights ProgrammeCalle Mariscal Miller 2182, Interior 203, Lince, Lima 14 – PeruPhone number: (511) 4722536

ISBN: 978-612-46623-0-0First edition: January, 2014Legal deposit: Biblioteca Nacional del Perú Nº 2014-00549Printed in: Taller Gráfico David Mori CarranzaJr. Callao 321 Int. 33 - LimaPrint run: 500 copiesJanuary 2014

* This material has been financed entirely by SIDA – Swedish International Development Cooperation Agency. SIDA does not necessarily share the views expressed in this publication.Liability of the contents is exclusive of the authors.

We would like to thank Save the Children for their technical and financial support in the development of this document.

TABLE OF CONTENTSIntroduction

Part 1

What are human rights?

What obligations do States and authorities have on issues of human rights?

What does the obligation of adopting measures to a maximum extent in order to guarantee the realisation of rights entail?

What is the budgetary dimension that should be considered as part of the obligations established in Article 4 of the Convention on the Rights of the Child?

Why do we need a General Comment on Article 4 of the Convention regarding specifically with budgetary measures in order to guarantee children’s rights?

Part 2 Further Information

What is the Convention on the Rights of the Child (CRC)?

What are the Optional Protocols to the Convention on the Rights of the Child?

What is the Committee on the Rights of the Child and what is its role?

What are the General Comments of the Committee on the Rights of the Child?

What is the legal value and the usefulness of General Comments?

Relevant literature

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A General Comment for Article 4 of the Convention on the Rights of the Child

INTRODUCTION

The Centre for Public Policies and Human Rights – Peru EQUIDAD is an institution focusing on rights in different countries of the Latin American region.

We have been currently working on a document called “Contributions from Latin America to the General Comment of Article 4 of the Convention on the Rights of the Child”, along with the Regional Technical Group for Latin America and Save the Children. With this document, we will deliver contributions, comments and/or suggestions to the General Comment the Committee on the Rights of the Child is expected to prepare for States parties of the Convention on the Rights of Child to allocate their Budget available resources to the maximum extent in order to realise children’s and adolescents’ rights, according to the obligations established in Article 4 of the CRC, namely:

“States parties shall undertake all appropriate legislative, administrative,

and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights,

States parties shall undertake such measures to the maximum extent of their available resources and, where needed,

within the framework of international co-operation.”

In order to do this, and to aid the preparation of these contributions, this document introduces basic concepts on human rights and on the duties States parties have regarding these rights. Moreover, it summarises the progress regarding a future General Comment of the Committee in relation with Article 4 of the Convention, and it advances some criteria on the budgetary dimension that needs to be taken into account as a relevant part of the obligations in said Article. It further explains what the Committee’s General Comments are, which ones have already been issued, and how they are linked with the CRC. Finally, it informs on the Convention’s Optional Protocols and what are the roles of the Committee to promote and protect children’s and adolescents’ rights.

Thus, EQUIDAD is contributing to the dissemination of certain aspects which have not been properly publicized on the promotion of public policies on human rights issues, and particularly provides resources to cannel our contributions to the Committee on the rights of the Child. We hope that this initiative will favour and improve the situation of children and adolescents in our region.

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PART 1

What are humanrights?

We understand human rights as those “prerogatives which, according to International Law, every individual has before any State body in order to preserve their dignity as human beings, and which purpose is to exclude State interference on specific areas of individual life, or to ensure the provision of certain services by the State in order to fulfill their basic needs, and which reflect the fundamental requirements any human being may formulate to the society they belong to”.1

Since they have a direct impact on our quality of life, these rights are considered essential for a decent and dignifying life; thus, defending and promoting them is fundamental for all individuals.

Every human right is based on the respect for the dignity and intrinsic value of every human

being as individuals and also as members of society as a whole. They are based on ethical principles which are usually contained in legislations and constitutions in the majority of the countries in the region, and include those features of life in the civil, political, economic, social, cultural, or environmental levels that everyone is entitled to, regardless of age, gender, ethnicity, religion, background or any other condition.2

Human rights are innate or inherent, inalienable and non-transferrable, universal, indivisible, interdependent, inviolable, and fully claimable.

They are considered universal and inalienable because all human beings around the world have these same rights, and because it is understood that no one can voluntarily give up what is inherent, nor can it be usurped by other people. They are also considered indivisible because being all human rights inherent to every human being’s dignity, they

1 FAÚNDEZ, Héctor. El Sistema Interamericano de Protección de los Derechos Humanos. Ed. Jurídica venezolana. Estudios Jurídicos, 1996, p. 21.

2 MUJICA; Javier. “Para ser mejores, para hacerlo mejor”. Introductory manual to the programming of public policies with a human rights approach. Centro de Políticas Públicas y Derechos Humanos - Perú EQUIDAD, 2010, p. 29.

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are acknowledged by the same rank and condition, and cannot be classified or ranked.

They are considered interdependent and interrelated because the realisation of one right usually depends —partially or completely— on the realisation of the others.

Human rights should be respected under the principles of equality and non-discrimination, by which in virtue of the inherent dignity of all human beings, not only every person should be considered equals as human beings but also all of them should enjoy their human rights with no discrimination of any kind, regardless of race, color, gender, ethnic group, age, language, religion, political option or other, national or social background, disability, properties, birth, sexual option or any other condition.

What obligations do States and authorities have on issues of human rights?

All human rights share common obligations and these seek, at least, to secure the basic conditions under which a person can live with dignity. These common obligations have at least an obligation of respect, an obligation of protection and an obligation of satisfaction.

The obligation of respecting human rights demands that States should refrain from interfering with the enjoyment of those rights. The obligation to protect demands that States should prevent rights violations by third parties —meaning individuals, groups, businesses and other organisations, as well as those acting on their behalf. This obligation entails, among other things, the adoption of legislative measures and other means necessary and effective to prevent, for instance, that third parties deny access under the same conditions to the different components of the respective right, or to impose conditions or provide benefits which are inconsistent with it.

Any person or group who has been a victim of a human right violation should be guaranteed legal resources, or any other kind, which are timely and effective, and which should allow them access to a proper compensation —consisting in restitution, compensation, fulfillment, and guarantees that the facts leading to the violation of rights will not happen again.

Every person should also enjoy a formal right to an effective appeal before an organ of jurisdiction whenever their human rights are violated; and this appeal should only become effective if the national authorities have powers to grant a redress to the victims of human rights violations.

There are several types of redress possible according to the severity and the particular circumstances of the case, such as the full restitution, compensation, rehabilitation, excuses and other sorts of amends, general guarantees of no-reiteration, and exceptionally, punishment to the authors of rights violations.

The right to an effective appeal does not necessarily entail a judicial process. States have an obligation of guaranteeing that every person requesting an appeal be heard by the judicial, administrative or legislative competent authority, or any other competent authority contemplated in the legal system of the State in order to determine their right. Moreover, States should verify that whenever they grant a redress, the competent authorities should make it claimable.

The obligation of fulfilling human rights demands that States adopt appropriate legislative, administrative, budget, judicial, and other kinds of measures, as well as additional measures in order to guarantee and facilitate the realisation of rights. This obligation can be divided into other obligations: facilitating, promoting and guaranteeing.

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The obligation of facilitating demands that States should adopt positive measures allowing and assisting people and communities to exercise their rights. According to this obligation, and among other things, States should: acknowledge sufficiently all rights in the political and judicial order, preferably through the application of laws; adopt strategies and plans of action aiming to guarantee the exercise of rights; and guarantee that the means and/or benefits from these rights are appropriate, accessible, and affordable for everyone.

The obligation of promoting demands that States adopt measures to guarantee appropriate education and awareness regarding the exercise of rights, especially in rural and disadvantaged areas or among linguistic or other types of minorities.

States have an obligation of guaranteeing (in other words, make effective) rights in cases of people who —due to reasons beyond their control— are not able to exercise rights by themselves with the means they have at hand. In order to tackle with this, States should organise all the government system, and in general all structures through which the exercise of political power is exercised, so they can guarantee the free and full legal exercise of human rights.

States also have an obligation of non-discrimination by which —in addition to guaranteeing an equal and non-discriminatory treatment to all people regarding their rights— they should adopt promotion and special protection measures, including different legislative and political measures in favour of those social groups that are vulnerable and/or have been historically undefended.

They also have the duty of adopting immediate measures that should become effective in relatively brief periods from the moment they ratify the international instruments regarding human rights. And such measures should consist on concrete, deliberate facts aiming clearly to the fulfillment of all rights. States should explain their inactivity, delay or deviation in the fulfillment of those objectives. Among these obligations is the duty to produce and disseminate information, facilitating citizen control of public policies in any of their areas, thus contributing to the government supervision of the degree of effectiveness and of the barriers to the fulfillment of human rights.

Led by these criteria, most of the international human rights regulations clearly set out the duty States have to adopt measures in order to make rights recognised. Thus, for

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instance, Article 4 of the UN Convention on the Rights of Persons with Disabilities, states the commitment of States to guarantee and promote the full exercise of all human rights and fundamental freedoms of people with disabilities, regardless of the causes of disability, and to that end, they should commit, among other things, to “adopt all legislative, administrative and other measures for the implementation” of the rights recognized in the Convention.

Article 3 of the Convention on the Elimination of all Forms of Discrimination against Women states that “States parties shall take in all fields, in particular the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men”. And paragraph 2 of Article 2 of the International Covenant on Civil and Political Rights states that States parties are committed to “to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”

Also, paragraph 1 of Article 2 of the International Covenant on Economic, Social and Cultural Rights states that States parties make a commitment to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

Alluding to the duty established in Article 2 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee has noted that: “[…]article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article.” And it has further recognised, after noting that “the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient […],that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction [thus] this aspect calls for specific activities by the States parties to enable individuals to enjoy their rights […]”.3

The prescription of paragraph 1 of Article 2 of the International Covenant on Economic, Social and Cultural Rights (1966, the year the Covenant was adopted) is quite similar to the one Article 4 of the Convention on the Rights of the Child would use, in 1989, when it stated that “States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”

As we can see, state obligations regarding internationally recognised human rights are expressed in different ways according to each treaty. Some of them, like the Covenant on Economic, Social and Cultural Rights or the Convention on the Rights of the Child, stipulate that States should adopt measures “to the maximum extent of their

3 UN Committee on Human Rights, General Comment N° 3, Implementation at national level of the International Covenant on Civil and Political Rights (Article 2), July 29, 1981, CCPR/C/13, paragraphs 1 and 2.

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available resources” in order to achieve the full realisation of rights, whilst others specify these obligations in a different way, or include concrete measures that States should adopt, as the approval of legislation or the promotion of these rights in public policies.

With the aim of clarifying the contents of these State obligations, several organs supervising the fulfillment of international treaties, have elaborated what are known as General Comments, which focus on conveying the experience acquired by these committees as a result of the analysis of the reports States parties submit periodically. Their purpose is to facilitate and promote the subsequent application of the treaties, identify weak points in the reports and/or encourage their activities regarding the progressive and efficient achievement of the rights contained in such treaties.

A renowned example is General Comment Nº 3, approved by the UN Committee on Economic, Social and Cultural Rights in 1990, clarifying “The nature of States parties’ obligations (paragraph 1 of Article 2)”,4 part of which is summarised in the section addressed to synthesizing the obligations of the States regarding human rights.

In General Comment Nº 3, the Committee noted that “is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result.”5

In the following section we will address in further detail some of the criteria established by the Committee on Economic, Social and Cultural Rights (CESCR).

What does the obligation of adopting measures to a maximum extent in order to guarantee the realisation of rights entail?

The International Covenant on Economic, Social and Cultural Rights commits States “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

The “progressive realisation” entails the immediate obligation of taking specific measures towards the full realisation of economic, social and cultural rights included in the Covenant. Some of these measures should be adopted immediately, regardless of the level of resources available; for example: guaranteeing non-discrimination in the enjoyment of rights or repelling any measures that may entail an obstacle for the exercise of rights.

The obligation of adopting measures to the maximum extent of available resources is an obligation of behaviour and not of results. They should be satisfied immediately and not progressively, because only the result is progressive: the full efficiency of these rights. The term “available resources” does not refer only to financial resources but also human and organizational resources available, fields were not only the numbers but also the quality should be considered.

States have an obligation of establishing a set of priorities and also a coordination organ between State agencies and the rights holders. They also have to guarantee the

4 Committee on Economic, Social and Cultural Rights, General Comment Nº 3, The nature of States parties’ obligations (para. 1 of Article 2 of the Pact). HRI/GEN/1/Rev.5. Also at: http://www2.fices.unsl.edu.ar/~prosoc/material/14bOG3.pdf

5 UN Human Rights Committee, General Comment N° 3, para. 1.

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existence of mechanisms for the regular monitoring of their policies, in order to eradicate inefficiency and corruption in the use of available resources, so these may be appropriately applied.

Likewise, States have a fundamental obligation of guaranteeing a minimum satisfaction of essential levels of each of the rights proclaimed in international treaties.

When these minimum obligations are not fulfilled due to a lack of resources, States have to prove they have done everything in their power to use all resources at their disposal in an effort to satisfy those minimum obligations as priorities. When resources are proven to be insufficient, the State is compelled to secure the maximum enjoyment of relevant rights in the current circumstances.

In countries with a severe limitation of resources, States have a duty to seek international co-operation and assistance: their inactivity cannot be justified on a basis of their dependency on foreign support; on the contrary, they have a responsibility to prove they have done everything in their power, to the best of their abilities, in order to guarantee the maximum enjoyment of the corresponding

rights under the prevailing circumstances, especially for the most disadvantaged and marginalised groups.6

Since the State has a duty to head toward the full realisation of rights, its inactivity, unreasonable delay and the adoption of measures that imply a set-back in the scope and protection of such rights violate the idea of progressive realisation. In virtue of this obligation, the State is forbidden to adopt policies or measures and to sanction legal regulations which, without an adequate justification, aggravate the situation of the rights the people were enjoying at the moment the law recognising the right or good was adopted, subsequent to every “progressive” advance.

So long as the States are compelled to improving the situation of human rights, they have simultaneously assumed the prohibition of reducing the protection levels of the current rights or revoking existing rights without a sufficient justification. As a consequence, a first stage for the evaluation of the progressive realisation in the implementation of rights consists of comparing the extent of the ownership and contents of the rights and the guarantees granted through the new normative measures with the situation of previous acknowledgment, extent and scope. The deterioration of these factors, with no adequate justification by the State, implies a regression, unauthorised by international law.

In General Comment Nº 5, regarding the rights of people with disabilities, the Committee on Economic, Social and Cultural Rights noted that “The obligation of States parties to the Covenant to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative

6 In General Comment Nº 12 relative to the right adequate food (Art. 11 of the International Covenant on Economic, Social and Cultural Rights), the Committee noted that “Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access,

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impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.”7

When determining what actions or omissions constitute a violation of a human right, it is important to establish a distinction between the inability and the reluctance of a State to comply with the obligations regarding the corresponding right.

Any State that is not willing to use its available resources to the maximum extent in order to realise a right is violating the obligations it has acquired by virtue of the pact or treaty protecting such right.

If limitation of resources prevents the full compliance of the obligations of a State imposed by those regulations, the State will have to prove it has done everything in its power to use all resources available in order to comply with the obligations set by these regulations as a matter of priority.

Violations to human rights can occur through acts of perpetration, the direct action of the States or other bodies which are not sufficiently regulated by these. For example, they may consist of the adoption of counterproductive measures that are incompatible with the basic obligations abovementioned, or the revocation of formal suspension of the necessary legislation for the continuous enjoyment of the right.

They can also occur through acts of omission, such as not adopting appropriate measures to guarantee the full enjoyment of the right, lacking a national policy on the issue or not complying with the corresponding laws.

In order to comply with their obligations, each State has a discretionary margin to determine what measures are most convenient to cope with specific circumstances. Nevertheless, States are required to adopt the necessary measures for every person to enjoy a right as soon as possible, supervising that the national measures oriented to the enjoyment of the rights do not block the enjoyment of other human rights.

States should examine the existing legislation, strategies and public policies in order to verify they are compatible with the obligations related to each right, and should repeal, amend or change those considered to be incoherent with the obligations arising from international laws that recognise them.

The duty to adopt measures clearly imposes the States to adopt a strategy or a national plan of action in order to guarantee the exercise of each right —and such strategy should: a) be based on the regulations and principles of human rights; b) cover all aspects of the right and the obligations these generate in the States; c) clearly define objectives; d) set objectives, goals and deadlines for their achievement; e) formulate appropriate policies, with corresponding levels of reference and indicators.

The commitment to “adopt measures (...) by all appropriate means, in particular the adoption of legislative measures”, does not demand nor rule out that any specific type of government or economic system can be used as a means for the adoption of

the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from Article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its General Comment No. 3, paragraph 10. A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.” 1999, HRI/GEN/1/ para. 17.

7 CESCR, General Comment Nº 5 (1999), HRI/GEN/1/Rev.5, para. 9.

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the corresponding measures, with the only exception that all human rights be respected accordingly.

When formulating and applying the national strategies regarding each right, States should use the technical assistance and cooperation of the UN specialised organisms.

When formulating and executing the strategies and national plans of action regarding each right, the principles of non-discrimination, gender equality and people’s participation, among others, should be respected.

The right of individuals and groups to participate in decision-making processes that may affect the exercise of any of their rights should be a part of every policy, programme or strategy related to them.

The State should create a legal framework where civil society organisations can play a role of independent supervisors. In particular, it should adopt the necessary measures to realise a series of inter-related rights, such as the rights to information and freedom of speech and freedom of association, without which independent supervision would not be possible.

The strategies and sectorial, national, regional and/or local plans of action relative to each right also have to be based on the principles of accountability, transparency and independence of the Justice Authority, because good governance is essential for the effective exercise of all human rights.

Likewise, States are compelled —with the purpose of creating a favourable climate for the exercise of rights— to adopt appropriate measures in order to encourage the business sector and the civil society to know and consider the importance of human rights when carrying out their activities.

When the responsibility of making effective a certain right is delegated to regional or local authorities, the central authority of the State at national level remains responsible for the

fulfillment of their obligations, by virtue of international laws recognising human rights and, thus, should guarantee those authorities have enough resources available in order to secure the full and effective exercise of corresponding rights. States should also guarantee that said authorities do not deny access to those rights on grounds of direct or indirect discrimination.

Budgetary measures are, naturally, essential to secure the effectiveness of rights and, as we will soon see, the UN Committee on Economic, Social and Cultural Rights has referred to these in several occasions.

In General Comment Nº 5, the Committee also noted that “The methods to be used by States parties in seeking to implement their obligations under the Covenant towards persons with disabilities are essentially the same as those available in relation to other obligations (…).They include the need to ascertain, through regular monitoring, the nature and scope of the problems existing within the State; the need to adopt appropriately tailored policies and programmes to respond to the requirements thus identified; the need to legislate where necessary and to eliminate any existing

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discriminatory legislation; and the need to make appropriate budgetary provisions or, where necessary, seek international cooperation and assistance.” 8

A very similar remark was made when in General Comment Nº 6 it addressed the methods that States parties use to fulfill the obligations they have acquired, by virtue of the Pact, regarding older persons, noting that these methods “will be basically the same as those for the fulfilment of other obligations (see General Comment No. 1 (1989)). They include the need to determine the nature and scope of problems within a State through regular monitoring, the need to adopt properly designed policies and programmes to meet requirements, the need to enact legislation when necessary and to eliminate any discriminatory legislation and the need to ensure the relevant budget support or, as appropriate, to request international cooperation.” 9

In General Comment Nº 12, the Committee referred to “The most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State party to another. Every State will have a margin of discretion in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food. This will require the adoption of a national strategy to ensure food and nutrition security for all, based on human rights principles that define the objectives, and the formulation of policies and corresponding benchmarks. It should also identify the resources available to meet the objectives and the most cost-effective way of using them.” 10

In General Comment Nº 13, regarding the right to an education, it stated that “In relation to article 13 (2), States have obligations to respect, protect and fulfil each of the ‘essential features’ (availability, accessibility, acceptability, adaptability) of the right to education. By way of illustration, a State must (…) fulfil (facilitate) the acceptability of education by taking positive measures to ensure that education is culturally appropriate for minorities and indigenous peoples, and of good quality for all; fulfil (provide) the adaptability of education by designing and providing resources for curricula which reflect the contemporary needs of students in a changing world; and fulfil (provide) the availability of education by actively developing a system of schools, including building classrooms, delivering programmes, providing teaching materials, training teachers and paying them domestically competitive salaries.” 11

In General Comment Nº 14, relative to the right to the highest attainable standard of health (Article 12), the Committee emphasized that “The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil contains obligations to facilitate, provide and promote. (…) the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.”12 In determining which actions or omissions amount to a violation of the right to health, the Committee added that “A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource constraints render it

8 Committee on Economic, Social and Cultural Rights, General Comment Nº 5, para. 13.9 Committee on Economic, Social and Cultural Rights, General Comment Nº 6, Economic, social and cultural rights

of older persons, HRI/GEN/1/Rev.5, para. 18.10 Committee on Economic, Social and Cultural Rights, General Comment, Nº 12, para. 21.11 Committee on Economic, Social and Cultural Rights, General Comment Nº 13, Tight to education (Art. 13), 1999,

HRI/GEN/1/Rev.5, para. 50.12 Committee on Economic, Social and Cultural Rights, General Comment Nº 14, Right to health (Art. 12), 2000, HRI/

GEN/1/Rev.5, para. 33.

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impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above.”13

When dealing with the protective measures children need, both from their families and from society and the Government, in accordance with Article 24 of the International Covenant on Civil and Political Rights, the UN Committee on Human Rights recognised that “In most cases, however, the measures to be adopted are not specified in the Covenant and it is for each State to determine them in the light of the protection needs of children in its territory and within its jurisdiction. The Committee notes in this regard that such measures, although intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant, may also be economic, social and cultural. For example, every possible economic and social measure should be taken to reduce infant mortality and to eradicate malnutrition among children and to prevent them from being subjected to acts of violence and cruel and inhuman treatment or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means.” 14

Likewise, it is worth mentioning that General Observation Nº 24 (1999), regarding Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women

– CEDAW, the right for women not to be discriminated against on health issues), the Committee of the CEDAW has stated that “The duty to fulfil rights places an obligation on States parties to take appropriate legislative, judicial, administrative, budgetary, economic and other measures to the maximum extent of their available resources to ensure that women realize their rights to health care.” 15 It also noted that “States parties should allocate adequate budgetary, human and administrative resources to ensure that women’s health receives a share of the overall health budget comparable with that for men’s health, taking into account their different health needs.” 16

Regarding the field of children’s rights, when addressing the purpose of education, the Committee on the Rights of the Child has referred to this issue, noting that “Implementation of comprehensive national plans of action to enhance compliance with article 2917 (1) will require human and financial resources which should be available to the maximum extent possible, in accordance with article 4. Therefore, the Committee considers that resource constraints cannot provide a justification for a State party’s failure to take any, or enough, of the measures that are required.” 18

Therefore, there are multiple and recurring comments that the universal system of supervision for the fulfillment of human rights treaties have formulated in order to emphasize the urgent nature of the obligation

13 Committee on Economic, Social and Cultural Rights, General Comment Nº 14, para. 47.14 UN Committee on Human Rights, General Comment Nº 17, (Art. 24 ICCPR), 1989, HRI/GEN/1/Rev.5, para. 3.15 Committee of CEDAW, General Comment Nº 24, Article 12 (Women and Health, A/54/38/Rev.1, cap. I., 1999, para.

17.16 Idem, para. 30.17 Convention on the Rights of the Child, Article 29: “1. States parties agree that the education of the child shall be

directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.”

18 Committee on the Rights of the Child. General Comment Nº 1, Aims of Education, para. 1 of Article 29, 2001, para. 28.

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to adopt measures to the maximum extent of the resources, with the purpose of achieving the full realisation of the rights recognised in them. Nevertheless, the specification of type, nature and scope of these measures in the financial and budgetary fields is not sufficiently defined yet, and that is why the Committee on the Rights of the Child has been asked to develop the issue in a General Comment.

What is the budgetary dimension that should be considered as part of the obligations established in Article 4 of the Convention on the Rights of the Child?

As we have seen, Article 4 of the CRC refers to the measures the State party is compelled to adopt:

“States parties shall undertake all appropriate legislative, administrative,

and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights,

States parties shall undertake such measures to the maximum extent of their available resources and, where needed,

within the framework of international co-operation.”

As we have previously seen, similar provisions —although with somewhat different phrasing—may be found in other human rights treaties. For example, the second paragraph of Article 2 of the International Covenant on Civil and Political Rights stipulates that:

“2. Each State party to the present Covenant undertakes to take the

necessary steps, in accordance with its constitutional processes and with

the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present

Covenant.”

Concerning the way in which such measures should be implemented, we have also seen that some comments have been issued, although not reaching the expected accuracy. In addition, it is worth mentioning that the way in which the UN Committee on Human Rights has referred specifically to the subject, a field where it has issued General Comments Nº 3 and Nº 31. The first one, issued in 1981, states in general terms that States parties can choose the method of implementation of the ICCPR in their territories; likewise, it says that an implementation based simply on a constitutional or legislative modification is not enough, stressing that the obligations do not only refer to the human rights included in the Covenant but also the full enjoyment of these rights by every individual under their jurisdiction.19

General Comment Nº 31, issued on May 26, 2004, replaced the previous one, although it gathered and developed the principles expressed by that one. Its core considerations focus mainly on legislative aspects, the need to have accessible and effective resources to claim rights and the commitment of all public authorities regarding the respect of rights. Regarding the economic aspects, it only referred to compensations for people whose recognised rights had been infringed.20

Regarding how to adopt measures to the maximum extent of available resources, even with the aid of the international cooperation

19 UNCHR. General Comment Nº 3 (1981). July 29, 1981, para. 1.20 UNCHR. General Comment N° 31 (2004). CCPR/C/Rev. 1/Add.13. May 26, 2004, paragraphs 4-16.

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in order to guarantee the effectiveness of the rights, we have already seen that the Committee on Economic, Social and Cultural Rights has analysed those obligations in General Comment N° 3, assumed by States parties of the Covenant. In that Comment, it stated that even if the States prove they do not have enough resources, their obligations remain to guarantee the enjoyment of the rights according to the circumstances. Thus, in times of shortages, people under the jurisdiction of a State party should be protected by the adoption of social assistance programmes.21

Regarding the Committee on the Rights of the Child, it has already made three statements on the issue, referring to the obligations of States parties according to Article 4 of the CRC. First, in General Comment Nº 1, when referring to the resources needed to execute comprehensive plans of action aiming to strengthen the fulfillment of paragraph 1, Article 29 of the CRC. Also in General Comment Nº 2, when addressing specifically

the role of independent national institutions of human rights, regarding the budget issue, the Committee mentioned that it corresponded to the national institution, noting that “Where resources are limited, consideration must be given to ensuring that the available resources are used most effectively for the promotion and protection of everyone’s human rights, including children’s, and in this context development of a broad-based NHRI that includes a specific focus on children is likely to constitute the best approach.” 22

Finally, the Committee has also referred to this important issue when they elaborated General Comment Nº 5, when there was a deeper discussion on the financial aspects aimed at guaranteeing the applicability of children’s and adolescents’ rights. In this General Comment, with reference to the implementation of the economic, social and cultural rights of children, it stated that the lack of financial or other types of resources could hamper the full implementation of these rights in certain States, which introduced the idea of ”progressive realisation” of said rights. Under these circumstances, however, “States need to be able to demonstrate that they have implemented ‘to the maximum extent of their available resources’, and, where necessary, have sought international cooperation.”

The Committee also declared that “The general measures of implementation identified by the Committee and described in the present general comment are intended to promote the full enjoyment of all rights in the Convention by all children, through legislation, the establishment of coordinating and monitoring bodies —governmental and independent— (…), child impact analysis, children’s budgets and “state of children’s rights” reports, NGO coalitions on children’s rights, children’s ombudspersons and children’s rights commissioners and so on. While some of these developments may

21 Committee on Economic, Social and Cultural Rights. General Comment N° 3 (1990). December 14, 1990, paragraphs 11 and 12.

22 Committee on the Rights of the Child. General Comment N° 2 (2002). CRC/GC/2002/2. para. 6.

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seem largely cosmetic, their emergence at the least indicates a change in the perception of the child’s place in society, a willingness to give higher political priority to children and an increasing sensitivity to the impact of governance on children and their human rights.” 23

It is important to point out that in this particular General Comment, the Committee clearly stressed the importance of appointing a “budget for children”. In this sense, the Committee added:

“51. In its reporting guidelines and in the consideration of States parties’

reports, the Committee has paid much attention to the identification and

analysis of resources for children in national and other budgets.24 No State can tell whether it is fulfilling children’s

economic, social and cultural rights ‘to the maximum extent of … available resources’, as it is required to do under

article 4, unless it can identify the proportion of national and other budgets

allocated to the social sector and, within that, to children, both directly and

indirectly. Some States have claimed it is not possible to analyse national budgets in this way. But others have done it and publish annual ‘children’s

budgets’. The Committee needs to know what steps are taken at all levels

of Government to ensure that economic and social planning and decision-making

and budgetary decisions are made with the best interests of children as a

primary consideration and that children, including in particular marginalized

and disadvantaged groups of children, are protected from the adverse effects

of economic policies or financial downturns.” 25

This way, the Committee is stressing that economic policies are not neutral in their impacts on children, thus it is necessary that children are not affected by programmes of structural adjustments, nor by the transition to a market economy. It also emphasizes the primary consideration of the best interest of the child and the need to recognise children in the public budget, as a group of priority protection.

Even when the conventional organs in the framework of the UN system (such as the Committee on Human Rights, the ESCR Committee, the CEDAW Committee and the Committee on the Rights of the Child) have insisted on the importance of budget allocation for the fulfillment of their obligations, there are still no instructions specific enough for this, except in the case of children’s rights, where the Committee has stressed the importance of having a budget for children, although there aren’t any detailed considerations on the issue.

Why do we need a General Comment on Article 4 of the Convention regarding specifically with budgetary measures in order to guarantee children’s rights?

As we mentioned above (and it is worth repeating), Article 4 of the CRC declares that States parties are compelled to adopt all administrative, legal and other measures —including budgetary— required to realise the rights recognised by the Convention. In this field, the budget is a crucial instrument

23 Committee on the Rights of the Child. General Comment N° 5 (2003). CRC/GC/2003/5. November 27, 2003, paragraphs 9-10.

24 General guidelines regarding the form and content of periodic reports to be submitted by States parties under Article 44, paragraph 1) of the Convention on the Rights of the Child, CRC/C/58, November 20, 1996, para. 20.

25 Committee on the Rights of the Child. General Comment N° 5 (2003). Op.cit. para. 51.

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by means of which governments fulfill or fail to fulfill their obligations regarding human rights. Budget allocations are, actually, one of the most clear indicators of the priorities governments attribute to human rights, beyond anything they might express publicly.

In general terms, budget issues have been analysed more in the field of economic, social and cultural rights, basically due to the progressive nature of some of the obligations related to the implementation of these rights, as well as by the obligations States have to implement measures in order to realise rights “to the maximum of their available resources”.

However, we must emphasize that including measures favouring children’s rights needs to be planned beyond these basic obligations, for it will always be necessary to strongly highlight everything done in favour of children, considering the corresponding special protection in the field of human rights. Thus, fulfilling the CRC demands adopting measures in all fields of the government in order to guarantee the adoption of decisions in economic and social planning, in decision-making, and in budget planning when the main consideration is the best interest of the child and that children should be protected against the side effects of economic policies and financial failure (whenever these occur, such as it is currently happening).

This situation calls for a greater clarification of the normative within the obligations regarding the budgetary nature that States parties should adopt to realise children’s rights, according to the binding obligations included in Article 4 of the CRC. This is why the Committee on the Rights of the Child has deemed it relevant to elaborate a General Comment establishing the conceptual framework of those obligations and, at the same time, providing guidelines on actual measures and required actions for States parties to fulfill them.

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In fact, it is important to mention that five years ago, on 21 September, 2007, the Committee on the Rights of the Child held a Day of General Discussion focusing on “Resources for Children’s Rights – Responsibility of the States “ (Article 4 of the CRC), where —in order to establish criteria on the required resources to realise the economic, social and cultural rights of children— some criteria and contributions were given on the following issues: 1) “resources available to the States” and their allocation for children; and 2) the use of resources “to the maximum extent.”

On that occasion, Save the Children restated that, in order to take a step forward to secure the validity of children’s rights, “we should overcome the mere budget analysis and adopt a comprehensive view recognising that economic reforms have an impact on children’s rights and, consequently, any impacts should be identified, as a requisite to the fulfillment of their rights, including events of indebtedness”. Among other aspects, it was proposed “that governments should involve (more and better) the civil society, and give priority to the allocation and execution of public budgets, not only in coverage and quality of basic social services, but also on other areas (the military, public debt)”.26

26 LIWSKI, Norberto. Day of General Discussion, “Resources for Children’s Rights – Responsibility of the States”, OHCHR, Palais Wilson, Geneva, September 21, 2007, REDLAMYC. http://www.google.com.pe/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEIQFjAE&url=http%3A%2F%2Fwww.redlamyc.info%

2FSeguim_Convenc_Derech_ninio%2FComite%2520derechos%2520del%2520ninio%2FRelatoria%2520Dia% 2520de%2520Debate%2520General%25202007.doc&ei=hMp0UYL_AdC80AHKoYGQBg&usg=AFQjCNGPsBfcl3q Y8XYlQELSDTCv4cW7Og&bvm=bv.45512109,d.dmQ

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PART 2

FURTHER INFORMATION

As a contribution to the process of clarifying and developing the obligations of the States regarding children’s rights, this section is addressed to interested parties (not necessarily familiar with the subject matter), presenting additional information on the General Comments and the role they play in this field with a particular focus on the Convention on the Rights of the Child and the protection and promotional mechanisms contained in it.

What is the Convention on the Rights of the Child (CRC)?

The Convention on the Rights of the Child (hereinafter, the Convention or CRC) was adopted by resolution 44/25 at the General Assembly of the United Nations on November 20, 1989, and came into force on September

2, 1990, after 20 States ratified it. Currently, the Convention has 193 State parties and is the most ratified international treaty in history. According to UNICEF, only Somalia and the United States have not ratified it: the first country on account of impossibility —there is no recognised government—, and the latter, in spite of its intentions, has not yet ratified it.27

The adoption of the CRC is the end of a progressive process of acknowledging and protecting children’s rights, which was developed throughout the twentieth century.28 The CRC recognises a wide spectrum of civil, political, economic, social and cultural rights reflecting the different situations where children and adolescents worldwide can be found, as well as the guarantees their protection should have.

The CRC has 54 articles recognising that all persons under the age of 18 have a right to a full physical, mental and social development, and to express their opinions freely.29

27 http://www.unicef.org/spanish/crc/index_30229.html28 CILLERO BRUÑOL, Miguel. “El Interés Superior del Niño en el marco de la Convención sobre los Derechos del

Niño”. http://www.iin.oea.org/el_interes_superior.pdf29 http://www.unicef.org/peru/spanish/convencion_sobre_los_derechos_del_nino__final.pdf

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The preparation process of the CRC began in 1979, proclaimed as the International Year of the Child, with a debate on a convention Project submitted by the government of Poland. There were also two other previous instruments: the 1924 Declaration of Geneva, and the 1959 UN Declaration of the Rights of the Child.30 Likewise, other specific regulations on children had already been incorporated into several treaties of international humanitarian law, as well as in different treaties on human rights that had been approved before 1979 in the UN and at a regional level.31

The Project of the CRC was elaborated by a working group set by the UN Human Rights Commission. Representatives of the governments were the group core, but representatives of specialised UN agencies, including the UN High Commissioner for Refugees (UNHCR), the International Labour Organization (ILO), the UN Children’s Fund (UNICEF) and the World Health Organization (WHO), as well as certain non-governmental organisations (NGOs), were present in the debate.32

The unanimous adoption of the CRC produced the favourable conditions for the later ratification and adherence by member States, and for establishing a committee —called the Committee on the Rights of the Child— in charge of supervising and monitoring. Thus, in less than a year, the CRC came into effect. It is currently considered the fastest treaty ratification in history.33

By decision of the very States parties, the CRC is over discriminatory visions of the cultural differences that block the construction of legal standards common to all people regarding their fundamental rights. Thus, different economic, cultural

and political realities have been considered in such a way that everyone may implement the expected measures with no interference with their own domestic legislative structure. In order to achieve such purpose, the CRC poses four fundamental principles which guide their interpretation and establish the implementation measures:

• Non-discrimination,

• Thebestinterestofthechild,

• Therightstoalife,survivalanddevelopment, and

• Respectfortheviewsofthechild.

Regarding the obligation of the States to respect the rights outlined in the CRC and to guarantee their implementation for every child within their jurisdiction, with no distinction at all,34 the Committee on the Rights of the Child maintained that in General Comment N° 5, the obligation of non-discrimination demands that the States actively identify children and groups of children whenever the recognition and effectiveness of their rights demand the adoption of special measures. The Committee has stressed the need for this data to be divided in order to identify existing or potential cases of discrimination.

The struggle against discrimination may demand —as noted by the Committee— modifications in the legislation, changes in the administration, modifications in the allocation of resources, and the adoption of education measures in order to achieve a change in attitude. We have to consider that the application of the non-discriminatory principle of equal access to rights does not mean that there should be an identical treatment in every instance, but —as it was mentioned

30 http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/145/78/IMG/NR014578.pdf?OpenElement31 To that effect, see Article 24 of the International Covenant on Civil and Political Rights, Article 10 of the International

Covenant on Economic, Social and Cultural Rights, and Article 19 of the American Convention on Human Rights.32 OHCHR. Fact sheet N° 10 (Rev. 1), children’s rights. http://www.ohchr.org/Documents/Publications/

FactSheet10Rev.1sp.pdf33 http://www.unicef.org/spanish/crc/index_30229.html34 UN Convention on the Rights of the Child, Article 2.

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in a General Comment of the Committee on Human Rights— it is especially important to adopt special measures to reduce or to rule out the conditions leading to discrimination.35

In the same General Comment N° 5, when addressing the implications of paragraph 1 of Article 3 of the CRC, regarding the best interest of the child as a primary consideration in all measures concerning children, the Committee also noted that:

“The article refers to actions undertaken by “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. The principle requires active measures throughout Government,

parliament and the judiciary. Every legislative, administrative and judicial

body or institution is required to apply the best interests principle by systematically

considering how children’s rights and interests are or will be affected by their

decisions and actions —by, for example, a proposed or existing law or policy or

administrative action or court decision, including those which are not directly concerned with children, but indirectly

affect children.”36

When addressing the inherent right of the child to life and the obligation of States parties to guarantee, to the maximum extent, the child’s survival and development (Article 6 of the CRC), the Committee said it “expects States to interpret ‘development’ in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. Implementation measures should be aimed at achieving the optimal development for all children.” And when addressing the right of the child to express their views freely on all matters affecting the child, those views being given due weight, the Committee said “This principle, which highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights, applies equally to all measures adopted by States to implement the Convention.”37

35 Committee on Human Rights, General Comment Nº 18 (1989), HRI/GEN/1/Rev. 6, p. 168 et seq.36 Committee on the Rights of the Child, General Comment N° 5 (2003), CRC/GC/2003/5, para. 12.37 Ibíd.

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The CRC has binding commitments regarding a broad set of children’s rights, and among the main rights recognised by the Convention are: the right to life; to a name and a nationality since birth; not to be separated from their parents (unless determined by relevant authorities based on the child’s well-being); to family reunion; to be protected from mental or physical harm; to subject of special protection in case of disability; to a free and mandatory primary education; to enjoy their leisure time to rest and play; to be protected from economic exploitation and any work interfering with their education or health; to be protected from abduction, trade or trafficking; to be protected from illegal drug trafficking; to be placed in separate cells in case they are under arrest; to be protected from capital punishment; not to engage in the event of armed conflict when the child is under 15; to enjoy their culture, religion, and language freely when they belong to an ethnic minority or indigenous population.

What are the Optional Protocols to the Convention on the Rights of the Child?

Frequently, human rights treaties include “Optional Protocols”, which could either set procedures regarding the treaty or develop certain contents of the treaty. Optional protocols of human rights treaties are themselves treaties on their own right, open to signature, accession or ratification of those country members of the main treaty. The Convention on the Rights of the Child has three optional protocols: 1) the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; 2) the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, both adopted on May 25, 2000 —the first one coming into force on February 12, 2002, and the latter on January 18, 2002—, and 3) the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, which was adopted by the UN General Assembly on December 19, 2011, and open to signature

27


and ratification on February 28, 2012. To date, six countries have ratified this third protocol: Gabon, Thailand, Bolivia, Germany, Spain and Albania —in order to come into force, the optional protocol needs ratification by ten countries.

The Optional Protocol regarding the involvement of children in armed conflict establishes an age limit of 18 in order to take part in hostilities or to be recruited, whereas the CRC established an age limit of 15 (after the age limit imposed by the Geneva Conventions of 12 August 1949).

On the other hand, the Optional Protocol regarding the sale of children, child prostitution and child pornography draws special attention to the criminalisation of these severe violations of children’s rights, and stresses the importance of promoting a greater public awareness and a greater international cooperation in all activities aiming to tackle them.

Regarding the third Optional Protocol, we have to note that it did not establish any mechanism to submit individual complaints, States parties being compelled only to submit reports addressed to the Committee on the Rights of the Child, describing the situation of children in their territories. However, this new protocol will strengthen the CRC methods of protection, providing children with the right to submit individual petitions before the Committee when their rights have been violated. The child or his/her tutors should have previously submitted a complaint before a national court. If the complaint has not been processed, they may turn to the Committee, presenting the case one year after the procedure has finished in national courts.

Currently, although the CRC has the highest number of ratifications by States parties, it is the last instrument of human rights where a proceeding to file a complaint for violations is not in force (third Optional Protocol).

With this Protocol, individuals, groups or representatives will have appropriate tools to report violations of their rights before an expert Committee; moreover, this will no doubt increase the recognition of children as subjects of rights, and lastly, the Committee may issue international jurisprudence and research.

On the other hand, accessing this Protocol could only occur if the petitioner has exhausted all national solutions; in other words, the legal stage at national level should have already finished. Likewise, the affected State has to have previously ratified the third Optional Protocol; that is, the affected State will be reported only under the regulations of the ratified treaties.

It is important to highlight that Optional Protocols are not automatically binding for the States who have ratified the original treaty. Their obligations are additional and may be more demanding that the original Convention, which is why States parties have to choose whether they wish to be bound to those protocols or not. In general, only the States who have ratified the CRC may ratify their Optional Protocols. Nevertheless, these allow non-party members to ratify or adhere to them.

What is the Committee on the Rights of the Child and what is its role?

The Committee on the Rights of the Child is an organ of independent experts who supervise the implementation of the CRC and its Optional Protocols.38 It holds three periods of sessions in Geneva, each lasting approximately four weeks; the last week is reserved for the preparation of the next period. The mandate of each member lasts four years. The quorum is made with six of its members, each with a right to vote. Decisions are approved by majority of members present.

38 http://www2.ohchr.org/spanish/bodies/crc/

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The Committee has two major roles in the execution of the supervision and monitoring of the implementation of CRC recommendations:

a. By virtue of Article 44 of the CRC, States parties accept the obligation of submitting regular reports to the Committee on the measures they have adopted which give effect to the CRC and their progress regarding children’s rights in their jurisdictions. Within two years of the entry into force of the Convention, and later every five years, they must submit reports indicating the status of the implementation of the obligations established by the CRC.39

b. Developing General Comments guiding the States parties to give effect to the arrangements within the CRC, through the analysis and interpretation of the obligations included in the Convention.

In January 1993, the Committee introduced an innovation in the procedure by recommending the UN General Assembly to request the Secretary General to conduct a study on the protection of children in

cases of armed conflict. This petition was the result of a “general discussion” on the issue, lasting one day and organised by the Committee in 1992, where several UN organs and non-governmental organisations working in the promotion and protection of children’s rights were invited to participate.

Since then, there have been several of meetings that came to be known as “Days of General Discussion” on issues such as economic exploitation of children, children’s rights in the family context or girls’ rights and juvenile justice. These theme discussions are celebrated once a year and can give rise to study petitions, and can also serve as a basis for interpreting articles of the CRC though the elaboration of General Comments.

The objective of the Days of General Discussion is to promote a better understanding of the contents and the issues of the CRC regarding certain regulations or specific themes. During these days, public discussions are organised among all active representatives in the promotion and protection of children’s rights. The guests are representatives of governments, non-governmental organisations, specialised UN mechanisms or departments related to human rights, as well as experts on the issue. Toward the end of the Day of General Discussion, the Committee determines recommendations which synthesize the core of the questions that arose, as well as from the answers discussed.

What are the General Comments of the Committee on the Rights of the Child?

General Comments are authoritative interpretations of the rights contained in the articles and provisos of the CRC, and the Committee, as the organ in charge of the

39 OHCHR. Fact sheet N° 10. Op.cit.

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promotion, interpretation and supervision of the obligations established in the CRC, uses its expertise to issue General Comments with the purpose of promoting the implementation of the CRC and to guide States parties in the fulfillment of their obligations.

In this sense, General Comments are invaluable contributions for the development

and implementation of international law on issues of human rights. They are useful tools for analysis; they explain properly the conventional obligations acquired by the states and can serve as guidelines regarding certain specific situations. General Comments are also useful to draw attention of States parties on the weak points of their reports, and to formulate suggestions intended to improve their reports.40

No. ISSUES CODE DATE

1. The aims of education.CRC/GC/2001/1 April 17,

2001

2.

The role of independent national human rights institutions in the protection and promotion of the rights of the child.

CRC/GC/2002/2November 15, 2002

3.HIV/AIDS and the rights of the children.

CRC/GC/2003/3March 17, 2003

4.Adolescent health and development in the context of the Convention on the Rights of the Child.

CRC/GC/2003/4 July 21, 2003

5.

General measures of implementation of the Convention on the Rights of the Child (Articles 4 and 42, and para. 6 from Article 44).

CRC/GC/2003/5November 27, 2003

6.Treatment of unaccompanied and separated children outside their country of origin.

CRC/GC/2005/6September 1, 2005

7 Rev.1

Implementing child rights in early childhood.

CRC/C/GC/7/Rev.1 September 20, 2006

40 NGO Group for the CRC. General Comments. Fact sheet: http://www.crin.org/docs/FileManager/NGOGroup/Fact_sheet_CRC_GC_SP.pdf

To date, the Committee has issued 17 General Comments:

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No. ISSUES CODE DATE

8.

The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (Article 19, para. 2 from Article 28, and Article 37, among others).

CRC/C/GC/8August 21, 2006

9.The rights of children with disabilities.

CRC/C/GC/9February 27, 2007

10. Children’s rights in juvenile justice. CRC/C/GC/10April 25, 2007

11.Indigenous children and their rights under the Convention.

CRC/C/GC/11 February 12, 2009

12. The right of the child to be heard. CRC/C/GC/12July 20, 2009

13.The right of the child to freedom from all forms of violence.

CRC/C/GC/13April 18, 2011

14. The right of the child to have his or her best interests taken as a primary consideration.

CRC/C/GC/14May 29, 2013

15.The right of the child to the enjoyment of the highest attainable standard of health.


16.On State obligations regarding the impact of the business sector on children’s rights.


17.The right of the child to rest, leisure, play, recreational activities, cultural life and the arts.


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Next we will see, briefly, what each of these Comments involve:

1. General Comment Nº 1 of the aims of education refers to paragraph 1 of Article 29 of the CRC. It notes that it is much more than a mere inventory or a list of objectives, and stresses the inter-dependent nature of the CRC regulations, the role of values and their importance in the promotion of schooling, of the education systems and the guarantee to access them, the need for no-discrimination and a holistic proposal to education. Likewise, it highlights the need to plan and to teach in a way it promotes and strengthen the variety of ethical values enshrined in the CRC, and emphasises both the special role of the adequate opportunities for education in the promotion of all other rights, and also the notion of indivisibility.

2. The Committee’s General Comment N° 2 refers to the role of independent national human right institutions in the promotion and protection of children’s rights, within the framework of the obligations stipulated in Article 4 of the CRC. It emphasises that these institutions not only represent an important mechanism for the promotion and

guarantee of implementation of the treaty, but also that it is a part of the commitment assumed by the States parties.

3. General Comment N° 3, on HIV/AIDS and the rights of the child, recognises the relevance of the infection and the syndrome, and examines the various rights violations to children’s rights they involve. Its objectives are: to deepen the definition and to strengthen the understanding of children’s human rights living in an environment marked by HIV/AIDS; to determine the measures and the best practices so the States can realise the rights related to HIV/AIDS prevention, and the support, assistance and protection for children affected, as well as contributing to the elaboration and promotion of plans of action, strategies, laws, policies, and programmes addressed to children with the purpose of tackling its spreading and alleviate the effects of HIV/AIDS at national and international levels.

4. General Comment N° 4 focuses on adolescents and recognises that States parties have not paid enough attention to the specific concerns of adolescents as holders of rights, nor to the promotion and development of their health. Based on those considerations, the Committee adopted this General

32


Comment with the aim of sensitizing Estates parties and facilitating guidelines and support in their efforts to guarantee the respect, protection and fulfillment of adolescents’ rights, also through the formulation of specific strategies and policies.

5. The fifth General Comment adopted by the Committee describes the obligation of States parties to adopt what has become known as “general measures of implementation”, which had already been anticipated in General Comment N° 2, further deepening the description of the concepts included in Article 4 and formulating the interpretative principles of the CRC.

6. The objectives of the sixth General Comment were: 1) to reveal the particularly vulnerable situation of unaccompanied children and children separated from their families; 2) to expose the multiple problems experienced by the States and other stakeholders in order to achieve that these children gain access to their rights and may enjoy them; and 3) to provide orientation on the protection, assistance and proper treatment regarding children, in light of the whole legal context represented by the CRC, especially regarding the principles of no-discrimination, the best interest of the child and their right to express their opinions freely.

7. The objectives of General Comment N° 7 were: 1) to strengthen the understanding of the youngest children’s human rights, and also to draw attention to the States parties on their obligations toward children in their early childhood; 2) to analyse the specific features of early childhood which have an impact in the realisation of their rights; 3) to encourage the acknowledgement of young children as social agents from the beginning of their existence, gifted with particular interests, capacities, and vulnerabilities, as well as their need for protection, orientation and support in the exercise of their rights; 4) to emphasise the existing diversity within the early childhood that need to be considered when implementing the CRC, including diversities in young children’s circumstances, in the quality of their experiences and in the influences shaping their development; 5) to analyse the differences regarding cultural expectations and treatment toward children, especially the local customs and practices which should be respected, except when they contravene children’s rights; 6) to understand the young children’s vulnerability in terms of poverty, discrimination, family breakdown and multiple other adversities that violate their rights and undermine their well-being; 7) to contribute to the realization of rights for

33


all young children through formulation and promotion of comprehensive policies, laws, programmes, practices, professional training and research specifically focused on rights in early childhood.

8. General Comment N° 8 focuses on corporal punishment and other forms of cruel or degrading forms of punishment, which are currently very widely accepted and practised forms of violence against children. In that sense, it highlights the human dignity and physical integrity of children, and their right to enjoy an equal protection before the law. When publishing this General Comment, the Committee wanted to highlight the obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children, outlining the legislative and other awareness-raising and educational measures that States must take.

9. The ninth General Comment refers to the rights of children with disabilities, it highlights their current situation in the world and children’s special vulnerability. It says that the majority of children with disabilities in the developing world have no education and are illiterate. It also emphasises that most part of the causes for disabilities, such as war, illness and poverty, are preventable, which in turn would prevent and reduce the secondary impacts of disabilities, often caused by the lack of early/timely intervention. Therefore, more should be done to create the necessary political will and real commitment to investigate and put into practice the most effective actions to prevent disabilities with the participation of all levels of society.

10. In the tenth General Comment, the Committee notes with appreciation the many efforts to establish an administration of juvenile justice in compliance with CRC. However, it is

also clear that many States parties still have a long way to go in achieving full compliance with CRC, e.g. in the areas of procedural rights, the development and implementation of measures for dealing with children in conflict with the law without resorting to judicial proceedings, and the use of deprivation of liberty only as a measure of last resort.

11. The main objective of General Comment N° 11 is to provide States with guidance on how to implement their obligations under the Convention with respect to indigenous children. The Committee bases this general comment on its experience in interpreting the provisions of the Convention in relation to indigenous children. Furthermore, the general comment is based upon the recommendations adopted following the Day of General Discussion on indigenous children in 2003 and reflects a consultative process with relevant stake holders, including indigenous children themselves.

12. General Comment N° 12 analysed Article 12 of the CRC, which is an unprecedented norm in a human rights treaty. It focuses on the legal and social condition of the child who, on one hand lacks the full autonomy of the adult but on the other hand is subject of rights. The objectives in this General Comment seek to: 1) strengthen understanding of the meaning of article 12, the individual and collective right of children to be heard and taken into account, and its implications for governments, stakeholders, NGOs and society at large; 2) elaborate the scope of legislation, policy and practice necessary to achieve full implementation of article 12; 3) highlight the positive approaches in implementing article 12, benefitting from the monitoring experience of the Committee; and 4) propose basic requirements for appropriate ways to give due weight

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to children’s views in all matters that affect them. General Comment N° 12 highlights the right of the child, noting that Article 12 is one of the four general principles of the CRC along with the right to non-discrimination, to life, and to development, and the primary consideration of the best interest of the child. This reveals that this article not only establishes a right in itself, but also it is to be considered when interpreting and realizing the other rights. The concept of participation emphasizes that including children should not only be a momentary act, but the starting point for an intense exchange between children and adults on the development of policies, programmes and measures in all relevant contexts of children’s lives.

13. General Comment N° 13 presented the following objectives: 1) to guide States parties in understanding their obligations under Article 19 of the CRC to prohibit, prevent and respond to all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation of children, including sexual abuse, while in care of parent(s), legal guardian(s) or any other person who has the care of the child, including State actors; 2) to outline the legislative, judicial, administrative, social and educational measures that States parties must take; 3) to overcome isolated, fragmented and reactive initiatives to address child caregiving and protection, which have had limited impact on the prevention and elimination of all forms of violence; 4) to promote a holistic approach to implementing Article 19 based on the Convention’s overall perspective on securing children’s right to survival, dignity, well-being,

health, development, participation and non-discrimination —the fulfillment of which are threatened by violence; 5) to provide States parties and other stakeholders with a basis on which to develop a coordination framework for eliminating violence through comprehensive child-based caregiving and protection measures; and 6) to highlight the need for all States parties to move quickly to fulfill their obligations under Article 19.

14. The fourteenth General Comment’s objective seeks to ensure the application of and respect for the best interests of the child by the States parties to the Convention. It defines the requirements for due consideration, especially in judicial and administrative decisions as well as in other actions concerning the child as an individual, and at all stages of the adoption of laws, policies, strategies, programmes, plans, budgets, legislative and budgetary initiatives and guidelines —that is, all implementation measures— concerning children in general or as a specific group. The Committee expects that this general comment will guide decisions by all those concerned with children, including parents and caregivers.

15. General Comment N° 15 is based on the importance of approaching children’s health from a child-rights perspective that all children have the right to opportunities to survive, grow and develop, within the context of physical, emotional and social well-being, to each child’s full potential. This general comment was prepared with the aim of providing guidance and support to States parties and other duty bearers to support them in respecting, protecting and fulfilling children’s

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right to the enjoyment of the highest attainable standard of health (hereinafter “children’s right to health”).

16. The sixteenth General Comment notes that States have obligations regarding the impact of business activities and operations on children’s rights arising from the Convention on the Rights of the Child (the Convention or the CRC), the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) and the Optional Protocol on the Involvement of Children in Armed Conflict (OPAC). These obligations cover a diversity of different issues reflecting the fact that children are both rights-holders and stakeholders in business as consumers, legally engaged employees, future employees and business leaders and members of communities and environments in which business operates. This General Comment aims to clarify these obligations and outline the measures that should be undertaken by States to meet them.

17. The most recent General Comment adopted by the Committee was N° 17, launched on April 17, 2013, and regarding the right of the child to rest, leisure, play, recreational activities, cultural life and the arts. The Committee is concerned by the poor recognition given by States to the rights contained in article 31. Poor recognition of their significance in the lives of children results in lack of investment in appropriate provisions, weak or non-existent protective legislation and the invisibility of children in national and local-level planning. In general, where investment is made, it is in the provision of structured and organized activities, but equally important is the

need to create time and space for children to engage in spontaneous play, recreation and creativity, and to promote societal attitudes that support and encourage such activity. The Committee is particularly concerned about the difficulties faced by particular categories of children, especially girls, poor children, children with disabilities, indigenous children, children belonging to minorities, among others.

What is the legal value and the usefulness of General Comments?

General Comments assist CRC States parties and interested stakeholders to better understand the provisions of this treaty. Thus they help strengthening the national support toward the CRC, along with its implementation, and can be used as a framework for the presentation of States parties periodic reports. Likewise, national courts can refer to the General Comments in order to clarify legislative regulations, and can encourage changes in legislation, and promote the discussion of specific issues which will lead to the full application of the CRC.

However, it would be wrong to assume that General Comments per se impose international obligations. The treaty (in this case, the CRC) is the one imposing international obligations on the States that have voluntarily ratified or adhered to it. The Committee on the Rights of the Child, as supervising organ of the CRC, functions as a supreme interpreter of its contents and its provisions. This way, it uses General Comments to interpret certain regulations when deemed necessary. General Comments, therefore, become interpretative criteria of the regulations within the CRC, issued by organs with authority to do so.

Relevant literature

1. NGO Group for the CRC. General Comments of the Committee on the Rights of the Child. Fact sheet. http://www.crin.org/docs/FileManager/NGOGroup/Fact_sheet_CRC_GC_SP.pdf

The text analyses in a clear and simple way the relevance of the Committee on the Rights of the Child’s General Comments, the selection of issues and their formation. It provides contact information of the organisations and people that need to be contacted in case there is a new proposal for a General Comment.

2. MUJICA, Javier. “Para ser mejores, para hacerlo mejor” (To be better, to do it better). Introductory manual to public policies programming with a human rights-based approach. Centro de Políticas Públicas y Derechos Humanos - Perú EQUIDAD, 2010.http://mipcooperacionbelga.files.wordpress.com/2010/03/para-ser-mejores.pdf

The author provides readers with an introductory synthesis of the elements that should be considered when elaborating public policies with a rights-based approach.

3. Office of the UN High Commissioner for Human Rights.Fact sheet N° 10 (Rev. 1), children’s rights. http://www.ohchr.org/Documents/Publications/FactSheet10Rev.1sp.pdf

This document works as a guide for the analysis of the Convention on the Rights of the Child and provides detailed information about these rights and their protection within the framework of the universal system of human rights protection.

4. STEENBERGEN, Víctor. “Frontloading Human Rights: A conceptual framework for Building Budging and Realising Rights”. Equal in Rights, 2001. http://www.equalinrights.org/library/resource/resource/frontloading-human-rights-a conceptual-framework-for-building-budgets-and-realising-rights/

The author provides a useful tool which defines the key concepts involved in “budget” and “human rights”, emphasizing the relevance of the subject. It analyses the human rights approach, the process of budget elaboration by the governments, their relation with the realisation of human rights and the important role of the civil society in the elaboration process.